1. ' FA1Z MUHAMMAD QURESHI, J.---The present appellant has called .In question the impugned judgment dated 24-2-2001, passed by learned Vth Additional Sessions Judge/Special Judge, for Narcotics, Shikarpur, in Sessions Case No, 30 of 1997 whereby the appellant has been convicted and sentenced under section 9(c) of Control of Narcotic Substances Act, 1997, to suffer R.I for 10 years and to pay fine of Rs, 11,000, in default of payment of fine, he has to undergo one year further R.I. He has also been accorded the benefit under section .382(b), Cr. P.C .
2. ' Prosecution story, as per F.I.R, goes to say that on 15-9-1997 at about 2000 hours S.I.P Muhammad Bux Kehar of C.I.A. Police Shikarpur lodged his report in Roznamcha register on behalf of the State, stating therein that he alongwith HC-131 Imam Dino, PC-12062 Chakar Ali, PC-Munir Ahmed Shah, PC-1302 Ghulam Shabir, PC-1447 Abdul Karim, PC-1299 Hussain Bux duly armed with and dressed under Roznamcha Entry No,14 at 1500 hours on 15-9-1997 on Government Vehicle No,SP-4862, driven by driver. HC-69 Ghulam Rasool left C.I.A Office for patrolling in the District. During patrolling when at about 1900 hours they reached at the hotel of Dodo Goth Stand, they saw one person alighting from Coaster, came from Sukkur, and said person was having one date-leaf basket (Chhali). The said person on seeing their Government Vehicle coming, tried to go down from the road towards eastern side, hence they suspected him. The police party stopped their vehicle, got down and apprehended the accused at the distance of about 15-20 paces. The said person was enquired about his identity who disclosed the same to be Rahim Bux son of Ghulam Haider Mahar resident of Dodo Goth Taluka Lakhi Ghulam Shah. Police secured Date-leaf basket from right hand of the accused and found one blue coloured plastic bag containing four slabs and one-half slab of Charas in it. Police further found that on each slab of Charas word Kabil was written in Urdu language and so also same word was written on half slab of Charas. The said slabs were wrapped with plastic. After nominating HC-Imran Dino and PC-Abdul Karim as mashirs complainant took the personal search of the accused and found nothing. Subsequently, the Chars was weighed by HC-Imam Bux which became 4 and a half kilograms and the same was sealed then and there, and prepared such mashirnama on torch light. Thereafter, the police party brought the accused and property at C.I.A. Where he was booked under section 9(c) of the Control of Narcotic Substances Act, 1997 for possession and selling Charas and such F.I.R was lodged on behalf of the State.
3. ' Learned trial Court formulated the following point for determination.
4. "Whether on 15-9-1997 at 7-00 p.m. At Bus Stop of Dodo Goth on Indus High Way, accused was arrested by police party C.I.A Police, Shikarpur, headed by S.I.P Muhammad Bux Kehar and from his right hand he secured 4 and a half kilograms Charas viz: four slabs and one-half slab lying in blue colour plastic bag lying in Date-leaf basket (Chhali) and found in possession of said Charas as alleged by the prosecution?"
5. ' Having gone through the evidence adduced by the prosecution and material available on record, the trial Court passed the judgment in terms stated above.
6. ' We have heard the learned counsel for the appellant and Mr. Gul Hassan Solangi, Advocate for A.A.-G. For the State and with their assistance, we have gone through the evidence adduced by the prosecution and the other material available on record.
7. ' At the very outset, Mr. Ghulam Muhammad Khan Durani, learned counsel for the appellant has raised objection that the cognizance has been taken by wrong person who is S.I.P/C.I.A personnel at Center Shikarpur and the impugned judgment is liable to be set aside on this score. He has further drawn our attention on the FIR, dated 15-9-1997 which has been registered on behalf of the State by S.I.P. Muhammad Bux Kehar, C.I.A Center, Shikarpur and has read contents of the F.I.R. And has further contended that another witness in the case is Imam Dino, Head Constable of C.I.A Center, Shikarpur. Next contention of the learned counsel for the appellant is that not only the C.I.A personnel have arrested the appellant/accused but so also they have prepared the mashirnama of arrest, recovery of charas and brought the accused and case property at C.I.A Center, Shikarpur where the S.I.P Muhammad Bux Kehar, C.I.A Center, Shikarpur registered the F.I.R on behalf of the State. Since the C.I.A personnel has taken cognizance of the case by arresting the accused, prepared the mashirnama of Wardat and recovery and thereafter, the F.1.R has been registered by them, under law the wrong person has taken cognizance and has placed reliance on PLD 1997 SC 408 at page 411 wherein Honourable Supreme Court has held that under section 156, Cr.P.0 power to investigate cognizable offence-C.I.A personnel are not authorized to take cognizance of cognizable offence and investigate the same under section 156, Cr.P.C. It is further contended by the learned counsel for the appellant that the complainant S.I.P. C.I.A Center, Shikarpur had left C.I.A Center, Shikarpur vide Entry No,14 and no such Entry No, 14 has been produced before the trial Court and non-production of such genuine document cuts the root of the prosecution's case and he has placed a reliance on PLJ 1997 Criminal Cases 575 (sic) and 1998 PCr.LJ 1308. He has further drawn our attention on the statement under section 342, Cr.P.0 of the appellant and according to Mr. Durani on the first page of the statement, there is no signature of the present appellant and the certificate has not been written in the own handwriting to the Presiding Officer and there is flagrant violation of the mandatory provisions of section 364(ii), Cr.P.C. He has further elaborated his contention by making submissions that the evidence of the defence witnesses namely Karim Bux, Qalander Bux and Muhammad Yaqoob has not been taken into consideration by the trial Court. He has further drawn our attention on the application dated 16-9-1997 made by Karim Bux who is a real brother of the appellant addressed to the Honourable President of Pakistan, Islamabad who has complained against the excesses of Police of Lakhi Ghulam Shah Police Station.
8. ' On the other hand, Mr. Ghulam Hassan Solangi, Advocate for A.A.-G for the State has contended that only appellant has been arrested by C.I.A. Personnel and thereafter, he was handed over to Niaz Ahmed Farooqi, S.H.O. Police Station, Lakhi Ghulam Shah, cognizance has been taken by S.H.O., Police Station Lakhi Ghulam Shah and there is no illegality in taking cognizance by the C.I.A personal. He has placed reliance on 2001 SCMR 36 and according to him, appeal has no merits and is liable to be dismissed. Mr. Ghulam Hassan Solangi, Advocate for A.A.-G for the State has not touched the other grounds raised by learned counsel for the appellant.
9. ' We have considered the arguments rendered by the learned counsel for the parties with anxious thought. Admittedly the S.I.P Muhammad Bux Kehar, C.I.A Center, Shikarpur has not only lodged the F.I.R on behalf of the State, but has arrested the appellant, prepared the mashirnama of arrest and recovery and both were brought at police station which amounts to taking cognizance of the offence. Reliance has been placed by learned counsel for the State on 2001 SCMR 36, wherein the C.I.A. Authorities after effecting recovery of narcotics, they have not proceeded with the matter and the case was registered by another P.W. Namely Shaiban but in the instant case C.I.A. Personnel namely S.I.P. Muhammad Bux Kehar has not only arrested the appellant but has prepared the mashirnama of arrest and recovery, then brought both of them at Police Station viz C.I.A. Center, Shikarpur where the F.I.R. Has been registered on behalf of the State by S.I.P. Muhammad Bux Kehar, C.I.A. Personnel, Shikarpur and thereafter he submitted the report to Niaz Ahmed Farooqi, S.H.O. Of Police Station, Lakhi Ghulam Shah who lateron incorporated the F.I.R. In a book under section 154, Cr.P.C. Section 166 subsections (3) and (4) is very relevant in this regard which is reproduced as under.
10. "Section 166 (1). An officer in charge of a Police Station or a Police Officer not being below the rank of sub-inspector making an investigation may require an officer incharge of another Police Station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made within the limits of his own station .
(2) Such officer on being so required, shell proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer incharge of another police station to cause a search to be made under subsection(1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in-charge of a police station or Police Officer making an investigation under this chapter to search, or cause the be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own station.
(4) Any officer conducting a search under subsection (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situated, and shall also send with such notice a copy of the list (if any) prepared under section 103 and shall also send to the nearest Magistrate to take cognizance of the office copies of the record referred to in section 165 subsections (1) and (3)."
11. ' From the bare reading of aforementioned section, it was duty of the S.I.P Muhammad Bux Kehar, C.I.A. Center, Shikarpur that he had to immediately approach the S.H.O., Police Station Lakhi Ghulam Shah after the arrest of the appellant and had to hand over the accused alongwith case property and thereafter the F.I.R. Would have been registered by S.H.O., Police Station Lakhi Ghulam Shah but in the instant case it has been done after not only arrest but preparing the mashirnama of arrest and recovery and registration of F.I.R. And thereafter, the same Statement has been sent to Niaz Ahmed Farooqi S.H.O. Who incorporated the same in a book under section 154, Cr.P.C. It is not clear from the material available on record that C.I.A. Personnel were put lncharge by any competent Authority of the law to take cognizance of the case and to investigate the case as required under section 156, Cr.P.C. Reliance can be placed on PLJ 1995 Karachi 16 (sic) where this Court has held that under section 156, Cr.P.C. Investigation by law enforcing agency and officer of law enforcing agency are not police officers and are not authorized to collect material/evidence against the accused. Reliance can be placed on PLD 1993 Karachi 735 where in it has been held by the D.B, of this Court that the investigation takes place after information.-relating to the commission of an incident is given to the officer and the same is taken out in a hook contemplated by section 154, Cr.P.0 as the first information report and also includes by the proceeding under the Court for conclusion of evidence conducted by the police officer or any person other than a Magistrate who is authorized in this behalf. It has been held that the officer of the law enforcing agency are not police officer, and therefore, they are not authorised to collect any material/evidence against the accused. The material evidence already collected by C.I.A. Personnel is without any authority and the concerned police officer could not rely on the material/evidence already by the C.I.A ,personnel as the same was not collected by the police officer during the course of investigation. In the present case as discussed supra, the appellant has been arrested by C.I.A personnel, Mashirnama of arrest and recovery of Charas have been prepared by them and thereafter accused has been handed over to Police Station Lakhi Ghulam Shah against whom the brother of the present appellant has already complained vide application dated 16-9-1997 addressed to Honorable President of Pakistan and this all appears to be manipulated affair and we reach the irresistible conclusion that the cognizance has been taken by the C.I.A personnel which is not warranted under the law.
12. ' We have also examined another aspect of the case that prosecution is relying on the Station Diary No,14 and the same has not been produced by the prosecution before the trial Court and the whole case depends on the production of aforementioned station diary as it is a case of prosecution that C.I.A personnel alongwith subordinate staff left their Center for patrolling and found present appellant in possession of Charas and in order" to strengthen their version it was the duty of the prosecution and non-production of such vital document has vitiated the trial and in these circumstances the benefit of doubt goes to the appellant.
13. ' Upshot of the above discussion is that cognizance has been taken by a wrong person who was not competent to take cognizance under the law and we are being fortified by the law cited by. The learned counsel for the appellant. Non-production of station diary which is a vital document has also caused dent in the version of the prosecution and the evidence of the defence witnesses have not been discussed by the trial Court and we also find an illegality in the statement of the appellant under section 342, Cr.P.0 as on the very first page of the statement under section 342, Cr.P.0 we have not found any signature of the appellant and on the next page although there is a signature of the appellant but the certificate has not been written in the handwriting of the Presiding Officer and we find flagrant violation of the mandatory provisions of section 364(ii) and taking into consideration this illegality coupled with the other pieces of evidence, we find that there is a doubt in the case which is to be accorded in favour of the appellant and accordingly we give him benefit of doubt.
14. ' In result appeal is allowed. The conviction and sentence are set aside. Appellant shall be released forthwith if not required in any other crime.
15. ' Above are the reasons of short order dated 25-5-2001. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.