1. ' This is an appeal against the judgment passed by learned IVth Additional Sessions Judge, Larkana in Sessions Case No,274 of 1991 State v. Mthammad Mureed whereby convicting him and passing a sentence of two years' R.I. And fine of Rs,5,000 or in default to suffer further R.I. For four months on 26-1-1994 under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. ' The brief facts of this appeal are that on 4-5-1991, A.S.I. Abdul Rasheed Mangi of "B" Section Police Station, Larkana alongwith other staff while patrolling the area, received spy information that one person with white clothes was selling heroin near the bridge of Abri Wah. On the basis of that information police party proceeded towards the bridge and found one person available there in suspicious position. They captured him and secured one plastic bag containing wrappers wherein heroin powder was kept. The powder was weighed and found to be 11 grams. Mashirnama was prepared. Three grams of heroin were separated and sealed in separate parcel for despatching it to Chemical Examiner whereas 8 grams were sealed separately. The accused was brought at police station where A.S.I. Abdur Rasheed Mangi registered case against him being himself complainant on behalf of State.
3. ' Trial Court framed charge against the appellant under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979 and then examined A.S.I. Abdul Rasheed Mangi and P.C. Habibullah Shah Mashir and closed the site. Appellant denied the allegations made against him, in his statement recorded under section 342, Cr.P.C. And further stated that he has been involved in this case due to enmity with one Ishaque Mangi, a relative of A.S.I. Abdul Rasheed Mangi.
4. ' Trial Court framed the following two points for determination:--
(1) Whether the accused was found in possession of 11 grams heroin powder?
(2) What offence, if any, the accused has committed?
5. ' Trial Court after giving reasons by discussing the evidence recorded, came to the conclusion that appellant was found guilty under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and was, therefore, convicted, as mentioned above.
6. ' Mr. Gul Bahar Korai, Advocate for appellant has argued that appellant has been convicted by the trial Court without appreciating the legal as well as the factual points submitted by the appellant at the time of trial. He contends that there are material contradictions in the depositions of complainant A.S.I. Abdul Rasheed Mangi and Mashir P.C. Habibullah Shah which go to the root of the case and a clear benefit of doubt is created. He has pointed out the contradictions as under:- ' A.g.I.13, Abdul Rasheed stated ' P.C. Habibullah Shah stated
(1) We were on foot during patrolling.
(2) I have asked the private persons to act as Mashir but they refused.
(3) First I caught hold the accused.
(1) We were on Government vehicle.
(2) The A.S.I.P. Did not ask any private person to act as Mashir.
(3) P.C. Rustam first caught hold the accused.
7. ' He has further stated that only three grams out of 11 grams of heroin have been separated for the purpose of chemical examination and that too have been sent after three months and 20 days to the Chemical Examiner's Laboratory after its recovery, as such, no reliance can be placed on the report of Chemical Examiner as its evidentiary value has minimized. Learned counsel has also argued that as per statement of P.W. Habibullah Shah Mashir, the property was weighed at Police Station, Mashirnama was also signed at the police station and that property was also sealed at police station, therefore, this alleged recovery of heroin and the preparation of Mashirnama etc. Has got no value in the eyes of law. He, therefore, prays that the conviction and sentenced passed against the appellant be set aside and appeal may kindly be allowed.
8. ' Mr. Yar Muhammad Abbasi, Advocate appearing on behalf of AA.-G. Has conceded to the submissions made by learned counsel for appellant and did not support the conviction and sentence passed against the appellant.
9. ' I have gone through the impugned judgment, the depositions of witnesses examined by the trial Court, Chemical Examiner's report and other relevant documents and have come to the conclusion that learned trial Court has not appreciated the contradictions, infirmities and the belated sending of three grams of heroin separated for the purpose of chemical examination to the Chemical Examiner's Laboratory. According to case of prosecution, A.S.I. Abdul Rashid had received spy information with regard to the selling of heroin at Abri Wah near Shaikh Zaid Hospital, Larkana, even then he did not bother to collect any private person to act as Mashir. The trial Court has held in its judgment that evidence of police officials is as good as of any other witness, but that is in different circumstances. In this case, this recovery from appellant is said to have taken place at 11-30 a.m.
10. Which is the day time and presence of private person cannot be ignored, specially when the place of recovery is located in a thickly populated area of Larkana Town. As per deposition of P.W.
11. Habibullah Shah, the property was not only weighed and sealed at police station but the Mashirnama was also signed by him at police station. This piece of evidence shakens the entire evidence and brings the case within the ambit of benefit of doubt. Admittedly as per Chemical Examiner's report, three grams of heroin were despatched on 25-8-1991 for the purpose of chemical examination which is after a period of about three months and 20 days and no explanation has been given for this belated sending of the property.
12. ' So it cannot be said as to what had happened with this property during the period of three months and 20 days while the same, according to the deposition of A.S.I. Abdul Rasheed, was lying in Malkhana this is a clear case where benefit of doubt is made out. As such, the conviction and sentence passed against the appellant is not maintainable, same is set aside and appeal is allowed.
13. ' Since the sentence of appellant was suspended during the pendency of appeal and he was released on bail as such, his bail bond stands cancelled and surety discharged.
14. ' These are the reasons of my short order dated 7-5-1995.