1. ' FAIZ MUHAMAMD QURESHI, J.---Present appellant has called in question the judgment, dated 4-10- 2000 passed by the learned 1st. Additional Sessions Judge/Special Judge for Control of Narcotic Substances Court, Jacobabad in Case No,32 of 1999, whereby the appellant above named has been convicted and sentenced under section 9(b) of Control of Narcotic Substances Act, 1997 to suffer rigorous imprisonment for four years and to pay fine of Rs,10,000 and in case of default he shall further undergo simple imprisonment for six months. The appellant has also been accorded benefit of section 382-B, Cr.P.C. Hence this appeal.
2. ' Briefly stated the facts of the prosecution case are that on 20-10-1999 S.I.P. Haq Nawaz Awan was duty officer at Police Station A-Section Kandhkot. On that day he got spy information that accused Irshad Ahmed Malik was selling heroin in front of his house. He then informed this SDPO Kandhkot and under this command alongwith P.C. Manzoor Ahmed, PC Hakim Ali, SDPO Amjad Ali Shah and his gunmen Lutufullah, Mir Ahmed and driver P.C. Anwar Ali Channa left the Police Station vide Entry No,18 at 2-30 p.m. The police party then reached on the pointed place at 2-45 p.m and saw accused Irshad Ahmed Malik standing in the street in front of his house in Gulsher Mohalla Kandhkot and was holding a black plastic bag in his hand. Accused seeing police party tried to run away but was apprehended and the plastic bag was secured from his possession and on it's opening it contained lose heroin powder kept in small plastic bag and 15 Puries of heroin wrapped in a white paper. The police also secured Rs,600 lying in the said plastic Thelhi. The heroin powder secured from the possession of accused was weighed at the spot and loose heroin powder became 110 grams and the powder wrapped in white paper became 10 grams. In all 120 grams of heroin powder was secured. SIP then in presence of PC Manzoor Ahmed and PC Hakim Ali prepared such Mashirnama of arrest and recovery and then took the accused and property to Police Station A-Section Kandhkot where he lodged the report on behalf of the State at 3-45 p.m on 20-10-2000.
3. The heroin powder so recovered was sent to Chemical Examiner Rohri and on completion of investigation S.H.O. Police Station A-Section Kandhkot then challaned the accused/appellant in the Court of Session Judge/Special Judge, CNS Court Jacobabad from where the trial Court received the case by way of transfer on 19-1-2000.
4. ' Charge was framed against the appellant/accused vide Exh.2, to which he pleaded 'not guilty' and claimed his trial vide his plea Exh.3.
5. ' The prosecution in order to establish its case examined P.C. Manzoor Ahmed as Exh.6, who produced mashirnama of arrest and recovery as Exh.6-A; SIP Haq Nawaz Awan as Exh.9, who produced the F.I.R. As Exh.9-A, and Chemical Examiner's report as Exh.9-B. Thereafter the learned S.P.P. Closed the side of the prosecution vide statement Exh.10.
6. ' The appellant/accused in his statement under section 342, Cr.P:C. 'totally denied the case of the prosecution and claimed to be innocent. According to him, the heroin powder was secured from one Paryal Shah and said powder was planted by S.I.P. Haq Nawaz Awan against him as local police was celebrating 'Narcotic Weeks'.
7. ' The learned trial Court formulated the following points for determination:--- ' No, 1 . Whether the accused was found in possession of 120 grams of heroin powder which was secured from his possession on 20-10-1999 at 2-45 p.m by the police party of Police Station A- Section Kandhkot while the accused was standing in front of his house situated in Gulsher's Mohalla Kandhkot?
8. ' Whether the Narcotics recovered from the possession of accused was heroin of commercial grade?
9. ' What offence, if any, the accused had committed?
10. ' The learned trial Court, after having gone through the evidence adduced by the prosecution and other material available on record, passed the judgment in terms as stated above.
11. ' Learned counsel for the appellant Mr. Awan has submitted that there is inconsistency between the contents of F.I.R. And Chemical report with regard to the quantity of heroin recovered from the possession of the appellant. He has further contended that the mashirs are police men and no private mashirs have been associated on the factum of recovery and has further contended that the appellant is victim of enmity and prayed for his acquittal.
12. ' On the other hand, Mr. Altaf Hussain Surahio Advocate for the State has not supported the impugned judgment and has not controverted the contentions raised by the learned counsel for the appellant.
13. ' We have heard the learned counsel for the parties and with their assistance we have gone through the evidence adduced by the prosecution and other material available on record.
14. ' It is a claim of prosecution that S.I.P. Haq Nawaz Awan posted at Police Station A-Section Kandhkot received spy information that present appellant/accused is selling heroin in front of his house and thereafter he went alongwith P.C. Manzoor Ahmed, P.C. Hakim Ali, SDPO Amjad Ali Shah and his gunmen Lutufullah, Mir Muhammad and Driver PC Anwar Ali Channa vide Entry No,18 at 2-30 p.m at the pointed place and arrested the appellant and recovered 120. Grams of heroin powder from his possession in presence of P.C. Manzoor Ahmed and P.C. Hakim Ali. S.I.P. Haq Nawaz on spy information has not followed the procedure laid down by the superior Courts to pack up two independent mashirs on receiving such spy information before his departure for the pointed place and in the instant case no efforts have been made by S.I.P. Haq Nawaz to associate two independent mashirs when he came across the spy information with regard to the selling of heroin by appellant/accused in front of his house and has committed an illegality. In case of Muhammad Mansha v. The State reported in 1995 SCM R 1414 the Hon'ble Supreme Court has held that "despite the raid having been conducted consequent upon secret information police did not associate two respectable persons from the locality to witness the house search of accused--- Association of one public witness with the recovery proceedings was not sufficient to fulfill the mandatory requirements of section 103, Cr.P.C. And such legal infirmity per se could vitiate the search proceedings---and the accused has been entitled to the benefit of doubt and was acquitted in circumstances". In the instant case both the mashirs are police men and no efforts were made by police party to associate two respectable mashirs on receiving secret information.
15. ' Admittedly no fake customer has been sent to the pointed place where present appellant was found selling heroin in order to ascertain whether he was selling heroin or not and such suggestion has been given to S.I.P. Haq Nawaz, who has admitted in cross-examination as under:-- "It is correct to suggest that Gulsher Mohalla is a big mohalla where people of different tribes are residing. I had got the spy information on the day of arrest but I had not tried to send any fake purchaser. It is correct to suggest that I had not tried to associate any private person to act as mashir."
16. ' In view of such admission it is quite obvious that another illegality has been committed by the S.I.P.
17. By not sending the fake customer as under the law when one comes across the spy information that heroin is being sold by any person, it is the bounden duty of police to send firstly fake customer in order to ascertain that whether he is selling the heroin or not and in the instant case nothing has been done in this regard. In case of Javed Akhtar Alias Yaseen v. The State reported in 1990 PCr.LJ 445, a decision given by Hon'ble Federal Shariat Court, it was held that "the benefit of doubt is to be given to the accused in view of the fact that no fake customer was sent to purchase heroin from accused---No cash was recovered from accused being sale proceeds of heroin---No person from public was joined to witness the recovery of heroin from accused at the time of his personal search although such persons were admittedly present there---Prosecution evidence was furnished only by police personnel which was not only discrepant, but was recorded on solemn affirmation instead of oath and accused was acquitted in circumstances".
18. ' We have also observed with care another aspect of the case that it is a claim of the prosecution that police party left the Police Station by Entry No,18 at 2-30 p.m. And prosecution has miserably failed to get produced such Station Diary No,18 through S.I.P. Haq Nawaz and the entire case of the prosecution depends upon this Entry No,18 and on the basis of such Entry No,18 the prosecution may claim that police party left the Police Station to the pointed place and found the accused/appellant selling heroin and in the present case in absence of such entry No,18 the adverse inference can be drawn against the prosecution as the entry No,18 is a very important document and non-production of such document cuts the root of the prosecution's case and we are being fortified by two cases reported in 1997 M LD 1632 and 1998 PCr.LJ 1368 Of-late, the prosecution itself has riddled it's case with not only illegalities but also with material contradictions as there is a lot of difference between the contents of F.I.R. And the chemical report with regard to the quantity of heroin powder. It is a case of doubt and benefit of doubt goes to the accused as held in a case of Tariq Pervez v. The State reported in 1995 SCM R 1345 platinum (b), which is reproduced as under:-- "Article 4---Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused then he will be entitled to such benefit, not as a matter of grace and concession but as a matter of right."
19. In the instant case there are many circumstances creating doubts and in that event the benefit of doubt goes to the present appellant.
20. ' Upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and we give benefit of doubt to the appellant. Accordingly his conviction and sentence are set aside. In result, the appeal is allowed. Accused/appellant shall be released forthwith if not required in any other case.
21. ' Above are the reasons for our short order, dated 23-5-2001.