' Appellant Muhammad Altaf son of Muhammad Saeed has filed this appeal challenging the judgment, dated 14-9-1995 passed by the learned VIth Additional Sessions Judge, Karachi South, in Sessions Case No,16/95 whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to R.I. For '3 years, 20 stripes and a fine of Rs,5,000 and in default to suffer further R.I. For 6 months. I have heard in detail the arguments of Mr. Abdul Majeed, 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. The appellant has been convicted for having been found in possession of 20 grams of heroin when he was searched on 20-12-1994 at 21-45 hours. F.I.R. In this case, being Crime No,127/94, was lodged at Police Station Napier, Karachi South, under Articles 3 and 4 of the Prohibition Order, 1979, on the complaint of P.W.1 A.S.I. Muhammad Pervaiz (the seizing Officer, the complainant as well as the Investigating Officer). Prosecution version has been described in brief in para. 2 of the impugned judgment which is reproduced here:-- "Briefly, as per F.I.R. Prosecution case is that complainant Muhammad Pervez on 20-12-1994 at.
About 21-45 hours was on duty along with police party, consist on H.C. Muhammad Sharif and P.C.
Muhammad Shafiq and they were patrolling in the area. They reached Kachi Gall No,1, Jodia Bazar, Karachi and found a suspicious person who disclosed his name as Muhammad Altaf son of Muhammad Saeed and on his personal search a plastic Thailee containing about 20 grams of heroin was recovered from right side pocket of his pant and Rs,40 from the front pocket of his shirt.
It is also mentioned in the F.I.R. That according to the police report accused sells heroin by wondering in the area. Accused was arrested, the recovered heroin powder was seized and sealed at the spot and then brought to the police station along with the accused and the case was registered against him, and thereafter challenged in the Court to face the trial."
3. After completion of investigation by complainant A.S.I. Muhammad Pervaiz, the appellant was sent up for trial. Charge under Articles 3 and 4 of the Prohibition Order, 1979 was framed on 12-2- 1995 by the trial Court to which the appellant pleaded not guilty and claimed trial. During the trial, only two witnesses were examined by the prosecution, namely, complainant/ Investigating Officer P.W.1 A.S.I. Muhammad Pervaz and Constable, Muhammad Shafiq, a member of the police party and recovery Mashir. Statement of the appellant was then recorded under section 342, Cr.P.C. And he produced 4 witnesses in defiance, namely, D.W.1, Amiruddin, D.W.2 Noor Muhammad, D.W.3 Muhammad Yameen and D.W.4 Muhammad Nisar Ahmad. All the 4 defiance witnesses deposed about the good character of the appellant having known him from childhood but none of them was an eyewitness. The appellant also gave statement under oath under section 340(2), Cr.P.C.
And was cross-examined on behalf of the prosecution. As observed, by the impugned judgment, believing the prosecution evidence tendered by the two police officials, the appellant was convicted and sentenced as noted.
4. In support of the present appeal, Mr. Abdul Majeed, learned counsel for the appellant, raised the following contentions:--
(a) There is violation of section 103, Cr.P.C.
(b) In this case the seizing Officer who was also the complainant became the Investigating Officer (A.S.I. Muhammad Pervaiz) and his evidence could not become the basis of conviction.
(c) There is a serious doubt as to whether the alleged recovery of heroin was sent to the Chemical Examiner and the report of the Chemical Examiner (Exh.7) is in fact the report regarding the recovery from the appellant.
5. On the other hand, Mr. Habib Ahmad, learned counsel for the State, submitted that there is an explanation on record given by both the police officials about not associating two independent witnesses in the recovery proceedings as required by section 103, Cr.P.C. As during the night at about 10 p.m. In winter (the incident being of 20-12-1994) no person from the public was present and the recovery was made on the spot having seen the appellant in suspicious circumstances and there was no earlier spy information and, therefore, no person from the public could be associated with the recovery. It was pointed out by learned counsel for the State that no enmity was shown between the two police officials and the accused and the evidence given by the police officials was clear, straightforward and without any contradictions and infirmities and, in the circumstances of the case, on the basis of such evidence the appellant was rightly convicted by the trial Court. As regards the defiance version and the evidence of the 4 defiance witnesses, it was pointed out by learned counsel for the State that all the defiance witnesses stated that they were not eye-witnesses and only deposed about the character of the appellant and as regards the plea of the appellant it was a simple denial. According to Mr. Habib Ahmad, the prosecution had discharged its burden of proving the case against the appellant beyond reasonable doubt and nothing had been made out for interference with the impugned judgment of conviction.
6. It has been noted that the incident took place at night at about 10 p.m. During the winter i,e, 20- 12-1994. It is not a case of spy information where the police knows that a search of narcotics is to take place and has time to associate two persons of the locality in the recovery proceedings. In this case, both the police officials have stated that they, were on routine patrolling of the area and having found the appellant in suspicious circumstances roaming about alone, he was searched on suspicion. Both the officials have stated in their evidence that no person from the public was present, and neither in the cross-examination nor in rebuttal evidence led by the defiance, anything was brought on record to controvert the evidence of the police witnesses that at the time in question no one from the public was present who could be joined in the recovery proceedings.
As an explanation has come on record which has gone uncontroverted, In my view, there is no violation of section 103, Cr.P.C. Reference in this context may be made to the decision of the Supreme Court in the case of Mirza Shah v. State 1992 SCM R 1475.
7. The other contention of learned counsel for the appellant was that in this case, the complainant and the Investigating Officer are the same, A.S.I. Muhammad Pervez, and for this reason the evidence of A.S.I. Muhammad Pervaiz should not be accepted. No doubt, the superior Courts in our country have deprecated the practice of complainant becoming the Investigating Officer but on this ground alone the evidence of such Investigating Officer cannot be rejected outright. After referring to reported judgments in a recent decision in the case of Bashir Ahmad v. State (Criminal Appeal No,21-K of 1995) I have held that though the evidence of a complainant police official who also becomes the Investigating Officer is admissible in evidence, yet for safe administration of justice, for sustaining the conviction of an accused such evidence should be corroborated by independent evidence. In this case, as observed, an explanation had been given by the two police officials that private witnesses were not available at the time of appellant was searched; the evidence of P.W.1 A.S.I. Muhammad Pervaiz is corroborated by P.W.2 Muhammad Shafiq.
8. However, I find force in the third contention advanced on behalf of the appellant regarding safe custody of the recovered powder and its dispatch to the Chemical Examiner. In this context, certain facts have been noted. The first point that has been noted is that the recovery was made on 20-12- 1994 whereas it is alleged to have been sent 8 days later on 28-12-1994 to the Chemical Laboratory, Karachi, through P.C. Rehan (not examined) but the date of receipt of the parcel is neither mentioned in evidence nor in the Chemical Examiner's report. It is then noted that the date of the report of the Chemical Examiner is 2-4-1995 i,e, after about four months. No evidence is available on record about the safe custody of the parcel containing the recovered powder. No evidence has been led to show that the said parcel was in whose custody. The official with whom the parcel remained in custody and the person who took the parcel to the Chemical Laboratory have not been examined. Though both the police witnesses have stated in their evidence that the recovered heroin was sealed on the spot, but in his cross-examination A.S.I. Muhammad Parvez contradicts himself and stated that at the time of sealing of the heroin powder by us it was closed with "Stapler". From the Chemical Examiner's report also it follows that the recovered contraband was not sealed, as the report states that the white plastic Thaili was found stapled. There is also discrepancy about the weight of heroin. According to the F.I.R. And the police witnesses 20 grams of heroin was recovered whereas according to the Chemical report the weight with plastic Thaili was 18.730 grams and net heroin powder was 16.230 grams.
9. In view of the aforesaid contradictions and infirmities in the prosecution case, a doubt is created as to whether the powder recovered from the accused was sent to the Chemical Laboratory for chemical analysis and that the Chemical Examiner's report relates to the powder recovered. The benefit of doubt is to be given to the accused.
10. As a result, Criminal Appeal No,50/K of 1995 is allowed and the appellant is acquitted of the charge. It is directed that the appellant be released forthwith if not required in any other case.