' S. ALI ASLAM JAFRI, J.---Appellant Abdul Rehman was charged, tried and convicted by the learned Special Judge, Narcotics and Sessions Judge, Shikarpur for having been found in possession of 3 Kgs. Of Charas on 7th September, 1996 at about 3 p.m., while he was travelling in a wagon, which was stopped by A.E.T.O. Agha Sikandar Ali Pathan and the members of his raiding party near Rice Wah, Jacobabad Road Shikarpur. The charge was denied by the appellant and he had claimed to be tried.
2. In support of its case, prosecution examined AETO Agah Sikandar Ali P.W.1 (Exh.7), who deposed that on 7-9-1996 he was posted as AETO Circle Officer, Shikarpur Town. On that date, he left the Circle Office at 2-45 p.m. Alongwith constables Rahim Bux, Dildar, Khair Muhammad, Muhammad Ayoob and Azizullah for general checking, after making such entry in the movement register.
Atabout 3 p.m. He stopped one wagon coming from Jacobabad side having passengers. One person sitting on the front seat of the wagon was having a plastic shopping bag kept on his thighs.
The said suspect was asked to get down from the wagon and after apprising him the relevant rules, his name was asked which he disclosed to be Abdul Rehman son of Sadaruddin Pathan resident of Maizal Ado, Zila Pisheen, Province of Baluchistan. From his personal search 9 notes of Rs.10 each and one wrist-watch was recovered. In the plastic bag which he was having with Charas was found- available duly wrapped and dirty cloth. The said material was weighed and found to be 3 Kgs. Such Mashirnama was prepared at the spot, which waS attested by two Mashirs namely Muhammad Ayoob and Sher Muhammad both Excise Constables as no private person from the wagon was ready to act as mashir and none else was present there. The said witness produced the Mashirnama of recovery as Exh.P/1, F.I.R., which was lodged after bringing the accused and the material at the Excise Police Station as kxh.P/2, and report of the chemical analysers certifying the material as Charas as Exh P/3 .
3. In cross-examination by the learned counsel for the accused, witness Agha Sikandar Ali stated to have kept the entry in the movement register, but admitted that the same was not produced before the Court. He further stated that in the Mashirnama he did not mention the wagon number in which the accused was found travelling. He also admitted that there were about 22 passengers travelling in the wagon including the driver, but he did not conduct search of any other person nor mentioned their names in the Mashirnama prepared at the spot. He also admitted that the material allegedly recovered from the plastic bag of the appellant/accused was not sent to the Expert till 18-11-1996 and the only reason given for such delay was that he might have forgotten to send the same to the Chemical Analyser though he remained posted at the same Circle for those two months. He denied that appellant was innocent and the property was foisted upon him.
4. The second witness P.W.2 (Exh.8) Sher Muhammad Excise Constable has stated that he had left Excise Police Station alongwith Agha Sikandar Ali AETO on 7-9-1996 and reached at the place of incident near Rice Wah at 3 p.m. Where a wagon was stopped by them. He further stated that the appellant was sitting in suspicious condition on the front seat and a bag was lying in his feet. He further stated regarding the arrest of the accused/appellant, his disclosure about his name to be Abdul Rehman, recovery of 9 notes of Rs.10 denomination and one wrist-watch from his person. He further stated that the plastic bag in possession of the appellant/accused was opened and it was found containing dirty cloth in which six slabs of Charas were found wrapped, which were weighed and found to be 3 Kgs. The said material was sealed at the spot. The accused/appellant alongwith material recovered was brought at the Excise Police Station where F.I.R. Was lodged by the A.E.T.O.
He testified to have signed the Mashirnama of recovery and arrest. In his cross-examination he stated that the passengers of the wagon were not counted and as such he was unable to give their number. He further stated that no body was searched from other passengers travelling in the wagon, which was made to stop only for about 2/4 minutes. He stated that he did not remember the colour of the shopping bag in which the material was found or the colour of the cloth, in which, it was wrapped. He further stated that "Sahib AETO had himself weighed the substance". He admitted that the traffic was plying on the road during the process of the arrest and recovery. He denied that the property was foisted upon the appellant and it was a false case. He admitted that the property/material was not sent to chemical analyser for pretty long time.
5. In his statement under section 342, Cr.P.C. The appellant denied the prosecution's case as put to him regarding his arrest and recovery of the material/Charas from his possession or the wrist watch or the currency notes allegedly recovered from him. He denied to give the statement on oath or to examine any witness in defence.
6. Learned trial Court/Special Judge, Narcotics and Sessions Judge, Shikarpur found the appellant/accused guilty of the charge under section 9(c) of the Control of Narcotic Substances Ordinance, LIX of 1996 and by his judgment dated 5-10-2000 convicted the appellant and awarded imprisonment for life, so also liable to pay fine of Rs one million or in default to undergo R.I. For five years more, hence this appeal.
7. We have heard Mr. Abdul Baqi Jan Kakar, learned counsel for the appellant and Mr. Muhammad Ismail Bhutto, learned State counsel.
8. Learned counsel for the appellant has argued that the appellant is innocent and he has been falsely implicated in this case. In support of his plea, he has formulated five points on which he has addressed us.
9. His first contention is that the case property was sent to the chemical analyser with a delay of more than two months and no plausible explanation for such delay has come from the Investigating Officer, who was himself incharge of that police station. He has further pointed out that there is nothing on record to show that during the said period, the property remained in safe custody, so that it could not be replaced or substituted. On this point he has referred to the, case of Javed Akhtar v.State (PLJ 1997 Cr.C. Lah. 1310) (DB), where the conviction was set aside after taking into consideration amongst other the fact that the case property was not kept in safe custody i.e. 'Malkhana" and same was transmitted to Chemical Examiner after seven days and the delay in dispatch was not explained. Learned counsel has also relied upon the case of Hamza v. State (2000 PCr.LJ 1360), where a Division Bench of this Court had allowed the appeal and it was held that delay in sending the property to chemical examiner would cast doubt on the factum of recovery.
10. The second point urged by the learned counsel is that non-production of the entry in the movement register to show that actually at the relevant time the Excise Police Party had left the police station for patrolling alongwith the members as shown in the F.I.R. And the Mashirnama, learned counsel has referred to the case of Qalandro alias Nazro v. State 1997 M LD 1632, where a Division Bench of this Court had observed that non-production of the copy of station diary to establish that the police party had actually left the police station at the relevant time, creates serious doubt in relation to the genuineness of the prosecution story.
11. The third point urged by Mr. Kakar is that the registration number of the wagon from which the appellant was allegedly arrested has not been mentioned in the Mashirnama of arrest and according to him, it is a relevant factor, which too has caused dent in the prosecution's case. In support of this contention, he has placed reliance on the case of Gul Nawaz v. State (1998 PCr.LJ 12), wherein a case under West Pakistan Arms Ordinance, 1965 the recovery was found to be suspicious where the registration number of the vehicle in which the accused was arrested was not mentioned in the Mashirnama of the recovery.
12. The fourth ground taken by Mr. Kakar is that the alleged recovery is in violation of S.103, Cr.P.C.
And no private and independent person has been associated as Mashir of arrest and recovery, hence it has no evidentiary value.
13. Lastly Mr. Kakar has argued with reference to the case of Tariq Pervez v. The State (1995 SCM R 1345) that benefit of doubt is always to go in favour of the accused/appellant and even one circumstance creating doubts can be considered to be sufficient to extend such benefit to an accused.
14. Mr. Muhammad Ismail Bhutto, learned State counsel has opposed to the grounds taken by the learned counsel for the appellant. He has argued that the appellant was arrested during day time by theExcise Police Party, a Mashirnama was prepared at the spot, the material was weighed and found to be 3 Kgs. Of Charas and there is nothing on record to suggest any enmity between the appellant and the concerned Excise Police. So far alleged violation of section 103, Cr.P.C. Is concerned, learned counsel Mr. Bhutto has argued that under the circumstances of the case that no private person was ready to act as Mashir, compliance of section 103, Cr.P.C. Cannot be pressed into service. He has, therefore, argued that the prosecution has proved its case beyond all reasonable doubts and the appellant has been rightly convicted by the learned trial Court. He has further argued that frequent availability of the narcotics in the society has become a menace, and, as such, minor discrepancies in the prosecution's case should not be given much weight so as to set aside the conviction.
15. We have given due consideration to the arguments of the learned counsel for the appellant and the learned State counsel. We find lot of force in the arguments of the learned counsel for the appellant with reference to various points raised by him with the help of case-law as discussed above, which have made the prosecution case highly doubtful. The culmulative effect of the non- production of the entry in the movement register, which was a document in the power and in possession of the prosecution coupled with the fact that the registration number of the wagon in which the appellant was allegedly travelling is not finding place in the Mashirnama (Exh.P/I), and the factum of keeping the sample of the material at the police station for a such long time without any plausible explanation gives rise to sufficient grounds to hold that the case of the prosecution is not free from doubts, though we do not agree with Mr. Kakar that non-associating of a private person to act as Mashir of recovery and arrest may also be fatal to the prosecution's case. Judicial notice can be taken of the fact that people usually hesitate to azt as witness and Mashir in order to save them from attending the Courts after leaving their all personal affairs and returning back without being examined from time to time. Even some people hesitate to act as Mashir or witness lest they may face annoyance and enmity at the hands of accused persons. However, as discussed above the remaining four points have put sufficient dents in the prosecution case though it might be the result of inefficiency or carelessness on the part of the Investigating Officer as we find in this case. We are, therefore, constrained to allow this appeal. Resultantly, the sentence and conviction awarded to the appellant is hereby set aside and he shall be released forthwith, if not required in any other case.