This is an appeal on behalf of appellant Zahir Shah son of Nazim Shah directed against the judgment in Sessions Case No. 306 of 1987 whereby the appellant was convicted by the learned District and Sessions Judge (West) Karachi and sentenced to undergo R.I. For two years and fine of Rs.1,000 (Rupees one thousand only) in default to suffer further R.I. For three months more. He was also sentenced to undergo whipping of three stripes, the appellant has challenged the impugned judgment. Briefly, the prosecution case is that on 27-6-1987 the Inspector of Excise namely Mr. Shoukat Bukhari lodged an F.I.R. At 5-30 p.m. Against the appellant under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 and challaned the accused on 5-7-1982 in the Court of A.C.M.I1I, Karachi who sent up the case for trial to the Court of Sessions Judge (West) Karachi. The prosecution casdrinfolded in the F.I.R. Is that the Inspector of Excise in a Company of Khan Baig and Bashir Hussain Shah E.T.I. And other Excise staff in presence of two mashirs namely Farid son of Mohammad Bashir and Sarfraz son of Khasta Khan apprehended suspect appellant and from his personal search one packet of Gold Flake Cigarettes was recovered from the right side pocket of the shirt which the appellant was wearing, it contained 30 `Purls' weighing 15 grams including the wrapper and on further search nothing incriminating was recovered from the appellant who was put under arrest as the `Purls' contained heroin powder. The material (heroin) was secured and packed in two separate packets 2-1/4 grams out of which was sealed and prepared for sending it to the Chemical Analyser and the appellant after arrest was brought to the Excise Office where he lodged the F.I.R. On 12-8-1987 a formal charge was framed to the following effect:- "On 27-6-1987 at 2.15 P.M. On a footpath near Rashid Manzil, Old Golimar, you were found to be in possession of 15 grams of heroin and thereby committed an offence punishable under Section 4 of the Prohibition (Enforcement of Hadd) Ofder, 1979 as amended upto date and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the aforesaid charge."
The appellant did not plead guilty to the charge.
2. In support of the case, the prosecution examined Muhammad Farid as prosecution witness No.1 (Exh.5) who produced the Mashirnama as Exh.6 which is dated 27-6-1987, and Shaukat Bukhari, the Excise Inspector who is also the Investigating Officer as P.W.2 (Exh.7) who produced the F.I.R. As Exh.8 and report of the Chemical Analyser as Exh.9. On 14-4-1988 the learned Prosecutor Incharge of the case before the trial Court vide his statement as Exh.10 closed the prosecution side.
3. On the same day the appellant was examined under section 34/2, Cr.P.C. And the appellant denied the prosecution case and the charges against him. According to the appellant, the prosecution witnesses had deposed against him at the instance of police. He offered himself to be examined under section 340(2), Cr.P.C. Consequently, the appellant was examined on oath, vide Exh.12 on record. In his statement the appellant further reiterated that his residence is in Golimar and there was dispute between his father Majid and Haji, with whom the Inspector Shaukat Bukhari was friendly who have got him involved in the present case and claimed his innocence. He further contended that Majid is an --employee of Excise. He was cross-examined and in the cross- examination no question has been asked by the learned D.P.P. Incharge of the case to disprove appellant's contention. After examining the record and on consideration of the statement, the learned Sessions Judge (West) Karachi passed the impugned Judgment and convicted the appellant as mentioned above, hence this appeal.
4. Mr. Mohammad Ramzan assisted by Mr. Noor Mohammad Xhan has appeared for the appellant and Mr. Masood Shaheryar, learned counsel appeared for the State. Both the learned counsel have taken me through the evidence on the record and the appellant's counsel while pressing the appeal has contended that the prosecution has failed to prove the case beyond reasonable doubt.
He further argued that the two Mashirs out of whom only one Mashir namely Mohammad Farid as Exh.5 has been examined and he is an interested witness. It is also contended and argued that the place of occurrence was populated area where there are houses and shops but no independent witness has been examined. According to the learned advocate for the appellant Mashir who has produced Mashirnama as Exh.6 is the only Mashir examined namely Farid he is resident of Nazimabad and there is no vocation or proper address given out by him in the said Mashirnama. It is vehemently contested that on the record there is no evidence to show that the possibilities of false implication of appellant in the present case cannot -be overruled in that it has been vehemently argued that according to F.I.R. The incident occurred on 27-6-1987 at 12-15 p.m.
Whereas the Mashirnama was prepared at 12.15 p.m. On 27-6-1987. It is also pouted out by the appellant's counsel that after preparation of Mashirnama the appellant was arrested and taken to the office as admitted by the Mashir in the evidence he had gone to the office on the next day and gave his statement. It is further pointed out from the chemical analysers' report the element of concoction is apparent. It has been found from the chemical analyser's report as Exh.9 on the record that the letter addressed to the chemical analyser was received in the laboratory on 30-6- -1987 under a Letter No.44/87 which was dated 26-6-1987. It adversely reflects upon the prosecution case as according to the prosecution the incident occurred on 27-6-1987 but the letter to the chemical analyser was sent on 26-6-1987 one day in anticipation to the actual date of occurrence. It is als,) pointed out that the letter was written by Inspector Bashir Hussain Shah who is neither a witness no: was examined by the prosecution and in the evidence the Excise Inspector Shaukat Bukhari had stated that he had sent only 5 `Puris' for the examination to the chemical analyser the remaining 25 `Puris' remained with him. The envelope containing the `Puris' of heroin was alleged to have been signed by the Mashirs but in the evidence it is not anywhere mentioned that Muhammad Farid the only Mashir examined was as having signed envelope containing heroin `Puris'. It is also vehemently argued that Muhammad Farid had belied the Inspector of Excise as according to him the Inspector Shaukat Bukhari was not known to him prior to the incident but on the other hand the Inspector of Excise Mr. Shaukat Bukhari had admitted in evidence:- "It is also correct to suggest that Muhammad Farid had acted as a Mashir in one of my cases but his evidence has not yet been recorded."
During the arguments it was vehemently urged that the other co-Mashir Sarfraz has been given up and the Inspector of Excise had admitted in his deposition on oath that Mashir Sarfraz was cited as Mashir in two more cases investigated by him. He also admitted that the place of incident: was surrounded by the houses and shops and had taken Sarfraz with him before raiding the spot where Muhammad Farid met him accidentally and in the Court Mr. Farid was brought by him for evidence. The appellant was charged for having been found in possession of 15 grams heroin whereas only 2-1/4 grams was despatched to the chemical analyser and the not weight of the powder said to be heroin was found to be 1.810 grams by the chemical analyser. On a Court question Mr. Masood Shaheryar had no answer to the infirmity (?) inconsistency pointed out so far as I date of despatch of material to the chemical analyser was concerned or the actual weight found inconsistent in the evidence. The letter under which the article (heroin) was sent for chemical report has not been produced in the trial Court nor the author of the letter examined. It has come in the evidence that the raiding party besides the complainant comprised of Inspector Khan Baig, Bashir Hussain Shah and about 15 constables but none of them is examined by the prosecution.
The inconsistency of date in the chemical Analyser's report has gone unexplained and it gives rise to reasonable doubt that the letter was prepared much before the actual occurrence of the incident.
For the above reasons I feel persuaded to hold that the contention of the appellant's counsel so far as foisting of heroin is concerned cannot be overruled in these circumstances. On careful consideration of the evidence on record it has been controverted satisfactorily, I am inclined to extend the benefit of doubt to the appellant and I am of the view that due to the infirmity/inconsistency existing on record the impugned judgment cannot be H sustained as it appears that the learned trial Judge has not cared to examine the evidence properly. Accordingly the impugned judgment dated 2-5-1988 is set aside and Appeal No.86 of 1988 in Case No-306 of 1987 is allowed. The appellant though ordered-to be released on bail by this Court did not file security. The appeal was heard and decided by me on 4-12-1988 by my short order and above are the reasons for the same.
Appeal stands allowed.