1. Aggrieved against the judgment passed by learned VIth Additional Sessions Judge, Karachi dismissing appeal against the order of conviction recorded by the Additional City Magistrate Excise and Docks, South Karachi, whereby applicant has been convicted under section 43(3) of Abkari Act, 1878 and sentenced to R. I. For four months and a fine of Rs. 500 in default of payment of fine further sentenced to R. I. for one month, this present revision application has been filed.
2. Shortly stated the prosecution case is that on 29-11-1976 at about 9-55 p.m. Excise Police party apprehended applicant/convict in-front of house of his brother Sabruk near Ahmed Hotel in Pool Pati Lane, Kalri Karachi and allegedly recovered from him 20 pawas of charas from the pocket of his shirt. Recovery memo. Was prepared by Zulfiqar A.I Khan S. I. Excise and attested by Mashirs Islamuddin and Shahzada. F. I. R. Was registered on the same day by Zulfiqar A.I Khan as complainant. Before the Court of Additional City Magistrate two witnesses were examined namely Shahzada who is admitted having signed Mashirnama Exh. 2-A and Zulfiqar A.I Khan complainant and Investigating Officer. The other Mashir Islamuddin was not examined. Applicant/convict in his statement under section 342, Cr. P. C. Has denied the allegation of prosecution and recovery of alleged contraband from his possession and further stated that he has been falsely implicated by Excise Police and the Mashirs in the case were stock witnesses of Excise Police. He led no evidence in defence. The learned Magistrate passed order of conviction which suffers from legal infirmities in the sense that no reasons are given for coming to the conclusion that prosecution has proved its case against the accused beyond doubt. After giving the resume of evidence of the prosecution of prosecution in a very short last but one paragraph the learned Magistrate has stated that the accused has not produced any evidence in his defence to prove his innocence and merely saying that Mashir Islamuddin who was present in the Court on that day was given up by prosecution. Is not sufficient to imply that accused was falsely implicated and further that prosecution case gone unchallenged and evidence on the record is sufficient to prove the guilt of accused. I am afraid these are not the reasons in the eyes of law which are to be given by the Court while convicting the accused. The evidence is to be discussed in detail and the Court has to come to the conclusion whether it believes the prosecu--petition witness or witnesses and if so for what reasons. It is the duty of the prosecution to prove the case against the accused beyond doubt and it is not the duty of the accused to his prove the prosecution case. Burden of A proof invariably lies on the prosecution. The order passed by the learned Magistrate cannot be sustained and is not an order passed according, to law.
3. Before the Appellate Court it is stated that on behalf of the convict an application was made for bringing on record certified copies of four challans to show that Shahzada and Islamuddin had both appeared in four cases on behalf of the Excise Police. Alongwith that there was an affidavit of the apple--cant/accused mentioning 14 other cases in which they had appeared as stock witnesses. This application under section 428, Cr. P. C. Was granted by the learned Additional Sessions Judge on 29-5-1979 but unfortunately there is no mention of this evidence in the judgment of Appellate Court. The perusal of record indicates that Mashir Shahzada according to his own admission in his evidence resided in Sabrina Hotel near Bara Imam Karachi and has further admitted in his cross-examination that distance of Sabrina Hotel from the place of incident is aboutmiles. In view of this clear cut admission in the evidence of this witness, it is not understandable as to how the learned Additional Sessions Judge case to the conclusion that this Mashir is employed in Ahmad Hotel. The deposition of the Mashir Shahzada does not show that he had stated so any place that he was employed, in Ahmad Hotel. This observation is not consistent with the record. Furthermore Mashir Shahzada has admitted in his cross-examination that he has signed Mashirnama at the police station and not at the place of incident. Secondly the finding of the Appellate Court that appearance of Mashir Shahzada in one other case on behalf of the Excise Police is not enough to make him a stock witness is also not borne out from the record because not only the Mashir himself admitted having appeared in other cases also on behalf of the Excise Police but as stated above four certified copies of challans were produced and there was affidavit of the accused in which 14 other cases were mentioned in which it is stated that this witness has appeared on behalf of the Excise Police. The application under section 428, Cr. P. C. Was granted by the Addition Sessions Judge and in that case that evidence was available on the record and should have been considered by the Appellate Court.
4. Another interesting feature of this case is that the Courts below have acted upon certificate issued by the Excise Officer which has been brought on the record as Exh. 3-B which is to the effect that the material allegedly recovered from the possession of the accused was certified to be charas.
5. Such certification under the law is to come from an expert and not from the Officer of the Excise.
6. The learned counsel has cited before me 1976 P Cr. L J 643 in which it is clearly held that as per requirements of section 45 of Evidence Act such certification that the material recovered is contraband must come from expert witness and the conviction recorded in a case in which reliance was placed on the statement of Officer of Customs and Excise proving the recovery of charas was set aside. In the instant case also no reliance can be placed on the certificate of the Excise Officer that the material recovered from the possession of the accused was charas.
7. It is also contended before me that in the instant case as per the prose--cution evidence accused was arrested first and then his personal search was made. It has been pointed out that under section 38 of the Abkari Act all searches are to be made in accordance with the provisions of the Criminal Procedure Code. In the result the search under Criminal Procedure Code can be made either under section 51, Cr. P. C. Or under section 103, Cr. P. C. And as it appears that the requirements of both these sections have not been complied with by the, Investigating Officer in the instant case. Section 103, Cr. P. C. Requires that witnesses must be from locality and in the instant case it appears that witness Shahzada is not from the locality. In view of what; is stated above it is obvious that the Judgment of the two Courts below are not consistent with the material available on the record and suffer from legal infirmities and are not maintainable. In these circumstances I come to the conclusions that prosecution has falled to prove the case against the accused beyond doubt and the Judgments of the two Courts below are not .Maintainable as such they are set aside. In the result the applicant is acquitted. He is present in the Court on bail. His bail bond is discharged.
8. Application is accordingly allowed.