' This appeal was sent from jail by convict Muhammad Razzaq son of Allah Ditta. By judgment, dated 3-4-1995 passed by the Judicial Magistrate (Section 30, Cr.P.C.) Sialkot, the appellant was convicted under Article 4 of Prohibition Order, 1979 and sentenced to R.I. For 3 years and a fine of Rs.1,000 and in default to undergo further R.I. For six months and he was also awarded 10 stripes.
Syed Iftikhar Ali Jafri, Advocate had been nominated to represent the pauper appellant but he has not appeared and Mian Abdul Qayyum Anjum, Advocate, was nominated to represent the appellant. Mr. Muhammad Anwar Dhollan, Advocate has appeared for the State. I have heard the arguments of the two learned counsel and with their assistance, perused the record.
2. The incident in this case is of 19-4-1993. A.S.I. Ghulam Haider of Police Station Kotwali, District Sialkot, sent a Masala to the police station at 3-55 p.m. Stating that he along with Muhammad Akram, Muhammad Ilyas and Muhammad Shafique, Constables was on patrol duty for apprehending drug sellers and when he was at G.T.S. Bus Stop he received information from a Mukhber that accused was selling heroin on Paris Road near Mission Hospital. On such information, the complainant with the police party reached the spot and at the potation of the Mukhber apprehended the appellant and on his search 550 grams of heroin was received from a shopper bag in his hand and out of which 11 grams of heroin. Was separated as sample for chemical examination. The appellant was arrested and after investigation he was challenged. During the trial, the Investigating Officer who was also the head of the raiding party and the complainant did not appear to give evidence despite many opportunities given to the prosecution by the trial Court.
Four witnesses were examined by the prosecution in the case against the appellant, namely, P.W.1 Muhammad Ilyas (recovery witness); P.W.2 Head Constable Muhammad Asghar; P.W.3 Constable Liaqat Ali; and P.W.4, A.S.I. Shahid Mehmood. P.W.2 and P.W.3 and P.W.4 are formal witnesses and were not members of the raiding party. Out of the raiding party, only Muhammad Ilyas Constable was examined as P.W.1. As observed, the head of the raiding party and the complainant, namely, A.S.I. Ghulam Haider was not produced. No one else from the raiding party, who were present at the time of recovery, was produced as a prosecution witness.
3. In support of the present appeal, learned counsel for the appellant has argued that no witness from the public was associated in the recovery proceedings and the Investigating Officer and other recovery witnesses were also not produced. It was submitted that the entire case of the prosecution depended on the solitary statement of Constable Muhammad Ilyas on whose testimony the conviction could not be based.
4. The trial Court has adversely commented on the role of the prosecution in not producing the Investigating Officer and other recovery witnesses. On the record, there is no explanation or reason for non-examination of the Investigating Officer and other recovery witnesses. As noted, the entire case of A the prosecution depends on the solitary statement of Constable Muhammad Ilyas. No witness from the public was associated. Other recovery witnesses were not examined. The Investigating Officer was also not examined. It may be observed that the Investigating Officer is not a formal witness. He is an important witness and, through him, the defense is able to obtain information to test the veracity of the evidence given by the other prosecution witnesses. The Investigating Officer plays an important role in arriving at the truth during a criminal trial. From the cross-examination of Constable Muhammad Ilyas it follows that several answers given by him required corroboration. In the facts and circumstances of this case, it was unsafe to base the conviction of the appellant on the solitary C uncorroborated statement of Constable Muhammad Ilyas.
5. The next question which requires consideration is whether the case be remanded for retrial to enable the prosecution to examine the Investigating Officer and other recovery witnesses. In this case I am of the view that it would not meet the ends of justice if the appellant is required to undergo the rigors of a further trial. As noted, he was arrested on 19-4-1993 and since then he has remained in continuous custody. If the remissions to which he is entitled under the jail rules are 'taken into consideration, he will be completing 3 years of confinement in the near future. In my view, in the facts and circumstances of the case, the conviction and sentence of the appellant are liable to be set aside.
6. As a result, this appeal is allowed, the judgment dated 3-4-1995 of the trial Court is set aside and the appellant is acquitted of the charge. He be E released forthwith if not required in any other case.