' SHAHID ANWAR BAJWA, J.--- F.I.R. No,30 of 1999 was recorded at Police Station Gizri on 13-2-1999 at 0230 hours for an incident alleged to have taken place at 0100 hour on the same date.
Complainant was S.I./S.H.O. Mazhar Mishwani of that police station. He stated that on receiving spy information that four named drug peddlers (three of them the present appellants) were selling heroin and they were coming to Sea View via Khayaban-e-Itehad. A Police party left for surveillance, reached at the pointed place and stopped Car. P-5715. Present three appellants were found in the said car. Appellant No,3 was sitting on the driver seat and it is stated in the F.I.R. That one bag tied with plastic tape was found near his feet, it contained 5 kgs heroin powder. Appellant No,2 was sitting on seat next to driver's seat and one bag of heroin powder taped with plastic containing 5 kgs of heroin was lying in his lap and appellant No,3 was sitting on rear seat and one bag tied with plastic tape\ containing heroin powder weighing 5 kgs was recovered from him. Car was searched and in the root of the car two suitcases were found. From one suitcase four packets of heroin powder weighing 20 kgs and from other bag three packets of heroin powder each weighing 6 kgs were recovered. It was stated that recovered heroin was seized by the police and sealed at the spot. Culprits were asked to produce documents of ownership of car which they could not produce. Conscquently, car was taken to the police station and F.I.R. Was recorded.
2. At the trial I.O. Abid Zulfiqar appeared as P.W.1. This witness remained I.O. Till 25-5-2009. I.O.
Jehangir Khan appeared as P.W.2. Police constable Shamrez Khan, Mashir was P.W.3. Complainant Mazhar Iqbal was P.W.
4. Statement of appellants was recorded under section 342, Cr.P.C. Thereafter an application was filed under section 540 Cr.P.C. For reopening side of prosecution for examining P.W./Mashir Muhammad Riaz Mughal. This application was allowed and said Riaz Mughal appeared as P.W.5.
Thereafter again statement under section 342, Cr.P.C. Was recorded and finally vide judgment dated 31-12-2011 present appellants were convicted and sentenced to undergo imprisonment for life and to pay fine of Rs,One Million each. Co-accused Jehanzeb Khan was acquitted.
3. Learned counsel for the appellants made the following submissions:--
(i) Possession and recovery of narcotic material has not been proved. He pointed out that there was private Mashir Rab Nawaz who has not been produced and only Mashir Muhammad Riaz Mughal has been produced who did not support case of prosecution and consequently he was declared hostile witness.
(ii) Learned counsel submitted that property was not identified. He submitted that statement of complainant suffers from the contradictions and that he admitted that no sample has been drawn at the spot. He further admitted that Mashirs Riaz Mughal and Rab Nawaz have not stated about extraction of samples in their 161, Cr.P.C. Statements. Learned counsel submitted that in the Mashirriama no sealing of property is stated. He submitted that no sample was drawn.
(iii) Learned counsel submitted that the samples were sent are claimed to be taken on 13-2-1999 and they were received by the Chemical Examiner on 1-6-1999 and there is no evidence as to where did this property remain all this while. He further submitted that in the Mashirnama no sealing of property is stated and both P. Ws. Nos.1 and 2 stated that they had not dealt with the samples. Learned counsel submitted that P.W.1 stated that he made no application to the Court for permission to destroy the property in question. P.W.2 stated that he moved an application before the Court for permission before the Special Judge Narcotic whereby he requested for permission of taking samples after desealing the property in Court He submitted that while this application was pending report of Chemical Examiner was received and, therefore, property was not desealed.
4. Learned counsel submitted that on 16-1-2001 an order was passed by the Special Court permitting destruction of the property but the Court at the same time ordered that 10 samples of 100 grams be taken out of total substance recovered by the complainant and thereafter same be sealed in presence of Court and then rest of the substance be destroyed. Learned counsel submitted that neither such samples were produced nor any document has been produced showing that samples were taken. He submitted that on 29-7-2000 2nd Additional Sessions Judge had ordered that the property be not disposed of till final decision of the Sessions Case. Learned counsel submitted that while obtaining order from the Special Judge this particular order was not pointed out or disclosed.
5. Learned counsel also read from the destruction certificate and his contention was that even destruction certificate indicates that property has been tampered with. Learned counsel relied upon case-law to which we shall refer at its due place.
6. Arguments in this case started on 6-9-2012 when part of paper book was read. Such reading continued on 13-9-2012 when reading of paper book was finished and matter was adjourned to 20- 9-2012 with Specific direction that it would be taken up at 10-00 a.m. On 20-9-2012 the following order was recorded:-- "Reading of paper book was completed on 13-9-2012 and matter was adjourned for today with fixed time at 11-00 a.m. Today when the case was called at 11-00 a.m. Special Prosecutor ANF was not present and a junior counsel stated that he was busy in Sessions Court. The matter was kept aside and it was stated that it will be taken up at 12-00 noon. It was taken up at 12-00 noon and Special Prosecutor, ANF was again called absent. Learned counsel for the appellant has concluded his arguments. Judgment is reserved. Special Prosecutor ANF, if he so deems advisable may submit synopsis of his written argument by 24-9-2012."
7. Special Prosecutor ANF on 24-9-2012 submitted written synopsis of arguments. In written synopsis of arguments it has been submitted that star witness is P.W.4. It is stated that 53 kilograms of heroin was recovered, sample was drawn at the spot and Mashirnama was prepared.
It is submitted that property was destroyed after order was passed by the trial Judge and destruction was made strictly in accordance with law. It is further stated that Chemical Examiner's report was positive. As far as declaring P.W.5 hostile is concerned, it is stated in the arguments that there is corroboration of place of arrest and recovery in his statement and, therefore, no adverse inference can be drawn from the statement.
8. We have considered submissions made by the learned counsel and have also gone through the record.
9. First question is as to how and when samples were drawn. In the F.I.R. After stating recovery it was mentioned as under:-- "Therefore, the aforesaid recovered heroin were seized by the police and sealed-up on the spot.
The aforesaid accused persons were duly arrested. The culprits were asked about the ownership evidence/documents of the aforesaid car, which they could not produce. Therefore, by suspecting the above car to be stolen property taken into police possession as evidence under section 550, Cr. P. C. "
10. In the body of Mashirnama there is no mention of taking samples. However, in the margins of Mashirnama as last line with a different pen it is written "at the spot from each of the heroin bags 10 grams per bag were taken for examination." It is pointed out that there is no statement even in the Mashirnama that the samples were sealed. It may also be noted that in the Mashirnama there is no statement that the recovered property was sealed. If Mashirnama and F.I.R. Are read together, F.I.R. Does not talk about taking any sample but only talks of sealing of recovered property.
Mashirnama talks of taking Samples (though with different pen and in the margin), but does not state sealing either samples or the property. P.W.4 the complainant in this regard stated as under:- - Out of the recovered heroin sample of ten grams from each packet were taken out. All the samples and the remaining heroin were sealed at the spot. Such memo of recovery and arrest was also prepared at the spot."
11. The witness produced three empty cloth bags and claimed that these were bags in which heroin was recovered from present three appellants. In respect of these bags he submitted as under:- "At present those 03 tapped heroin packets mentioned in F.I.R. And in Mashirnama are not produced in the Court today. It is correct to suggest that I have produced today only three empty cloth bags in place of three tapped heroin packets mentioned in F.I.R. It is correct to suggest that in Mashirnama of recovery Exh. P/10 it is not mentioned that those three recoveries were sealed in cloth bag at the spot."
' Regarding sampling in cross-examination he stated as under:-- "It is correct to suggest that F.I.R. Does not show the samples were drawn from the case property at the spot in presence of Mashirs. It is correct to suggest that 161, Cr.P.C. Statement of P. Ws. Riaz Mughal and Rabnawaz does not show that at the spot samples were drawn from the case property and were weighed and sealed."
' Regarding writing of Mashirnama he stated as under:-- "Exh.P/10 Mashirnama of recovery was reduced in writing by Munshi. I do not remember his name.
It is incorrect to suggest that all the contents of Mashirnama from first to last line is in one hand whereas the names of the Mashirs and other particulars written on the other side are in different hand and written in different time."
' He also stated that at the police station he handed over case property to Sub-Inspector Faryad Bhatti and thereafter he had no concern with case property.
12. A perusal of the above indicates that it is stated that heroin was recovered from three persons in cloth bags. However no cloth bags were stated either in the F.I.R. Or in Mashirnama. Witness admitted that taking of samples is neither stated in F.I.R. Nor in 161, Cr.P.C. Statement of P.W.5. He also admitted that Mashirnama was written by a Munshi whose name he did not remember. He admitted that last line of margin regarding taking samples is written by different hand and at a different time.
13. P.W.4 stated that he handed over case property to Faryad Bhatti. Faryad Bhatti is not one of the witnesses. P.W.1 Abid Zulfiqar stated that on 23-2-1999 investigation was transferred to him. There is absolute gape as to what happened between 13-2-1999 when alleged incident took place and narcotic material was taken in possession and on '23-2-1999 when investigation was handed over to P.W.1. Thereafter witness stated as under:-- "On 24-2-1999 I took over custody of 53 Kgs of heroin which was contained in two suitcases and three packets and personal search of accused under such road Certificate."
' Witness also stated as under:-- "The case property has been destroyed under section 516-A, Cr. P. C. Produce the parcel of cotton' cloth covers of the suitcases as Article-D. The two suitcases lying in the Court are the same, as Article-E and Article-F."
' Lastly, witnesses stated that on 21-5-1999 investigation was transferred to Jehangir Khan who appeared as P.W.2. During cross-examination P.W.1 admitted as under:-- "It is correct that in my tenure I had neither seen the samples nor sent to the Laboratory. It is not correct to say that writing of the margin of Ex. P/5 and in main body in different hand and different ink."
' He also stated as under:-- "It is correct that the F.I.R. Does not talk of taking of the samples and in 161, Cr.P.C. Statement of Rabnawaz and S. -I. Riaz. Vol. Says that taking of samples has been mentioned in the Mashirnama."
14. Reading of the above indicates that Abid Zulfiqar who became Investigating Officer on 23-2- 1999 was given only custody of 53 Kgs. Heroin: He admitted that he had neither seen samples nor sent them to the Chemical Examiner. He handed over investigation to P.W.2. P.W.2 regarding report received from the Laboratory stated as under:-- "Report of the sample which was sent to the laboratory was received. I produce the chemical report as Ex.P/8. The heroin has been destroyed under orders of the Court. Samples of the destruction were taken. I produce the same of destruction contained in Khaki envelope as Article- G. It contains 10 samples each of 100 Grams."
' He did not state anything about sending samples Report of Chemical Examiner stated that property was received by them on 1-6-1999 along with letter dated 13-2-1999.
15. Now it is the stage to look at the cumulative effect of this evidence in respect of samples:--
(i) F.I.R. Does not state that samples were taken.
(ii) 161 Cr.P.C. Statement does not state that samples were taken.
(iii) Mashirnama does state that sample was taken but it is written in the margin with different pen and it does not talk of sealing them.
16. Regarding writing it is admitted by the witness that it was written by a Munshi and was not written at the spot. It is also admitted that at the spot there was not enough light to read or write.
Case property was given by P.W.5 to Faryad Bhatti. He has not appeared as witness. P.W.1 took over investigation on 23-2-1999. He stated only about receipt of the property and did not state anything about the samples. He continued with investigation till 21-5-1999 when it was transferred to P.W.2.
He stated that he had not seen samples. In the meanwhile, an application was made to the Court for desealing property and taking samples for sending them for examination. Before that could be done report was received from the Chemical Examiner. Samples reached Chemical Examiner on 1- 6-1999 though they were sent on 13-2-1999. On 13-2-1999 P.W.4 stated that he handed over samples and recovered substance etc. To Faryad Bhatti. The latter did not appear as a witness.
Next Investigating Officer Abid Zulfiqar had neither sent samples not had ever seen them. Question is that who took samples, when did he take them, when did he seal them and who sent samples to Laboratory and where did samples remain between 13-2-1999 to 1-6-1999 when they were received by the laboratory. There are all these holes in story as put forward by prosecution which have not' been even plausibly, much less adequately explained by the prosecution. It is settled law that a single doubt is enough for giving benefit of doubt to the accused person.
17. In view of our above discussion we set aside impugned judgment, allow this appeal and acquit the appellants by granting them benefit of doubt. They shall be released forthwith if not required in any `other case.