1. ' FAIZ MUHAMMAD QURESHI, J.---The appellant has challenged the judgment, dated 1-2-2000 passed by the learned Special Judge, Control of Narcotic Substances, Dadu in S.C. No,329 of 1998 under section 9 of the Control of Narcotic Substances Act, 1997 bearing Crime No,64 of 1998 registered with Police Station Sehwan whereby the appellant has been found guilty for the charge of an offence punishable under section 9(b) of Control of Narcotic Substances Act, 1997 and has been convicted and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs,2000. In case of default accused to suffer rigorous imprisonment for two months more, hence this appeal.
2. ' The brief facts of the case are that on 19-11-1998 at 3-50 p.m. SIP Muhammad Nawaz lodged F.I.R.
3. At Police Station Sehwan stating therein that on the aforementioned date he received a message from Senior Superintendent of Police, Dadu that some persons are selling opium in Bubak Town and on receiving such information complainant A.S.-I. Mir Muhammad Khoso and Allah Bachayo and other staff vide Entry No,20 at about 1-40 p.m. Left the Police Station Bhan, Saeedabad towards Bubak Town. At about 2-30 p.m. When the complainant and P.Ws. Reached outside the house of accused Uris Khoso, they saw two persons standing their, after seeing them they tried to slip away but they were apprehended on the spot. On enquiry, the apprehended accused disclosed their names as Uris and Kauro both by Caste Khosas. On personal search of accused Uris 120 gramp opium, 180 grams Charas were secured from his possession, Police also recovered cash of Rs,160 from his possession. Police also recovered 181 grams "Bhung" and cash of Rs,130 from the possession of accused Kauro. S.H.O. Thereafter prepared such Mashirnama in presence of A.S.-I. Mir Muhammad and A.S.-I. Allah Bachayo and obtained their signatures and thereafter brought the accused and property at Police Station and lodged the F.I.R. In the daily. Diary and thereafter he sent - the same to S.H.O. Police Station Sehwan which was incorporated in a book under section 154, Cr.P.C. As the alleged offence was committed within the jurisdiction of Sehwan. Above F.I.Rs, were lodged against both the accused.
4. ' After usual investigation appellant Uris was challaned before the Court of Special Judge, Control of Narcotic Substances, Dadu.
5. ' Charge was framed against the accused as Exh.2 and plea recorded as Exh.3 in which accused pleaded not guilty and claimed to be tried.
6. ' During the trial prosecution has examined complainant S.I.P. Muhammad Nawaz as Exh.5 and there recovery Mashir A.S.-I. Mir Muhammad Khoso Exh.62. During the evidence complainant has produced the Mashirnama of arrest of accused and recovery of property as Exh.5-A, F.I.R. As Exh.5- B and the report of Chemical Examiner as Exh.5-C. Thereafter the side of the prosecution was closed vide Exh.7.
7. ' Statement of accused was recorded under section 342, Cr.P.C. As Exh.8 in which he has denied the allegations levelled against him by the prosecution.
8. ' The learned trial Court formulated the point for determination as under:--- ' Whether on 19-11-1998 at 2-30 p.m. Near his house situated in Deh Bubak accused Uris was found in possession of 180 grams Charas and 120 grams opium, as alleged by the prosecution?
9. ' The learned trial Court after having gone through the evidence adduced by the prosecution and material available on record passed the impugned judgment in terms sated above.
10. ' We have heard the learned counsel for the appellant Mr. Manzoor Ahmed Z. Siddiqui and Mr. Muhammad Azim Panwhar, Advocate for the A.A.-G. For the State at length and with their assistance we have also gone through the evidence adduced by the prosecution.
11. ' Learned counsel for the appellant has argued that there is a delay of about four months in sending the Charas and opium to the Expert and according to him in all fairness there is six months' delay in receiving the case property by the Expert which goes unexplained by the prosecution. He has further drawn our attention on the Chemical Report and contended that for two months the case property has been retained by A.S.-I. Although the offence is said to have taken place on 19-11-1998 and the Expert has received the case property on 21-4-1999. In support of his contention he has placed reliance on a case Muhammad Arif v. The State reported in 1993 PCr.LJ 1953, Nazir Ahmad v. The State reported in 1993 PCr.LJ 217; 1997 FSC SD 356. Mr. Manzoor Ahmad Z. Siddiqui has further argued that there are material contradictions between the evidence of the complainant and one of the Mashirs and according to him the case is doubtful and the present appellant has been implicated on account of enmity with one of the Mashirs namely Mir Muhammad Khoso who is A.S.-I.
12. ' On the other hand Mr. Muhammad Azim Panwhar, Advocate for the A.A.-G. For the State has supported the impugned judgment and argued that there is sufficient evidence against the present appellant although there is delay ,in sending case property to the Expert but the same has not been shaken by the defence during the cross-examination of the witnesses.
13. ' We have given out anxious thoughts to the submissions rendered by the learned counsel for the parties at the bar we haye also gone through very carefully the material available on record and the evidence adduced by the prosecution. It is the case of the prosecution that on 19-11-1998 at 3- 30 p.m. The present appellant alongwith co-accused Kauro was apprehended from Bubak Town in presence of Mashirs A.S.-I. Mir Muhammad Khoso and A.S.-I. Allah Bachayo and Police recovered 180 grams Charas, 120 grams opium and 120 grams Bhung from him. We have also examined very carefully the Chemical report and the case property viz. Charas and opium has been received by the Chemical Expert on 21-4-1999 and such inordinate delay goes unexplained by the prosecution.
14. Thus the dent has been caused in the version of the prosecution with regard to the recovery of Charas and opium from the possession of the aforenamed appellant. It goes further unexplained by the prosecution as to why the case property was retained by A.S.-I. For two months and why the said property has been sent after a delay of six months thus there are chances of manipulation, arrangement of the Charas and opium on the part of Police so also fabrication of false case against the appellant in view of the .Enmity suggested by the appellant with A.S.-I. Mir Muhammad Khoso. This plea has been taken by the appellant in his statement under section 342, Cr.P.C. And so also such suggestion has been given by the defence to the prosecution. We have also observed with surprise that the prosecution is totally gagged on the part of inordinate delay in sending the case property to the Expert and it has boggled our mind as to why the case property was retained by the A.S.-I. Which is evident from the Chemical report and the entire case has been shattered by the Police by retaining the case property for indefinite period, such conduct on the part of Police officers is deplorable and on account of their such silly conduct the accused derived benefit and in'the instant ease we feel that the entire case has been spoiled by the Police officers by retaining the case property at Police Station as the same has been sent after an inordinate delay of six months which goes unexplained by the prosecution. This fact has not been controverted by Mr. Muhammad Azim Panwhar Advocate for the A.A.-G. For the State. We have also found from the record that it is a case of prosecution that the police party received a message from Senior Superintendent of Police, Dadu that some persons are selling opium and Charas in Bubak Town and yet no independent Mashirs were picked up by them from the place where they received such message and non-joining of independent Mashirs from the place where they received information cuts the root of the prosecution case. We are being fortified by the case reported in 1995 SCM R 1414. This is a claim of the prosecution that the Police party went to the place and found persons selling Charas and opium, yet no fake customer was sent to the pointed place in order to ascertain the truth after receiving such information as no such efforts have been made by the Police party.
15. This has also caused dent in the version of the prosecution. Now it is quite obvious that name of the property is not mentioned. Neither the property has been exhibited nor marked and it is not appealable to the prudent mind that the property was shown to the witnesses. There are kinds of properties and it is not clear from the examination-in-chief of the complainant that what property was shown to him. The inference can be drawn against the prosecution and it can be said easily that the property was not produced in the Court. Even the property produced in Court has not been shown to the accused at the time of his statement under section 342, Cr.P.C. By questioning him that it is the same property which has been recovered from his possession and no such question has been put to the accused, in that event benefit of doubt goes to the accused. The prosecution is also banking on Entry No,20 of 1998, yet the prosecution failed to get it produced through the complainant during the trial, which is a genuine document and non-production of such document has, cut the root of the prosecution's case and the benefit of doubt goes to the accused. Reliance can be placed on cases Qalandro alias Nazro v. The State reported in (1997 M LD 1632) and Farid Ahmed Langhra v. The State reported in (1998 PCr.LJ 1368).
16. ' Before parting with the judgment we have seen with deep concern the conduct of the Police Officers who have spoiled the whole case. They have not taken efforts to collect the pieces of evidence against the accused to prove his guilt. On the contrary the Police Officers have retained the case property recovered from the accused for six months and thereafter the same has been received by the Expert and it goes unexplained by the prosecution and by this conduct the prosecution has not been able to prove its case beyond reasonable doubt against the appellant.
17. Since the Police Officers who were incharge of investigation and who did not conduct investigation honestly, with diligence, definitely the benefit is derived by the accused and the whole case is spoiled by such Police Officers. In the present case the Police Officers have been found delinquent officers and their conduct during the investigation is deplorable and the copy of the judgment be sent to the Inspector-General, Sindh Police, Karachi.
18. The upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. Accordingly we give him benefit of doubt. His conviction and sentence are set aside. In result the appeal is allowed. The appellant shall be released forthwith if not required in any other crime.
19. ' Above are the reasons for our short order, dated 3-7-2001.