1. ' GHULAM NABI SOOMRO, J.---This is an appeal preferred by two convicts/appellants namely Naqeebullah and Faiz Muhammad against their conviction under section 9(C) of Control of Narcotic Substances Act, 1997 and sentence of R.I. For 14 years and fine of Rs,10,000 each, in default whereof to suffer further R.I. For six months by the Special Court (CNS) Karachi Division at Karachi vide its judgment dated 7-2-2001.
2. ' The prosecution case briefly stated is that on 21-4-1999 Excise Inspector Ghulam Rabbani upon receipt of spy information proceeded to House No,3, Iqbalabad Drigh Colony, Karachi and there he secured from two persons (the appellants) at about 3-00 p.m. On that date, Charas weighing about 12.420 K.Grams. The narcotic was taken into custody so also the appellants. Such mashirnama was prepared in presence of mashirs namely Syed Masroor Hussain P.W.1 and Syed Mudassir Hussain P.W.2 signatures of other two Excise Inspectors namely Mansoor Ahmed and Syed Raza Abbas were also obtained upon the mashirnama of recovery as recovery witnesses. The property and the appellants were brought at the Excise Police Station and a case F.I.R. No,4 of 1999 under section 9 (C) of C.N.S. Act, 1997 and Articles 3, 4 of the Prohibition (Enforcement of Hadd)
3. Order, 1979 was registered against them. At the conclusion of the investigation, the appellants were challaned for the aforesaid offences.
4. ' Charge was framed against the appellants to which they pleaded not guilty and claimed to be tried.
5. ' At trial the prosecution examined Syed Masroor Hussain as P.W.1, Syed Mudassir Hussain as P.W. 2 and Excise Inspector Ghulam Rabbani, Investigating Officer as P.W.3 whereafter closed its side.
6. ' The appellants were examined under section 342, Cr.P.C. Wherein they denied all the allegations levelled against them. Both the appellants also made further statement and also led defence evidence. In the defence both the appellants have stated that they are relatives, Government servants and were falsely involved by the complainant/Excise Inspector Ghulam Rabani due to their enmity with Malik Mosa, A number of documents have been produced in defence to show that mashir Syed Mudassir Excise Constable had acted as mashir in several cases of Excise Police.
7. ' We have heard the learned counsel for the appellants and the learned A.A.-G. For the State, have perused the record of evidence and the impugned judgment. It has been contended by the learned counsel for the appellants that independent public men namely Syed Masroor Hussain who was picked up as mashir has not supported the case of prosecution and was declared hostile where after Excise Constable Syed Mudassir a subordinate of P.W.3 was examined as co-mashir who too has not supported the prosecution version in toto and has stated that he had not gone alongwith the Investigating Officer inside the room from where the recovery of Charas was effected. He was told by the Investigating Officer that a huge quantity of Charas had been recovered from the room. He had also said that he did not know as to who prepared the mashirnama of recovery of Charas and the Mashirnama of arrest of the accused. It was further contended that as per this witness the incident occurred some time before "Maghrib prayer" whereas the complainant Inspector Ghulam Rabbani P.W.3 stated that the incident took place at 3.00 p.m. It was also argued that mashir Syed Mudassir has further stated that Charas was not sealed in his presence and that he had acted as mashir in several cases. It was also urged that mashir Syed Mudassir has admitted in his cross-examination that it is correct that I saw first time the Charas at the Excise Police Station and the place of occurrence. I saw only the bag present in Court." I was further urged that two other witnesses of recovery who are also Excise Inspectors and witnesses to the mashirnama of recovery and arrest of the appellants were not produced at trial and their non-examination would affect the case of the prosecution adversely. Learned counsel lastly argued that sole word, of the complainant/Excise Inspector Ghulam Rabbani who has also acted as Investigating Officer in the case cannot be relied upon and the conviction of the appellants cannot be passed upon sole testimony of such witness in an offence involving capital punishment.
8. ' On the other hand the learned A.A.-G. Appearing for the State has not been able to controvert the above contentions and the defects pointed out in the prosecution evidence. He has, however, submitted that the appellants have failed to prove enmity with the prosecution witnesses and such a huge quantity of narcotics cannot be foisted upon the appellants.
9. We have given our anxious considerations to the contentions raised above. The independent public Mashir namely Syed Masroor Hussain has not supported the prosecution case and was declared hostile. Nothing fruitful has come out from his cross-examination. Second Mashir namely Syed Mudassir who is Excise Constable and subordinate to the complainant Ghulam Rabbani P.W.3 has inter alia admitted that he saw Charas at the Excise Police Station for the first time whereas at the place of occurrence he saw only a bag. This witness during the cross-examination in Court was not shown the case property nor the same was produced through him. It was after four months that this witness was recalled and re-examined where the case property was formally shown to him to be lying in Court. Furthermore there are number of documents to show that Mashir Syed Mudassir was made to act as Mashir in several cases. Such a subordinate whose evidence suffers from the aforesaid omissions and commissions cannot be relied upon. The prosecution was not prevented from examining the two Excise Insepectors who have signed as witnesses the Mashirnama of recovery of Charras and arrest of the appellants from the place of occurrence. Their non- examination particularly in view of the evidence of the Mashirs would adversely affect the prosecution case and an inference can be safely drawn that even if they were examined they would not have supported the prosecution.
10. ' In view of the above we are not convinced that the -prosecution evidence is above board and fit for implicit reliance. We are convinced in our minds that the evidence on record falls short of conviction. We, therefore, allow the appeal of the appellants and set aside the conviction and sentences passed against them. They stand acquitted in the case. They are directed to be released forthwith if not required to be determined in any other case.