1. JUDGMENT.
2. The appellant Fida Hussain son of Muhammad Ramzan Ansari was tried by the learned Second Additional Sessions Judge, Khairpur who also convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 vide judgment, dated lfi-9-1987 and sentenced him to undergo R.I. For twelve months and fine of Rs.5,000 or in default of payment of fine to undergo R.I.
3. For three months more. By this appeal, the appellant has now challenged his said conviction and sentence.
4. The case of the prosecution is that, S.H.O. Muhammad Hashim Memon of P.S. Tando Masti alongwith his staff was on patrolling duty on 14-2-19gh. On the same dad at about 4-00 p.m. When he reached near Sim Nali, he saw the present appellant, who was stopped and searched. From his left leg socks, 5 packets of heroin powder were recovered which were secured in the presence of Mashirs P.C. Mumtaz Ali and P.C. Ghulam Sarwar under a Mashirnama prepared by the S.H.O. The heroin powder was also weighed at the spot. It was 12. Grams including the wrappers. The same was also scaled at the spot. Thereafter the accused and the case property were brought at the police station where the S.H.O. Lodged the report. After completing the investigation, the accused was also challaned. He was tried, convicted and sentenced as already mentioned above.
5. At the trial, the prosecution examined P.W.1 Muhammad Hashim whose evidence is Exh.4, who also produced the Mashirnama of recovery Exh.5, F.I.R. Exh.6 and the chemical report as Exh.7. The second witness examined is P.W.2 H.C. Mumtaz Ali who supported the recovery, and also corroborated the evidence of P.W.1 Muhammad Hashim. After examining these two witnesses the prosecution closed its side.
6. The statement of the accused under section 342, Cr.P.C. Was recorded as Exh.l2, he denied the allegations and claimed to have been falsely implicated due to enmity and claimed that he was innocent. He repeated the same version in his statement on oath Exh.13. The accused, however, examined D.W.1 Kazi Fazal Muhammad Exh.14 and D.W.2 Miral Exh.15.
7. I have heard Mr. G.M. Soomro, learned counsel for the appellant and Mr. Zawar Hussain Jafferi, learned A.A.-G. For the State. The latter has supported the conviction of the appellant.
8. The learned counsel for the appellant has argued that the two Mashirs are police constables and no private witness was taken in this case. He further argued that the weight of heroin was less than 10 grams. Therefore, the Sessions Court had no jurisdiction to try the appellant fee also argued that the case property was never produced in the Court as such it cannot be said in what manner the property was found and whether the property was really in the packets as alleged.
9. I have gone through the evidence on record with the assistance of the learned counsel for the appellant and I find that P.W.1 Muhammad Hashim has fully deposed against tile appellant. He has stated that he alongwith his staff were on patrol duty when they arrested the appellant near Sim Nali. He also states that on search of appellant 5 packets of heroin powder were recovered from the left leg socks of appellant which was weighed at tile spot -and was found to be 12 grams. It was seized under a Mashirnama in presence of constables Mumtaz Ali and Ghulam Sarwar. The property was scaled at the spot. Similarly P.W.2 Mumtaz Ali also narrates the same facts in his deposition and supports the prosecution case by stating that he was with P.W.1 while patrolling they had detained the accused and on his personal search 5 packets of heroin were recovered from inside his left socks which was secured at tile spot under a Mashirnama and was also scaled by the S.H.O. At the spot.
10. No doubt both the witnesses have fully implicated the appellant, but there are two circumstances in the case which directly affect the veracity of both the witnesses and render their evidence to be doubtful.
11. The first circumstance is with regard to the sealing of the case property. The Mashirnama Exh.5 and the evidence of both the witnesses clearly indicate that the property was sealed at the spot. The Mashir P.W.2 Mumtaz Ali states in his cross-examination that he had also signed the bundle. This will go to show that the 5 packets of heroin were kept together in a paper a cloth and made into a parcel which was sealed at the spot and the signature of Mashir Mumtaz Ali was obtained on it. On perusal of the chemical report Exh.7, it is quite apparent that g different parcel was sent for, chemical examination and not the one which was secured from the appellant.
12. The chemical report Exh.7, shows that the parcel which was sent for examination was one sealed white cloth parcel with the name of appellant and F.I.R. No.8/86 written on it containing 5 plastic packets. Obviously this cloth parcel was made subsequently, because the original parcel of the 5 plastic packets sealed at the spot could not contain the F.I.R. Number, because the F.I.R. Was not lodged at the time of sealing. Furthermore the cloth parcel mentioned in the chemical report does not show the signature of Mashir Mumtaz Ali, whereas the Mashir Mumtaz Ali claims to have signed the original parcel made at the spot. Therefore, it is quite apparent that the parcel sealed at the spot was certainly different from the parcel which was sent for chemical analysis.
13. Coupled with the above observation, there is another important circumstance. In this regard it may be noted that the recovery was made on 14-2-1986. The S.P. Khairpur gave the permission for test analysis vide his letter dated 26-2-1986, but it was delivered in the office of the chemical examiner on 16-4-1986 by constable Khadim Hussain, as mentioned in the chemical report. This means that S.F. Khairpur had given the permission on 26-2-1986 but it was delivered to the examiner after a delay of one month and 20 days. Now the important questions are, where was the property kept, under whose control was it, was it the same parcel which was secured from the accused or was it a different parcel that was sent to the chemical examiner. In order to remove these doubts, the prosecution was duty bound to produce the case property in Court for the examination of the actual parcel, Unfortunately not only there is no explanation on record for thus delay in sending the property to the chemical examiner, but, the case property, that is the-parcel concerned was never produced in the Court at any stage, with the result the appellant was deprived from putting any questions to the witnesses in respect of the parcel concerned. As such, in the circumstances of this case, non- production of the parcel in Court during the evidence of the witnesses, casts serious doubts, regarding the recovery itself and also suggests foul play on the part of the investigating agency, regarding the parcel that was sent to the; chemical examiner, for, it has already been discussed that the parcel sealed at s the spot and the parcel sent to the chemical examiner appear to be different.
14. The cumulative aspect of my above discussion is, that the prosecution has not been able to prove its case beyond all reasonable doubt, therefore, the appellant is entitled for the benefit of doubt.
15. Consequently, the conviction and sentences of the appellant are set aside, he is acquitted of the charges levelled against him.
16. By a short order, dated 23-4-1992, the appeal was allowed. These are the detailed reasons for the same.
17. N.H.O./F.189/K