FAZAL ILAHI KHAN, J.---This appeal through leave of the Court is directed against the judgment of learned Federal Shariat Court dated 6-11-1994 passed in Criminal Appeal No.46-P of 1994.
2. The prosecution case set up in F.I.R. No.464 dated 20-9-1992 (Exh.P.W.2/2) incorporating Murasla Exh.P.W.2/1 is that Sabir Hussain I.H.C., P.S. Nowshera Kalan on receiving information that appellant was indulging in selling heroin powder while laying ' Nakabandi' saw the accused/appellant and apprehended him. He was armed with a rifle and bandolier. On his search the rifle, bandolier and a sum of Rs.1,100 in cash was taken into possession. When the bandolier was opened it had in its pockets 20 packets of heroin powder. The substance was, therefore, taken into possession vide recovery memo. Exh.PW-1/1. On weighing it was 20 grams in all. One gram was sealed into a separate parcel which was later on sent to the Chemical Examiner for analysis while the remaining was sealed into another parcel. The accused was arrested, Murasala was drafted which was sent to police station for registration of the case. The rifle, bandolier and Rs.1,100 were also taken into possession in presence of the marginal witnesses vide recovery memo Exh. PW-1/2. After completion of the investigation the accused was put on trial in the Court of Additional Sessions Judge, Nowshera.
3. At the trial prosecution relied on the statement of Said Rehman HC (P.W.1) and Sabir Hussain complainant (P.W.2). The result of Chemical Examination was in the positive. The appellant was examined under section 342, Cr.P.C. Who denied the recovery of heroin powder from his possession but owned the recovery of rifle, bandolier, a licence copy and the sum of Rs.1,100 during his search.
He also made his statement under section 340(2), Cr.P.C wherein he stated that at the the of occurrence he was present outside his quarter in Grid Station WAPDA Aman Garh and was busy in gardening and cultivation of vegetable when the police party arrived at the Grid Station and asked him to hand over his rifle. His reply that his rifle was licensed one and it could not be handed over because he has serious enmity. Its licence was shown to the police. However, the Investigating Officer grappled with him and snatched the rifle and forcibly took him to police station. The learned trial Judge relying on the statements of the aforementioned to P.Ws. And report of the Chemical Examiner, while rejecting the defence plea and statement of the accused/appellant, found him guilty, convicted him under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to 3 years' R.I. And fine of Rs.3,000 and 3 stripes. In default to pay the fine he was ordered to suffer R.I. For 6 months. Appellant's appeal was dismissed by the learned Federal Shariat Court. Leave was granted by this Court to consider the contentions that though the heroin powder was recovered from the appellant on 20-9-1992 but it was sent to the laboratory on 11-10-1992 without any explanation for inordinate delay. That there was material contradiction in the prosecution evidence which falsify the case of the prosecution but it was ignored by the Courts on the ground that such contradiction appears to be gratuitous admission on the part of the witnesses.
4. Learned counsel for the appellant reiterated the contentions on which leave was granted by this Court. In order to point out the material contradiction the learned counsel for the appellant led us through the evidence of 2 prosecution witnesses of the police. The Investigating Officer while supporting the facts given in the ' Murasila' stated that from the pockets of the bandolier 20 packets of heroin powder was recovered and those were weighed at the spot. One ' puri'was sealed into a separate parcel for Chemical Examiner Examination while the remaining 19 packets were separately sealed. He further stated that appellant was apprehended in a Khawar near the Grid Station. This Khawar is near the side wall of the Grid Station. On the other hand said Rehman, Head Constable (P.W.1) has clearly stated that the appellant was busy in gardening with a pick when Sabir Hussain, I.H.C, (P.W.2) called him and asked him to hand over the rifle to him. He also deposed that another person was also present with the accused at the relevant the. This witness, contradicting P.W.2, stated that after his arrest the accused/appellant was brought to the police station and it was at the police station that the heroin powder was weighed. After the weighment one ' Puri' was separated without any weight as it was presumed that it was one gram as there 20 '
Purls' in all. That 19 ' Purls' in original shape were sealed into a parcel in his presence. That the ' Purls' were kept in an empty cigarettes box. It was pointed out by the learned counsel that at the request of the defence counsel the parcel was opened in Court which contained 10 ' Puris' only and so was the entries on the cover of the parcel. These contradictions in the statements of the to police officials have wrongly been ignored.
5. Mr. Khalid Khan, learned counsel appearing on behalf of the Advocate---General supporting the judgments of the Courts below argued that as far as recovery of rifle, the licence copy and the sum of Rs.1,100 is concerned it has been accepted by the appellant, therefore, there is nothing to doubt the recovery of heroin powder in the sequence of the occurrence. He further supported the observations of the Courts below that the contradictions pointed out by the learned counsel for the appellant appears to be gratuitous in order to help the accused in his defence.
6. After hearing the learned counsel for both the parties and perusal of record it may be pointed out that in the instant case the Investigating Officer having prior information ought to have associated disinterested person while laying the picket ' Nakabandi' and then at the the of personal search of the appellant. No doubt in absence of any mala fide or motive for false charge reliance can be placed on the statements of the official witnesses but when recovery of the substance by itself is the main offence the statement of such 8 officials (police witnesses) need to be properly appraised and minutely scrutinised and the benefit of doubt, if any, arising from the reading of their statements shall be extended to the accused.
7. The observation of the Courts below that the contradiction pointed out in the statements of the to official police witnesses is gratuitous in order to help the appellant is all the more damaging for the prosecution case. It not only adversely reflects on their credibility but creates doubt in the prosecution version of the occurrence and it would be unsafe to base reliance on such statements in the absence of any other independent corroborative evidence. The contradiction in the statements of the 2 witnesses with regard to the place wherefrom the accused/appellant was apprehended is very material. Said Rehman (P.W.1) has stated that the appellant was busy in gardening when he was called and taken to the police station is in line with the statement of the accused. On the contrary P.W.2, as already pointed out, has stated that the appellant was arrested from a Khawar' and was searched there and then and the recovery effected from him. Similarly there is contradiction in the statements of the 2 witnesses with regard to the weighment and preparation of the parcels of the recovered substance; one with regard to sample for the Chemical Examiner and the other for safe custody in Malkhana. The considerable delay in sending the sample has also not been explained in evidence.
For all these reasons we are constrained to agree with the learned counsel for the appellant that the prosecution was not successful in proving its case against the appellant/accused beyond any reasonable doubt. We, therefore, while accepting this appeal set aside the judgment of the learned Federal Shariat Court and acquit the appellant by extending benefit of doubt. He is on bail. His bail bond is discharged.