' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 3-6- 2002 passed by the learned Special Judge Control of Narcotic Substances, Naushahro Feroz in Special Case No.17 of 1999 (State v. Abdul Majeed and another) arising out of F.I.R. No. 53 of 1999 of Police Station Moro, District Naushahro Feroz. Under the impugned judgment, the learned Judge convicted the appellants under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced each of them to suffer imprisonment for life and fine of Rs.500,000 or in default thereof to suffer R.I. For two years each, with benefit of section 382-B, Cr.P.C.
2. Brief facts giving rise to the present appeal are that on 19-3-1999 at 12.30 p.m. The complainant Inspector Gul Hassan of Police Station Moro alongwith his subordinate staff left the police station for the purpose of checking vehicles after making entry at Serial No.16 in the station diary. They went to Dadu Moro Link Road and were checkingthe vehicles when at about 5.30 p.m. a car bearing Registration No.K. 7546 was found coming in which two persons were sitting. The car was stopped at the signal of the police. The complainant found a gunny bag lying on the rear seat of the car.
The appellant Lal Dino was sitting on the driving seat whereas appellant Abdul Majeed was sitting on the passenger's seat of the car. On enquiry about the gunny bag they gave different replies, therefore, the complainant suspected them. The complainant took the possession of, the gunny bag, which was opened, and he found 66 packets of Charas weighing 71 kgs lying in it. Two packets and some pieces from other packets weighing 2- kgs.And 300 grams were taken as sample. The sample and the remaining property were sealed separately. The appellants were arrested and such Mashirnama was prepared. The appellants and the property were brought to the police station where the complainant lodged the report. The packet of sample was sent to Chemical Analyser for examination and report. The report was in positive. After completing the investigation, the appellants were challaned in the Court of law.
3. On 16-11-1999, a charge under section 9 (c), Control of Narcotic Substances Act, 1997 was framed against the appellants but they pleaded not guilty.
4. In support of the case, the prosecution examined complainant Inspector Gul Hassan and Mashir ASI Ali Murad. They supported the prosecution case. The complainant produced the Chemical Analyser report.
5. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. Appellant Lal Dino in his further statement stated as under:-- "I am innocent. One day prior to this incident, police came to village of Kouro Khoso. I was standing with my car at Kazi Ahmed. S.H.O. Gul Hussain Gujar asked me to accompany him. I refused, on which he exchanged hot words and we fought with each other. Police brought me from Kazi Ahmed including Kouro Khoso and my Taxi car in presence of witnesses at Police Station Moro. I have been implicated falsely in this case, Kouro Khoso was challaned in a case of small quantity of Charas at the instance of A.S.-I. Ali Murad Mashir of this case.
6. Appellant Abdul Majeed in his further statement stated as under:-- "I am innocent. Mst. Razia Mehak Punjabi Bhatti was abducted from Moro. Police of Moro came in my village in search ofMst. Razia. Police picked up me and my wife in presence of villagers of my village. We were brought at police station, Moro and detained there. My brother Abdul Rasheed made telegrams against Gul Hassan Gujar, S.H.O.; who in order to save his skin implicated me in this case. Nothing was recovered from me. My N.I.C. Was taken from my village where I was brought with my wife. Police brought other persons in case of Razia Mehak who made applications to this Court. I produce the true copy of application and order vide. Exh.
19."
The appellants examined themselves on oath. The appellants also examined two witnesses, each in support of their case.
8. After considering the material available on record and hearing, the parties' counsel the learned trial Judge convicted the appellants as mentioned' above under the impugned judgment. The appellants were dissatisfied with the said judgment; therefore, they have preferred the present appeal.
9. We have heard the Advocates for the appellants, State counsel and perused the record of this case very carefully. The learned Advocate for the appellant Lal Dino has stated that the evidence of the P.Ws are contradictory to each other on material points; that the sample sent to chemical analyser was different from the sample prepared at the place of incident; that the property in the gunnay bag was not produced before the Court and that the trial Court had not considered the evidence of defence witnesses. He has further stated that in case where the case is based upon the evidence of police officials, then their evidence should be scrutinized carefully. On the said preposition, he has relied upon the case of Jamal Shah v. State 19,97 SCMR 1494. He has further stated that this is a case of two versions, therefore, the version favourable to the appellants should be accepted and relied upon a case of Ashique Hussain v. State PLD 1994 SC 879. On the point of non-production of property before the trial Court he has relied upon the case of Mst. Namis v. State (1997 PCr.LJ 1093), Ali Hssan, v. State (PLD 2001 Kar. 369) and Hakim Ali v. State (2001 PCr.LJ 1865).
10. Learned Advocate for appellant Abdul Majeed has adopted the arguments of the Advocate for the appellant Lal Dino and further added that even if a single doubt appears in the evidence, then the benefit should be given to the appellants. He has relied upon a case of Tariq Pervez v. State (1995 SCM R 1345).
11,. On the other hand the learned State counsel has stated that the entire case depends upon the recovery of property that the recovery has been proved from the statement of the complainant and Mashir; that the report of the chemical analyzer about the sample sent tohim for examination is in positive; that the trial Court has considered the defence plea of the appellants; that the contradictions pointed out by the Advocate for the 'appellants are minor in nature which can be overlooked. He has supported the impugned judgment.
12. We have given due consideration to the arguments and have gone through the evidence with the help of the learned counsel for the appellants. We found that the case is based upon the evidence of complainant' and Mashir. The evidence of complainant reveals that when they searched the car he found a gunny bag lying on the rear seat of the car. The said gunny bag was opened which contained 66 packets of Charas weighing 71 kgs. Out of them, two packets weighing 2 kgs. And pieces of Charas from other packets weighing 300 grams were sealed in separate packet for sending them to chemical analyser for examination and report. The remaining property was sealed in the gunny bag. Whereas the Mashir ASI deposed that 66 packets of charas weighing 71 Kgs. Were recovered from the car, out of which only two packets ofCharas were sealed separately for sending them to chemical analyser for examination and report and the remaining property was put in a gunnybag which was also sealed. In the cross-examination he clarified the position that he did not remember as to how many packets of Charas were lying on the front portion and how many packets of Charas were lying on the rear seat of the car but the packets were lying on both the portions of the car.
13. From the above statements, it is clear that both the witnesses are contradicting each other on material particulars. However, both the witnesses are unanimous on the point that the remaining property was sealed in a gunny bag. When the statements of both the witnesses were recorded in the Court, the property in the shape of two packets was produced before the Court. The witnesses identified the said packets to be the property of the case. The said two packets were exhibited in evidence as Articles 1 and 2. The list of property, which was produced before the Court prepared by the Reader of the Court is available on the record as Exh.
10. The list also shows that two sealed packets of Charas were marked as articles 1 and 2. It is further pointed out that both the packets were lying in the Court in sealed condition. The packets werenever opened in the Court to show their contents to the witnesses or their seals affixed on the packets to identify the property to the same property,which was sealed at the place of incident.
However, the sealed gunny bag, as alleged by both the witnesses, was not produced or available in the Court at the time of trial.
14. The case of the prosecution is that after taking out samples, the B remaining property was sealed in the gunny bag but the said gunny wasnever produced in the court. As such the property was not produced in the Court for verification and in support of oral evidence. Sealed gunny bag was the evidence in the shape of property as such the Court was deprived of examining a valuable piece of evidence. Not only the Court was deprived of examining the valuable piece of evidence but the accused was also deprived of his valuable rights in defending himself in the court. As such the accused was mislead in his defence and it had also occasioned a failure of justice.
15. Instead of gunny bag, packet was produced before the Court. It is not the case of the prosecution that the property sealed in the gunny bag was destroyed under section 516-A, Cr.P.C.
After obtaining a sample from it and that sample in sealed packet was produced in the Court in place of the property lying in the gunny bag. There is nothing on the record to show that the second sealed packet produced before the Court represented the property of gunny bag. Thus, the property was not available or produced before the Court, during the trial of the case, in support of oral evidence. When the property was not produced before the Court, then the oral evidence has been falsified by the non-productiOn of the sealed gunny bag in the Court. In the case of Mst.
Nargis (supra) of Federal Shariat Court it has been held that since there was no property available on the record. The matter had become doubtful. Similar view was taken in the case of Muhammad Asghar alias Papu v. Sarfaraz Khan reported in 1999 PCr.LJ 1575.
16: As regard the sample, the complainant stated that two packets of Charas and some pieces of Charas from other packets were sealed separately for chemical examination. The Mashir A.S.-I. Ali Murad deposed that only two packets were sealed as sample for chemical examination. The Mashir did not talk about the taking out pieces of Charas from other packets and included in the sample packet. The Chemical Analyser's report Exh.15 shows that he received two brown slabs and 64 small size black brown pieces wrapped in red tin plastic Panni. Thus the statement of both the witnesses and the chemical analyser report are contradictory to each other. As the complainant disclosed that some pieces of Charas were also in the packet of sample alongwith two packets whereas the Mashir stated that only two packets were sealed. He did not talk about the pieces taken out from other packets, whereas the Chemical Analyser's report shows that slabs and pieces were wrapped in red plastic Panni. Both the witnesses did not speak about the wrapping of two slabs and pieces of Charas in red plastic Panni. If the property was wrapped in red plastic Panni then it would have been a big exercise, which could have been completed with the help of several persons. But none of the P.Ws. Disclosed that they did it before the property was sealed. Thus, a doubt has been created as to how the chemical analyser had received the property wrapped in red plasticParini. In order to resolve this doubt it was incumbent upon the prosecution to have shown the contents of the packet, which was sent to chemical analyser for examination and was allegedly produced in the Court, to the witnesses. The record reveals that none of the packets were opened or desealed in the Court. They remained sealed. The prosecution did not try to show the contents of packets to the witnesses for identifying the packet sent to chemical analyser.
Furthermore, it is also not known as to out of two packets produced in the Court, which one was received from the chemical analyser after examination. Thus in the circumstances of the case of the non-desealing of the packets in the Court for showing their contents to the witnesses for identifying the property has adversely affected the prosecution case. Had the property been desealed in the Court, then the appellants would have an opportunity to see the property and would have cross-examined the witnesses in the light of the contents found available in the packets. The learned Advocate for the appellant has strongly argued that the property sent to the chemical analyser was different from the property sealed at the place of incident. Thus a valuable right of the appellants was affected and it had occasioned a failure of justice. The appellants must have been prejudiced in their defence not de-sealing the property and showing the contents of the packets to the witnesses or the appellants. It is surprising to note that the witnesses without descaling the property and by just looking at the sealed two packets lying in the Court, deposed that the property was same. The P.Ws. Without realizing the fact that after taking out sample from the bulk property the remaining property was sealed in the gunny bag which was not available in the Court. Then how these witnesses disclosed that the property lying in the Court was same.It appears that the witnesses were adamant to identify the property whatever was available in the Court to be the case property. Thus the report of chemical analyser, in the circumstances of the case cannot be safely relied upon.
17. However, both the witnesses did not state that the samples were weighed at the place of incident. Then a question arises as to how the complainant came to know about the weight of samples, which he showed to be 2 Kgs and 300 grams while deposing before the Court. A clarification was obtained from the complainant as to whether he had mentioned the weight of the sample in the Mashirnama of recovery and F.I.R. To which he replied in negative. Then he replied that the remembered the weight in the memory, therefore, he had given the same. In order to verify his memory a queStion was asked from him as to whether he remembered the kind of instrument of scale in which the property was weighed to which he replied in negative. It is pertinent to point out that the incident took place in the year 1999. The statement of complainant was recorded on 31-10-2001 after more than two years of the incident. It is not appealing to the common sense that he complainant would be remembering the weight of the samples, which he did not mention in the F.I.R. Or Mashirnama of recovery. However, it appears that he gave the weight of the sample after examining the chemical analyser's report, which shows that the net weight of the Charas was 2 Kgs and 300 grams. As ail eady observed, there is conflict between the oral evidence and chemical analyser report about the wrapping of the sample pieces in red plastic Panni and it is also not known as to whether the same property was produced before the Court, therefore, in these circumstances, a doubt has been created as to whether the property examined by the chemical analyser was the same which was sealed at the place of incident.
18. Furthermore, the statements of both the witnesses are contradictory to each other on the following points. According to the complainant a gunny bag was lying on the rear seat of the car, but according to the Mashir 66 packets of Charas were lying on the front and rear portion of the car. He did not talk that the gunny bag was lying on the rear' seat of the car or that the packets were lying in the gunny bag. But his evidence is very clear that the 66 Packets were lying on the rear and front portion of the car. According to the complainant he took out two packets of Charas and some pieces of Charas from other packets and then sealed the packet as sample whereas the Mashir stated that sample packet contained only 2 pieces of Charas.
19. After scrutinizing the evidence of the witnesses we are of the considered view that the evidence led by the prosecution is not free from doubt. However, if the above evidence is viewed in the light of defence taken by the appellants then it will be clear that the false implication of the appellants cannot be ruled out.
20. Now we will take the defence of the appellants. According to appellant Lal Dino as stated by him in statement under section 340, Cr.P.C., he was a Taxi Driver. On 18-3-1999 he was available at the Taxi Stand Kazi Ahmed where the complainant arrived along with .Other police officials. They asked the appellant to take them in the car but he told them that his car had no spare tyre, therefore, they maltreated him and then they put him in the lock-up and involved him in this case. In support of his case, appellant Lal Dino examined Bahram and Ahmed Nawaz Taxi Drives of Taxi Stand Kazi Ahmed. They fully supported the appellant by giving the same details as given by the /appellant Lal Dino. The learned prosecutor put their case to the witnesses in the cross-examination but they denied the spne. He did not ask any question denying the above facts. As such their statements went unchallenged on the above point.
21. Whereas the case Abdul Majeed is that 4 days before the incident, he was present in his house situated in his lands in District Khairpur. At about 10-30 a.m. The complainant alongwith his subordinate staff reached there. They searched his house in connection with an abduction case and then they took the appellant and his wife to Moro Police Station where they were put in the lock-up. The appellant examined two defence witnesses namely Muhammad Amin and Sadoro.
D.W. Muhammad Amin was Hari of the appellant whereas D.W. Sadoro was residing near the house of the appellant. They both deposed that on 15.3-1999 at 10-30 a.m. a police mobile came at the house of the appellant. The police searched the house of the appellant and then the police took away the appellant and his wife on the ground that they were involved in an abduction case. The appellant and his defence witnesses were dross-examined by the Special Prosecutor. The learned Prosecutor put their case to the witnesses in the cross-examination but they denied the same. The Prosecutor in the cross-examination to the witnesses did not challenge the allegation levelled by the appellant and the witnesses. Thus, their evidence also went unchallenged.
22. If the case of the prosecution and the pleas of the appellants are examined in juxtaposition with each other, then it will be clear that the case of the prosecution is highly doubtful against the appellants in view of above mentioned defects in the evidence and non-production of the property before the trial Court. Whereas the defence pleas have been through their witnesses. In a situation like this, the Hon'ble Supreme Court of Pakistan in the case of Ashiq Hussain v. State (supra) at page 883 observed as under:- "The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused undei ,section, 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the proseCution evidence, then the Court must accept the statement of accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted."
23. After considering the material available on the record we are of the considered view that the prosecution have failed to prove their case against the appellants beyond any reasonable doubt, therefore, the appellants are entitled to benefit of doubt which was accordingly given to them at the time of passing short order.
24. Above are the reasons of our short order dated 13-11-2003 by which we had disposed of the appeal as under:-- for the reasons to be recorded separately, we allow this appeal and set aside the conviction and sentence. The order of confiscation of the car is also set aside; the car may be returned to its owner on production of valid documents. The appellants may be set at liberty forthwith if not required in any other case."