S. A. RABBANI, J.---On the charge of possession of one kg opium, the appellant was convicted on 18-11-2000, by the Special Judge for Control of Narcotic Substances, Larkana, under section 9(b), Control of Narcotic Substances Act, 1997. He was accordingly sentenced to suffer R.I. For seven years and to pay a fine of Rs,20,000. This conviction and sentence has been called in question by way of present appeal.
2. The case of the prosecution was that Qurban Ali, Excise Inspector, D.I.O. Larkana arrested the appellant, on 11-7-1997 at 9-30 a.m. From Wagon Road near Marvi Rice Mill and secured from his possession one kg. Opium. On that occasion, the Inspector was on patrol in company of eight other Excise Officials. In the charge-sheet submitted before the trial Court, the Investigating Officer mentioned only two witnesses in addition to himself. The District Attorney conducting the prosecution case, however, deemed it sufficient to examine only one witness in addition to the complainant/I.O. And closed prosecution side after examination of these two witnesses.
3. The impugned judgment mentions what Mr. Asif Ali Soomro, learned counsel for the appellant argued before the trial Court. He has tried the same arguments before us. His contention was that so many witnesses were mentioned in the F.I.R. And memo. Of arrest and recovery, but only two witnesses were examined by the prosecution and both of them are employees of Excise Department. The contention did not succeed in impressing the trial Court, whose opinion was that official witnesses are as good witnesses as any other citizen, until and unless a mala fide or ulterior motive is established against them to implicate the accused in false case. The trial Court found that no ulterior motive or mala fide was alleged or proved against the prosecution witnesses in this case. It was observed that, had there been an ulterior motive, the complainant would have easily foisted the other two kg. Opium upon the accused/present appellant, which was thrown away by one Irshad Khan, who escaped.
4. The trial Court has further referred to the provisions of section 25 of the Control of Narcotic Substances Act, 1997, whereby applicability of section 103, Cr.P.C. In the cases under this Act has been excepted. This exemption may give a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable. Man cannot be .Made moral through legislation. Evidence of such official witnesses should always be examined with a view of the facts that in a society with the level of moral values that we unfortunately have, a subordinate official is seldom excepted to tell the truth in deviation of the express or implied instructions of his superior. As far the ulterior motive, these officials are always interested to show their efficiency by registering more cases and the reason for not foisting the other opium, allegedly thrown away by one Irshad Khan who escaped, upon the present appellant may be to make more number of cases by that quantity.
5. The learned Judge in the trial Court has ignored non-examination of other witnesses by the prosecution except the two officials, but he took a similar omission by the defence as a factor adversely affecting the defence case. He observed "although accused has taken the defence plea that he was arrested from bus but not a single passenger from the bus cleaner or driver of the bus, has been examined by him in order to prove that actually on the date of incident he was travelling in the bus from Sehwan Sharif and was apprehended by the complainant at the place of recovery".
In any case, it was for the prosecution to prove their case. Technically, there is a room for presumption that the prosecution witnesses not examined would not have supported the prosecution case.
6. In the evidence of the prosecution witnesses examined, Mr. Soomro has pointed out some contradictions. Some of them are, of course, material. The complainant/I.O. Qurban Ali said that under his dictation Mashirnama was prepared by Inspector Razi Khan. Mashir Muhammad Ibrahim, the only other witness, stated that Mashirnama was prepared by the complainant in his own handwriting. One of the two prosecution witnesses is definitely telling lie and Inspector Razi Khan has not been examined. One of the two prosecution witnesses is, thus, unreliable but he may be either of the two. This renders the whole prosecution case doubtful. The accused/appellant cannot be deprived of the benefit of this doubt. The counsel for the State,' also, does not support the conviction.
7. In view of preceding findings and observations, the appeal is allowed and the conviction and sentence are set aside. Appellant is acquitted. The appellant/convict be released forthwith.