' The appellant was charged for having committed an offence punishable under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 vide F.I.R. No,212, dated 27-3-1996 lodged in Police Station Chura, District Mardan and after the completion of the usual police investigation he was put on trial. The Additional Sessions Judge-I (Syed Afsar Shah), at the conclusion of the trial, held the appellant guilty and convicted him. He was accordingly sentenced to undergo 2 years' rigorous imprisonment. The appellant was also sentenced to pay a fine of Rs,1,000 (Rs, one thousand) or in default thereof to undergo further one month rigorous imprisonment.
2. Aggrieved by the said judgment the appellant has challenged its legality/validity by filing this appeal.
3. Mr. Muhammad Themash Khan, Advocate learned counsel for the appellant and Khawaja Azhar Rashid learned Assistant Advocate-General for the State present and heard. Record of the case perused carefully.
4. The learned counsel for the appellant has, in the main, attacked the judgment on the following two grounds:-- ' Firstly that the provisions of section 103, Cr.P.C. Were not complied with and, therefore, the recovery of the narcotics from the possession of the appellant had become doubtful. Resultantly he could not be convicted; secondly that 13 "Puris" (weighing 13 grams) were allegedly recovered from the possession of the appellant and as such the prosecution was bound to send samples from all the 13 "Puris" for chemical analysis, that the same was however, not done inadvertently or otherwise.
Only one sample was taken from one of the 13 "Puris", therefore, there was no evidence to show that except for one "Puri" the rest of the 12 "Puris" also contained heroin powder, that on this score too, the appellant was entitled to be acquitted.
5. The contention of the learned counsel for the appellant that the provisions of section 103, Cr.P.C.
Were not complied with seems to be correct. The prosecution has failed to associate two independent witnesses from the locality to witness the recovery. No effort, whatsoever, was even made to procure the attendance of two Mashirs from the locality. The police party clearly violated the mandatory provisions of section 103, Cr.P.C. And, therefore, the alleged recovery of contraband narcotics had become illegal and could not be made the basis of a conviction. The appellant was accordingly entitled to be acquitted not as a matter of grace but as a matter of right in view of the decision of the Full Bench of the Honourable Supreme Court of Pakistan, comprising of their Lordships, Mr. Justice Ajmal Mian, Mr. Justice Saleem Akhtar, Mr. Justice Saiduzzaman Siddiqui and Mr. Justice Nasir Aslam Zahid, determined in case titled State v. Bashir and others reported as PLD 1997 SC 408. It was held:-- "(iii) Criminal Procedure Code (V of 1898)--- ----S. 103---Non-compliance of---Effect---It has been repeatedly held that the requirement of S.103, Cr.P.C. Namely, that two members of public of locality should be Mashirs to recovery, is mandatory unless it is shown by prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public---Where no efforts made to secure two Mashirs recoveries may be considered as doubtful.
(v) Arms Ordinance, 1965 (West Pakistan Ordinance XX of 1965)--- ----S. 13---Recovery of weapons---Whereas police personnel---Status--- ' In a case whereby witnesses of recovery were police personnel though it was possible to have two Mashirs from locality where recovery was made their testimony in the absence of other reliable pieces of evidence would not warrant conviction.
' But where in a case other pieces of evidence on record are free from doubt, testimony of police personnel if free from any legal infirmity may be accepted."
6. Khawaja Azhar Rashid, learned Assistant Advocate-General, when confronted with this situation, admitted that in the circumstances he was not in a position to defend the impugned judgment. He conceded, and rightly so, that the conviction/sentence recorded by the Additional Sessions Judge- I was not legal/in accordance with law.
7. In view of what has been stated above I am of the view that the prosecution was bound to associate two members from the locality to witness the recovery. The prosecution had patently failed to do so. Besides, no effort was made to show that it was not possible to associate two Mashirs, with the recovery process, in the circumstances. Accordingly, it can be safely concluded that the entire process of recovery of narcotics from the possession of the appellant had become highly doubtful.
8. Additionally, the record would reveal that 13 "Pulls" weighing 13 grams) were allegedly recovered from the possession of the appellant. The prosecution was, therefore, bound to send 13 samples (one each from each Puri) for chemical analysis. Instead of sending 13 samples the prosecution had sent only one sample from one "Puri". In the circumstances, it could not be concluded that all the 13 Purls contained heroin powder.
9. Resultantly, this appeal is accepted, the conviction/sentence recorded by the Additional Sessions Judge-I, Mardan is set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case.