Appellant Khuda Bakhsh son of Moula Bakhsh has been convicted under Article 4 of the Prohibition (Enforcement of. Hadd) Order, 1979 for being found in possession of about 20 grams of heroin vide judgment, dated 19-3-1991 and sentenced to suffer R.I. For 2 years and -to pay a fine of Rs.1,000 or in default to suffer further R.I. For one month. The appellant has also been awarded 10 stripes. He has now appealed against the said judgment.
2. F.I.R. In respect of the offence was lodged against the appellant by P.Ws. Abdur Rahman on 9-7- 1990 at 9-30 p.m. At Police Station Kalri. Karachi. According to the allegations made against the appellant, on the said date when H.C. Abdur Rahman, P.W.3 was on patrol duty alongwith P.C.
Jamal Shah and P.O. Fayyaz on reaching Mauripur Road they received spy information that one person was standing at New Chand Bus Stop under suspicious circumstances. On receipt of the said information they went to the said place and found the appellant standing there. The police party then caught hold of the appellant and from his search recovered one plastic bag from one of his pockets which was found to contain 20 grams of heroin. The contraband was then weighed and sealed at the spot.. The police party then brought the accused and the contraband to the police station where H.C. Abdur Rahman lodged a First Information Report: The same was recorded by A.S.I. Imran Khan P.W.2. The contraband was also sent to the Chemical Examiner for inspection and the gross weight of the packet was found to be 19.170 grams and its net weight was found to be 17.590 grams. The appellant was then challaned before the learned Third Additional Sessions Judge to stand his trial.
3. The appellant in his statement recorded under section 342, Cr.P.C. Denied the aforesaid allegations and stated that he had been falsely implicated in the case on account of his refusal to become a police witness.
4. The prosecution examined three witnesses namely Jamal Shah, P.W.1, Imran Khan, P.W.2 and Abdur Rahman, P.W.3 and on the basis of their evidence the learned trial Court found the appellant guilty of the offence with which he had been challaned and sentenced him as pointed out earlier.
The learned trial Court came to the conclusion that no enmity had been alleged by the appellant against any of the prosecution witnesses and therefore, their evidence was to be accepted and since all of them had fully implicated the appellant the case of the prosecution was found to have been fully established against him.
5. I have heard Mr. Abdul Hafeez Lakho, learned counsel for the appellant .And Mr. Zaheeruddin Qureshi, learned counsel for the State and have also gone through the record of the case. Although it is true that the appellant has not alleged any enmity against the prosecution witnesses but one cannot be oblivious of the fact that the entire evidence against the appellant consists of the statements made by the Police Officers and no independent witness was examined by the prosecution. No doubt, Police Officers are competent witnesses and their testimony can be relied upon unless any motive is attributed to them to implicate the accused falsely but when no independent 6 witness is produced by the prosecution the Court must scrutinize the evidence produced against the accused with utmost caution. In the first instance, Mr. A.H. Lakho has invited my attention to certain contradictions which can be found in the evidence of the prosecution witnesses. First of all, according to P.Ws. Jamal Shah and Abdur Rahman who are also said to be the eye--witnesses of the incident, spy information had been received by them on the date of the incident in respect of the appellant being in possession of heroin when the witnesses were on patrol duty on Mauripur Road. Neither the description of the accused nor any other details about his identity were supplied to the said witnesses. Nevertheless the witnesses picked up the appellant who was found to be standing at the bus stop known as Chand Bus Stop. Secondly; according to the witnesses, the appellant was seen standing in a suspicious manner, however, no explanation is given as to the manner in which the appellant was seen standing by the witnesses which could distinguish him from the rest of the people at the spot. Further contradiction can be found in the evidence of P.W. Jamal Shah and P.W. Abdur Rahman as according to the former, the appellant was seen standing at the truck stand while according to the latter he was seen standing at Chand Bus Stop. No doubt, the two places can be in a close proximity of each other but it is again for the prosecution to explain this glaring contradiction. Another factor which renders the evidence of the witnesses unreliable is that according to both the witnesses, the heroin powder was weighed at the spot and was found to contain 20 grams of the contraband. P.W. Abdur Rahman who was cross- examined at length by the accused's counsel, although admitted that he was not carrying any scale or weights with him at the time-of the arrest of the accused and recovery of the contraband but the witness has further explained that the powder was weighed at a cabin on the scales provided by the cabin shop keeper. The shop, according to him, was a Kiryana Shop and weights in grams were available there. This, in my opinion, was, an evidence of material importance which should have been brought on record during the examination-in-chief of the said witness and not during his cross-examination. In any case, if the version given by the witness in this regard in the cross-examination is true, the prosecution. I am certain, would have examined the said cabin shopkeeper as a witness in the case because being an independent witness his evidence would have been of immense importance to the prosecution. The very fact that such witness was not examined by the prosecution renders the explanation given by P.W. Abdur Rahman untrustworthy.
The circumstances enumerated above clearly indicate that the case of the prosecution against the appellant is not free from doubt. No doubt, incidence of trafficking in drugs is becoming highly common these days and any person convicted for such an offence must be dealt with an iron hand, but at the same time a balance has to be maintained by the Courts and care must be taken that no innocent person is sent to jail merely because he has been charged with such an offence.
Whatever be the circumstances but it is always the duty of the prosecution to prove its case against the accused beyond a shadow of doubt. If the prosecution has failed in this duty the benefit of the same must go to the accused. Needless to say that the prosecution has completely failed to prove the case against the appellant beyond doubt.
6. In the result, this appeal is allowed and the appellant is acquitted. Since the appellant is in custody he may be released forthwith if he is not required in any other case.