1. ' FAIZ MUHAMMAD QURESHI, J.---The present appellants have called in question the impugned judgment, dated 3-7-1999 passed by learned Special Judge, Control of Narcotic Substances, Hyderabad. In Case No,34 of 1998, whereby the aforenamed appellants have been found guilty for an offence punishable under section 9(c) of the Control of Narcotic Substances Ordinance, 1995, having been found in possession of huge quantity of narcotics to life imprisonment and to pay fine of Rupees One Million each, in default of payment of fine both accused shall suffer R.I. For 5 years more. Benefit of section 382-s, Cr.P.C. Of their detention period in custody be deducted from the conviction, awarded. Hence this appeal.
2. ' Brief facts of the case are that complainant S.-I. Ghulam Abbas of ANF Hyderabad on 20-5-1996 at 12-00 noon time alongwith his subordinate staff, in Government vehicle, vide Entry No,2 at 8-00 a.m.
3. Set out from Police Station for patrolling. When they reached near Railway Station, Jasmshoro, they received spy information that at Katchi Abadi, Jamshoro Colony, narcotic was being sold publicly.
4. On receiving MU spy information, the above Task Force proceeded towards that direction and asked private persons, who were passing nearby to act as Mashir. Out of those private persons, one Yasin Sultan resident of Katchi Abadi, Jamshoro, voluntarily prepared to act as Mashir, others refused due to fear. The ANF Task Force and commandoes proceeded towards the place of information and raided the narcotic den. They found one person, who while seeing the Task Force by throwing plastic bag scaled over the wall and escaped from the place of Wardat; while taking benefit of narrow streets. The Task Force entered the den and apprehended two persons who were trying to escape. On inquiry about their names, one of the persons disclosed his name as Gul Dost Khan alias Haji, while another disclosed the name as Noor Mohammad. The complainant also inquired from accused persons about the name of culprit, who escaped and it was disclosed by them as Jehanzeb; on search it was found shopping bag lying in his right hand which was opened and found opium lying in it. The complainant made search of accused Noor Mohammad and found two slabs of Charas lying in his hand. At personal search of accused Gul Dost, complainant secured cash of Rs,150 lying in the right-side pocket of his shirt while cash of Rs,200 were secured from the possession of accused Noor Mohammad which were lying in the left front bag of his shirt.
5. Plastic bag thrown by Jehanzeb was opened and it was found that Charas lying in it which was weighed and found 6 kilograms in weight. The opium secured from the possession of accused Gul Dost was weighed and found 2 kilograms in weight and the Charas recovered from the possession of accused Noor Muhammad was also weighed and found 2 kilograms in weight. The complainant made search of den and found four plastic bags lying in varanda which were opened and found Charas in 3 bags while opium was lying on one bag. The Charas taken out from three bags was weighed and found 31 kilograms in each bag while opium recovered from 4 bags was weighed and found 8 kilograms in weight. The complainant separated 50 grams as sample from Charas thrown by Jehanzeb while sample of 50 grams was also separated from opium recovered from the possession of Gul Dost. Complainant also separated I kilogram of Charas as sample from 3 bags lying in varanda, the complainant also separated 50 grams of opium as sample from the bag lying in varanda. All the samples were sealed at the spot in presence of Mashirs FIO Incharge Khaliduddin and Yasin Sultan; such Mashirnama was prepared in presence of both Mashirs and both accused and property were brought at ANF Police Station where complainant lodged F.I.R.
6. ' Accused Jehanzeb was absconded from the place of Wardat and was arrested on 22-5-1996 in presence of Mashirs A.S.-I. Amiad Ali and F 10 Incharge Khaliduddin and thereafter the samples were dispatched to Chemical Examiner for examination and report. After completion of the investigation of the case, the Challan was submitted against the accused persons. Before framing of charge, accused Jehanzeb, who was arrested absconded was declared as proclaimed offender, while charge against abovenamed pell appellants was framed, to which they pleaded not guilty and claimed to be tried.
7. ' Prosecution in support of its case examined complainant S.-I. Ghulam Abbas at Exh.8 P.W.
8. Khaliduddin at Exh.9 and thereafter the side of the prosecution was closed vide Exh.
10. The appellants in their statements recorded under section 342, Cr.P.C. At Exhs.11 and 12 denied the allegations of the prosecution. The learned trial Court formulated the following points for determination:
(1) Whether on 20th May, 1996, at 9-00 a.m. At narcotic den situated at Katchi Abadi, Jamshoro Colony. S.-I. Ghulam Abbas of ANF Narcotic Task Force, Hyderabad secured 101 kilograms of Charas and 10 kilo-rams of opium from the possession of accused. In presence of Mashirs?
(2) Whether any of the accused is guilty of the offence, to which they are charged?
9. ' Having gone through the evidence adduced by the prosecution and other material available on record, the trial Court passed the judgment in terms as stated above.
10. ' We have heard Mr. Shaukat H. Zubedi, learned counsel for the appellants, Mr. Muhammad Iqbal Kalhoro Special Prosecutor for ANF. Mr. Hakim Ali Siddiqui, Standing Counsel for D.A.-G., who adopted the argument advanced by Mr. Muhammad Iqbal Kalhoro. Special Prosecutor for ANF.
11. ' The contentions of Mr. Shaukat H. Zubedi learned counsel for the appellants is that admittedly, the offence has been committed on 20-5-1996 at 9-00 a.m. And according to the charge at Exh.7 page 40 of paper book the Special Judge has framed under section 9 of Control of Narcotic Substances Ordinance, 1995 which was no more in existence; in the year 1996 the alleged offence is said to have taken place; according to Mr. Shaukat H. Zubedi learned counsel for the appellants.
12. Ordinance, 1995 was lapsed. Thus, the charge is defective. He has further contended that from the charge it is quite evident that 101 kilograms of Charas and 10 kilogram of opium was secured by S.I.P. Ghulam Abbas of Police Station ANF, Hyderabad, when this is not the case of the prosecution.
13. According to him, even in judgment passed by the learned trial Judge at page 74 of paper book the learned Judge has observed that the accused are found guilty for the offence punishable under section 9 (c) of Control of Narcotic Substances Ordinance, 1995. The main object of the learned counsel is that learned trial Judge has not applied his judicial mind on the very important aspect of the case and thus the trial stands vitiated.
14. ' He has further elaborated the contention by inviting our attention of Chemical Report available at page 54 of paper book that only 50 grams of substance was sent to Chemical analyser for opinion and what happened to the rest of the quantity, is not clear with the prosecution, whether the rest of the quantity was another substance like Katha or any other substance and such explanation is not being furnished by the prosecution and such a serious offence has been claimed by the prosecution. According to learned counsel for the appellants the entire quantity had to be sent to the expert for examination. 50 grams quantity has been sent to the expert at the most the offence would fall under section 9(b) of the Control of Narcotic Substances Act but would not fall under section 9(c) of the said Act.
15. ' Learned counsel for the appellant has further drawn our attention on the Mashirnama of recovery that after signatures of two Mashirs again there has been addition of words by the complainant party which has caused dent in the case of the prosecution. Mr. Shaukat H. Zubedi, learned counsel for the appellant has further submitted that there are two Mashirs, one is Incharge ANF and the another is private Mashir, namely Yasin Sultan, who has been given up by the Special Prosecutor ANF, Hyderabad on the ground that Mashir Yasin Sultan is not supporting the case of the prosecution. The inference can be drawn, had he been examined by the prosecution, he would have not supported the case of the prosecution.
16. ' Mr. Shaukat H. Zubedi, learned counsel for the appellant has further submitted that who is the owner of den from-where the huge quantity of narcotic is said to have been recovered by ANF is not clear from the record available and no efforts have been made by ANF and other forces to lay their hands on the owner of the den. He has further argued that cross-examination of both witnesses examined by the prosecution has not been considered by the trial Court while delivering the judgment and there is mandatory violation of the provision of section 367, Cr.P.C. Mr. Shaukat Zubedi, learned counsel for the appellant has also drawn our attention on the position of Ghulam Abbas being P.W.1 who has admitted that he recorded the statement of P.W. Under section 161, Cr.P.C. At the spot and brought the accused and property at his office where he lodged the F.I.R.
17. Whereas the S.-I. ANF II, Karachi, namely, Khaliduddin has admitted in his cross-examination that he permitted complainant Ghulam Abbas for investigation of the case after lodging F.I.R. According to Mr. Shaukat H. Zubedi learned counsel for the appellant this is the improvement in wake of the evidence of P. W.1 Ghulam Abbas, who has categorically stated before the trial Court that he recorded the statement of P.Ws. At the spot and thereafter he lodged the F.I.R. Which shows that first investigation has taken place and thereafter F.I.R. Has been lodged which is the illegality committed by the Investigating Officer.
18. ' He has also invited our attention to the statement of the accused wherein it has been asked from accused as Question No,1 that they were found to be in possession of 101 kilograms Charas and 10 Kilograms of opium. Which is in conflict of the case of the prosecution and thereafter in Question No,3 it has been asked from the accused that out of the said Charas and opium recovered from their possession 50 grams Charas and 50 grams of opium were sent to chemical examiner. He has also dealt with at length with the material contradictions in the evidence of the prosecution witnesses.
19. ' On the other hand, Mr. Iqbal Kalhoro, Special Prosecutor for ANF submitted that huge quantity has been recovered from the possession of the accused and he also read section 78 of Control of Narcotic and also referred Article 264 of the Constitution of Islamic Republic of Pakistan. However, he conceded that 50 grams of opium and 50 grams of Charas were sent to chemical examiner for opinion and it is not necessary to send the entire quantity to the expert. He further argued that judgment is based on sound reasons, the charge is not defective. However, he could not reply properly over the question as to why private Mashir was given up and what reasons were drawn by the Special Public Prosecutor in giving him up. He was not able to argue on the point why effort was not made to know the name of owner of the den. He has further argued that no error has been committed by the learned trial Judge and has supported the impugned judgment. He has also placed reliance on unreported case of the Hon'ble Supreme Court and the facts of unreported case are distinguishable from the facts of the present case.
20. ' Mr. Hakim Ali Siddiqui, learned Standing Counsel for D.A.-G. Adopted the arguments advanced by Mr. Muhammad Iqbal Kalhoro, Special Prosecutor for ANF.
21. ' We have heard the learned counsel for the parties at length and have examined all the material available on record and with their assistance we have gone through the entire evidence.
22. It is a case of prosecution that 2 kilograms of opium is said to have been recovered from the possession of Gul Dost and 2 kilograms of Charas from Noor Muhammad Khan and yet in charge it has been mentioned possession of substance of 101 kilograms of Charas and 10 kilograms of opium and this we find glaring inconsistency between the claim of the prosecution and the charge with regard to the recovery of Charas and opium. Even no such question has been put to the accused under section 342, Cr.P.C. By the prosecution and whole case of the prosecution appears to be shattered on this point. It means that the prosecution has not put forward its case with clean hands and proper judicial mind has not been applied even by the learned trial Judge, while delivering the judgment. Admittedly, alleged offence is said to have been taken place on 20-5-1996 at 9-00 a.m.
23. Yet the charge has been framed under section 9 of the Control of Narcotic Substances Ordinance, 1995 when such Ordinance 1995 was not in existence and so also in judgment at page 74 of the paper book the learned Judge has observed that the accused are found guilty for the offence punishable under section 9(c) of CNS Ordinance, 1995, which is error committed by the learned trial Judge. Admittedly, 50 grams' of substance from Charas and opium is said to have been sent by complainant party to the expert and there is no evidence with the prosecution as to what happened to the rest of quantity of substance and we find the prosecution gagged on this very important aspect of the case and the benefit of doubt goes to the accused in that event we have also examined carefully chemical report available at page 54 of paper book. No efforts have been made to lay hands on the owner of den, the another important aspect of the case is that private Mashir Yasin Sultan has been given-up by the Special Public Prosecutor, Hyderabad on the basis of information of Investigating Officer which is another error. No reasons have been assigned by the Special Public Prosecutor ANF, Hyderabad as to when and where the aforenamed private Mashir Yasin Sultan has been won over by the prosecution and what were the circumstances that compelled Special Public Prosecutor ANF, Hyderabad to give up such important and material witness and such explanation is not being furnished by the prosecution at all. The infeience can be drawn in this circumstance that had he been examined by the prosecution he would have not supported the case of the prosecution and in order to avoid any confusion, the prosecution did not examine the aforenamed private Mashir. The charge on the face of it is defective; the prosecution is not certain with regard to the recovery of the Charas or opium from the possession of the present appellants. The spot investigation has taken place and thereafter the F.I.R. Has been lodged there are also contradictions in the evidence of the prosecution witnesses the judgment has not been written in accordance with the mandatory provisions of section 367, Cr.P.C. As the cross-examination of the two witnesses of the prosecution has not been taken into consideration by the learned trial Judge while delivering the judgment. We have also seen with surprise the Mashirnama of recovery and we find addition in the said Mashirnama of recovery which has created doubt/ and the benefit of doubt goes to the accused.
24. ' The case of the prosecution is that on spy information that narcotic is being sold publicly at Katchi Abadi, Jamshoro Colony, Hyderabad. No efforts have been made by the complainant party to send any fake customer to pointed ,place to ascertain the truth with regard to the information. Questions Nos.1 and 3 in statement under section 342, Cr.P.C. Are in conflict with the case of the prosecution and this also goes unexplained by the prosecution.
25. The upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellants, particularly, when the private Mashir Yasin Sultan has not been examined on the factum of recovery, glaring inconsistency between the version of the prosecution and recovery of charges and opium from the possession of the appellants. There is no evidence with the prosecution with regard to co-accused Jehanzeb, who was arrested and thereafter absconded and it is strange to note as to how he made his escape good from the custody of Police and no such action has been taken against the cdncerned Police Officers.
26. Investigation on the face of it appears to be dishonest: officers in respect of investigation spoiled the whole case appears to be delinquent officers. Judgment written by the learned Judge is full of mots. In order to sum up the case, the prosecution has failed from all angles to prove its case beyond reasonable doubt against the appellants. We accordingly, give the appellants benefit of doubt, conviction and sentences are set aside. In result the 'appeal is allowed, the appellants Noor Muhammad Khan and Gul Dost alias Haji shall be released forthwith, if not required in any other crime.
27. ' The above are the reasons of my short order, dated 12-7-2001.