' By judgment, dated 13-7-1994 passed by the learned Sessions Judge, Hyderabad, in Session Case No.529 of 1991, appellant Ahmed Shah son of Ali Muhammad Shah has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to R.I. For five years, ten stripes and a fine of Rs.20,000 and in default in the payment of fine to suffer R.I. For one year more. Being aggrieved, the appellant has filed the present appeal. I have heard the arguments of Mr. Khadim Hussain Unar, learned counsel for the appellant, and Mr. Habib Ahmad, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.
2. In this case, the F.I.R. Was lodged on 4-9-1991 and the complainant is Excise Inspector, Riazul Hassan (P.W.1). According to the complaint, on 4-9-1991, on spy information, an Excise Police Party was constituted and, after obtaining the search warrant, the house of the accused was raided and on his search 12 grams of heroin was found from his person and 12 grams of heroin powder was contained in 10 Puris kept in a plastic Theli. According to the complaint, the powder was weighed at the spot and separately sealed and the empty Purism were also sealed separately on the spot. The appellant was arrested and, after completion of the investigation, he was challenged. In the trial, the appellant pleaded not guilty. The prosecution examined only two witnesses, namely, complainant Excise Inspector Riazul Hassan as P.W.1 and Head Constable Excise Muhammad Ibrahim as P.W.2. These two witnesses stated about the raid and the recovery of heroin from the person of the appellant from his house. Reliance was also placed by the prosecution on the Chemical Examiner's report (Exh.9), according to which the powder which was sent for chemical analysis was found to be heroin.
3. In support of the present appeal it has been argued by Mr. Khadim Hussain Unar, learned counsel for the appellant, that there is violation of section 103, Cr.P.C. It was pointed out that, according to the evidence of P.W.1 Riazul Hassan, he had received spy information in his office on 4-9-1991 that a person was selling heroin in his house situated in Unit No.4, Tando Noor Muhammad, Hyderabad, and that, before leaving the Excise Office with a raiding party, he had called two Mashirs, namely Mahmood and Javed. Admittedly, these two witnesses were not examined at the trial as, according to the Excise Inspector, these two Mashirs became untraceable and he had also obtained boilable warrants to ensure their presence in Court, but their whereabouts could not be traced and there was no possibility of tracing them in the near future.
4. In this case, there is violation of mandatory provisions of section 103, Cr.P.C. The Excise Inspector had advance spy information and was going to raid a house and, therefore, he should have ensured that two respectable witnesses from the public were associated in the recovery proceedings. This was admittedly not done. On the contrary, two witnesses, namely, Mahmood and Javed, were allegedly called at the Excise Office and they accompanied the raiding party to the house of the appellant. Even these two Mashirs, namely, Mahmood and Javed, were not examined and the explanation given by Inspector Riazul Hassan that they were not traceable and there was no possibility in the near future of their availability cannot be accepted. If these two Mashirs had been called at the Excise Office by the Inspector, it would follow that the two Mashers were known to the Excise Inspector previously. A doubt has been created whether these two witnesses, namely, Mahmood and Javed in fact existed. The argument of learned counsel for the appellant that these two so-called Mashirs were fictitious persons cannot be brushed aside lightly.
5. Apart from the violation of mandatory provisions of section 103, Cr.P.C., in this case as only two Excise officials have been examined by the prosecution, their evidence has to be scrutinized closely and with great care and caution. On a close scrutiny of the evidence of Excise Inspector, Riazul Hassan and Head Constable Muhammad Ibrahim it is found that there are material discrepancies and other infirmities which create a serious doubt as to the prosecution case against the appellant.
' The color of the powder recovered is described by the two witnesses as off-white whereas, in Exh.9, Chemical Examiner's report, the colour of the powder is given as light brown. Then according to the F.I.R., and the evidence of the two witnesses, the heroin powder was contained in ten Puris and, according to the Excise Inspector, the empty ten Purism were sealed separately. However, according to the Chemical Examiner's report, the articles contained in the parcel received from the Excise Office are described as follows:-- "White paper covered one plastic Thiel containing light brown cultured fine powder along with eight empty Puris of paper."
From the Chemical Examiner's report it follows that there were eight Puris, but, according to the evidence of the two prosecution witnesses, there were ten Puris which had been recovered from the person of the appellant. This material discrepancy has not been explained in the evidence of the prosecution.
' There is also discrepancy about the powder having been recovered from the Puris only as, according to P.W.2 Head Constable Ibrahim, 12 grams of heroin had been recovered not only from the Puris, but also from a Theli. The exact words used by P.W.2 Muhammad Ibrahim in his examination-in-chief about the recovery are as under:-- "Then the Excise Inspector conducted the personal search of the accused and secured one plastic Theli from the right side pocket of his shirt. The Theli was opened which contained off-white powder appeared to be heroin. The Excise Inspector had also secured 10 small paper Puris from the pocket.
They were also opened which also contained off-white powder appeared to be heroin. Both the powder were mixed up with each other and then it was weighed in a scale. The weight of the heroin came to be 12 grams."
' The version given by Head Constable, Muhammad Ibrahim about the recovery contradicts the entire prosecution case as contained in the F.I.R. Arid also their star witness Inspector Riazul Hassan.
6. The aforesaid contradictions and infirmities have created a serious doubt as to the prosecution case. In this context reference may be made to a recent decision of the Supreme Court of Pakistan in the case of Tariq Pervaiz v. The State 1995 SCM R 1345, which was also a case under the Prohibition (Enforcement of Hadd) Order, 1979. The following observation in the said judgment of the Supreme Court is pertinent to the present case:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a 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."
7. For the aforesaid reasons, I am of the view that the prosecution had not established its case against the appellant. This appeal is, therefore, allowed; the judgment, dated 13-7-1994 of the Sessions Judge, Hyderabad, is set aside and the appellant acquitted of the charge. The appellant is directed to be released forthwith if not required in any other case.