ABDUL MAALIK GADDI, J.---Through this appeal, the appellants have assailed the legality and propriety of judgment dated 09.12.2006 passed by learned Special Judge (C.N.S)/Ilnd Additional Sessions Judge, Hyderabad in Special Case No, 147 of 2004 for offence under Section 9(c) Control of Narcotic Substances Act, 1997, whereby they were convicted and sentenced to suffer R.I for 10 years each and, to pay fine of Rs,50,000/- each. In case of default in payment of fine, they were to undergo S.I for 06 months more. Benefi t of Section 382-B, Cr.P.C. was extended to the appellants.
2. Brief facts of the prosecution case as per FIR are that on 06.09.2004, SIP/SHO Syed Zulfiqar Ali Shah of Railway Police Station Hyderabad was present at Railway Station Hyderabad along with his subordinate staff and subsequently went on checking the train and when they reached at Power Plant Bogie No,5725, they found one person being Railway employee who disclosed ,his name to be the present appellant presently posted as Plant Operator , Train No,06 DN Rawalpindi, having a plastic shopper of blue colour with some substance had handed over to accused Shahid Haroon and said Shahid Haroon proceeded hurriedly . He was stopped and apprehended.
The shopper was secured and opened which, contained opium. On inquiry he disclosed that accused Muhammad Bashir delivered the same to him. Then they arrested both the accused and weighed the opium which became 2200 grams, out of which 50 grams were sealed separately for sending the same to the chemical analyzer . Such memo of arrest and recovery was prepared in presence of mashirs HC Muhammad Hanif and PC Mehtab Khan.
Thereafter , accused and case property were brought at the police station where the complainant lodged FIR No,42 of 2004 at Police Station Railway Hyderabad.
3. After registration of FIR, complainant/I.O. himself investigated the case, examined witnesses under section 161, Cr.P.C, dispatched substance to the Chem ical Examiner , collected report in positiv e and submitted charge sheet in the court of law for of fence punishable under section 9(c) of CNS, Act, 1997.
4. The charge against the accused was framed under Section 9(c) Control of Narcotic Substance Act, 1997 at Ex.6, to which they pleaded not guilty and claimed to be tried.
5. Prosecution in order to prove its case , examined PW-1 complainant/I.O. SIP Zulfiqar Ali Shah at Ex.9, who produced the memo of arrest and recovery at Ex.9/A, FIR at Ex.9/B, departure entry No,28 at Ex.9/C, entry No,39 arrival back at P.S. at Ex.9/D, report of the chemical examiner at Ex.9/E and atteste d photocopy of letter addressed to the Chemical Examiner Karachi at Ex.9/F and P.W-2/mashir ASI Muhammad Hanif Mughal at Ex.12. thereafter learned DDA closed the prosecution side vide statement at Ex.13.
6. Statements of appellants under Section 342, Cr.P.C. were recorded at Ex.14 and 15 respectively , in which they claimed false implication in this case and denied the prosecution allegations. They further stated that they have no concern with the alleged opium and it has been foisted upon them. Accused Muhammad Bashir stated that he has been falsely implicated due to the official enmity and he does not know co-accused Shahid Haroon; he has produced two certificates list of workers working with him, character certificate at Ex.14/A to 14/E respectively .
Accused Shahid Haroon has stated that he was passing from railway station going towards his shop when the police asked him to become witness of recovery from accused Bashir , for which he refused, therefore, he has been falsely involved in this case. Both the accused neither examined themselves on Oath nor they adduced any evidence in their defence.
7. Learned Special Judge after hearing the learned counsel for the parties and examining the evidence available on record, convicted and sentenced the appellant as stated above, hence this appeal.
8. Brief facts of the prosecution case and the evidence find an elaborate in the judgment of the trial court and need not to repeat the same to avoid unnecessary repetition.
9. It is pertinent to mention here that appellant No,2 Shahid Haroon after compl etion of his sentence has been released from the prison. Such fact has also been verified through letter of Superintendent Central Prison Hyderabad dated 13.04.2010, available on record. Facing this situation, the learned counsel for the appellant Shahid Haroon has already not pressed this appeal therefore, same was dismissed as not pressed to the extent of appellant No,2 Shahid Haroon vide order dated 25.05.2010. Under these circumstances, we would confine ourselves only to discuss the case of appellant No,1 Muhammad Bashir .
10. Learned counsel for the appellant Muhammad Basheer submits that appellant is innocent and has falsely been involved in this case. He further submits that alleged opium has been foisted upon him. He submits that the alleged incident took place on 06.09.2004 at the Railway Platform where the general public was available there but the complainant failed to associate any person of the locality to witness the recovery proceedings. He further contended that no proper mashirnama was prepared as the fact about aluminium sheet recovered as wrapper over the opium is not mentioned in the mashirnama. He further contended that the sample sealed for chemical analysation was weighed on small scale, called through PC Mehtab and such fact is not mentioned in the mashirnama whereas mashir ASI Muhammad Hanif says that it was weighed on small scale. He further contended that as per mashirnama a diary of Badam i colour was recovered from the accused Muhammad Basheer but the diary/short note book produced before the trial court bears the cover of green colour. He further contended that Ex.9/E available on the record shows that sample of contraband item received by the chemical examiner on 16.07.2004 prior two months before the incident. He further contended that the parcels were sent to the chemical examiner through letter No,2593 dated 07.09.2004 under Annexure. 9/F but the record does not reflect the letter No,2593 and so also no date is mentioned in the said letter . Ex.9/E also does not show that through whom the case property was sent to the chemical examiner . He therefore, contended that as per record, it appears that nothing has been recovered from the possession of accused/appellant Muhammad Basheer . He further submits that there are material contradictions in the evidence of the prosecution witnesses which have not been considered by the trial court. He lastly contended that in this case complainant SIP Zulfiqar Ali Shah himself has investigated the matter , therefore, the evidence collected by the I.O. of the case cannot safely be relied upon.
11. On the other hand, Mr. Lutufulllah Arain, learned D.A.G. and Syed Meeral Shah. learned Additional Prosecutor General Sindh, appearing for the State have opposed this appeal on the grounds that the contradictions pointed out by the learned counsel for the appella nt are minor in nature which can be ignored; that the proper mashirnama was prepared at the place of incident; that there is no enmity between the PWs and the accused; that the property was properly sealed at the place of incident and the report of the chemical analyzer is in positive; that the provisions of Section 103, Cr.P.C. are not applicable in the case in hand. They lastly concluded that the prosecution has proved its case against the accused beyond any shadow of doubt.
12. We have carefully heard the learned counsel for the parties and scanned the entire evidence with their assistance.
13. As observed above, the appellant No,2 Shahid Haroon after completion of his sentence has been released from the prison and his appeal has been dismissed as not passed therefore, we would only discuss about the case of appellant Muhammad Basheer . In our considered view the prosecution has failed to prove its case against the appellant for the reasons that on 06.09.2004, complainant SIP/SHO Syed Zulfiqar Ali Shah of Railway Police Station Hyderabad was present at Railway Station Hyderabad along with his subo rdinate staff and subsequently ., went on checking the train and when they reached at Power Plant. Bogie No,5725 Tezro, they found the present appellant presently posted as Plant Operator , Train No,06 DN Rawalpindi, having a plastic shopper of blue colour with some substance had handed over to co-accused Shahid Haroon and said Shahid Haroon proceeded hurriedly .
He was stopped and apprehended. The shopper was secured and opened which contained opium. On inquiry said Shahid Haroon disclosed that accused Muhammad Bashir delivered the same to him. It is surprising to note that the complainant who is also I.O. of the case arrested the accused from Railway Station but he did not bother to associate any independent person from the place of incident though there was availability of the private persons at the place of occurrence. It has been brought in evidence that the place of incident was also surrendered by the shops and hotels and it was day time incident but despite of this fact, the complainant did not make any effort to collect any private person from the locality to witness the recovery proceedings. No doubt that the evidence of police official is as good as that of any other witness but when the whole prosecu tion case rests upon the police officials and hinges upon their evidence and when the private witnesses were available at the place of information or at the place of incident then non-association of private witness in the recovery proceedings create some doubt in the prosecution case. It is settled principle that the judicial approach has to be conscious in dealing with the cases in which testimony hinges upon the evidence of police officials alone. We are cons cious of the fact that provisions of Section 103, Cr.P.C. are not attracted to the cases of personal search of accused relating to the narcotics.
However , when the alleged recovery was made on railway station which is meant for passing the general public and shops and hotels were available there as happened in this case, omission to secure the independent mashirs, particularly , in the case of checking the train cannot be brushed aside lightly by the court. Prime object of Section 103, Cr.P.C. is to ensure the transparency and fairness on the part of the police during course of recovery , curbs false implication and minimize scope of foisting of fake recoveries upon accused. As observed above, at the time of recovery from appellant, complainant did not associate any private person to act as recovery witness and only relied upon his subordinates and furtherm ore he himself registered the FIR and investigated the case. In our view, investigation officer of police or such other force, under section 25 of Control of Narcotic Substances Act, 1997 was not authorized to exclude the independent witness. It does not do away with the principle of producing the best available evidence. No doubt that no specific bar exists under the law against complainant who is also the investigation officer of the case, but being the complainant it cannot be expected that an investigation officer he will collect any material which goes against the prosecution or gives any benefit to the accused. Evidence of such officer therefore, is a weak piece of evidence and for sustaining a conviction it would require independent corroboration which is lacking in this case. We are supported with the case of Nazir Ahmed v.The State , reported in PLD 2009 Karachi 191 and Muhammad Khalid v. The State , reported in 1998 PCr.LJ 808. Hence as observed above, due to non-association of independent witness as mashir in this case, false implication of the appellant cannot be ruled out. We have also noted the number of contradictions in the evidence of the prosecution witnesses with the able assistance of learned counsel for the appellant and when confronted these contradictions to the learned D.A.G. and A.P.G, they could not reply satisfactorily . Some of those contradictions for the sake of convenience are reproduced hereunder:-- "The diary of Badami colour has been mentioned in the FIR and mashirnama while in the Court the diary of green colour has been produced.
The SHO says that the sample 50 grams was weighed on the same government scale but again he stated that the said sample was weighed over small scale which was later on called from Police Station through PC Mehtab and said scale always remained at police station but this fact is not mentioned in the mashirnama.
PW-1 says that he has sealed the opium in a cloth of white colour and it was plan cloth while PW-2 says that he has sealed the same on the directions of SHO.
PW-1 says that the place of arrest is about three farlong away from PS Railway while PW-2 says that it is at the distance of 2/3 minutes dive from the Railway Station.
The SHO says that all the formalities were completed within thirty five minutes while PW-2 says it took forty five minutes.
The SHO says that he arrested both the accused and weighed the opium while the PW-2 says that he arrested the accused Bashir on order of the SHO.
The PW-2 has contradicted the PW-1 that his statement was recorded on the same day which is 06.09.2004 but when he was confronted with his statement under section 161, Cr.P.C. he admitted that it bears the date 07.09.2004."
Apart from the above there also appears other number of contradictions in the evidence of the prosecution witnesses which have not been considered by the learned trial court at the time of delivering the judgment.
14. According to the case of prosecution, opium was recovered from the possession of accused on 06.09.2004 but the chemical examiner's report shows that it was sent to the office of chemical examiner on 16.07.2004 about two months prior to the incident through letter No,2593 but the annexure 9/F does not reflect the letter No,2593 and so also no date is mentioned in the said letter . It also does not show that through whom the case property was sent to the chemical examiner . It appears that the prosecution has failed to establish the safe custody of opium at Malkhana during this intervening period. Safe transit to the chemical examiner has also not been proved. Even otherwise the chemical examiner has not been examined in this case who was the best witness to corroborate the evidence of prosecution in respect of the examination of case property therefore, adverse presumption would be taken. In such circumstances, we are unable to rely upon the evidence of the police officials without any independent corroboration which is lacking in this case. Moreover , WHC of the police station with whom the case property was deposited in Malkhana has also not been examined to satisfy the court that the charas was in safe custody . In this regard reliance is paced upon the case of Ikramullah and others v. The State (2015 SCMR 1002 ), the relevant portion is reproduced hereunder:-- "5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner . In this view of the matter the prosecution had not been able to establish that after the alleged recovery , the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
15. In our considered view, prosecution has failed to prove that the charas was in safe custody for the aforementioned period. Even positive report of the chemical examiner would not prove the case of prosecution.
There are also several circumstances which create doubt in the prosecution case. Under the law if a single doubt is created in the prosecution case, it sufficient for recording acquittal. In the case of Tariq Pervez v. The State (1995 SCMR 1345 ), the Honourable Supreme Court has observed as follows:-- It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
16. While relying upon the aforesaid authorities and keeping in view the material discrepancies, in the prosecution case, we have no hesitation to hold that the prosecution has failed to prove its case against the accused Muhammad Basheer . Resultantly , the impugned judgment dated 09.12.2006 passed by learned Special. Judge (C.N.S)/IInd Additional Sessions Judge, Hyderabad only to the extent of accused Muhammad Basheer is set aside.
The appeal is allowed. Appellant Muham mad Basheer is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety discharged.