RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 17-6- 2003 passed by the Special Court, Control of Narcotic Substances, Karachi Division in Special Case No,112 of 2000 (The State v. Ghous Bux). The learned Judge under the impugned judgment convicted the appellant under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced him to suffer R.I. For 10 years and fine of Rs,1,00,000 (Rupees One Lac), or in default thereof, to suffer R.I for 6 months, with benefit of section 382-B, Cr.P.C.
2. Brief facts giving rise to the present appeal are that on 29-1-2000, the complainant Inspector Javed Akhtar Malik of Police Station Sharah-e-Noor Jehan, Karachi, and his' subordinate staff were on patrolling duty. At about 1-00 p.m., in the night, they reached at Block-P of North Nazimabad, De- Silva Town. The complainant received spy information that 4 persons having huge quantity of Charas were available near the hotel of D-Silva. On receipt of the said information, the complainant alongwith his subordinate staff and after taking a private person Muhammad Akram to act as Mashir went to the pointed place where they found 4 persons 'standing in a- street. After seeing the police party, one person out of the said four persons threw a plastic bag on the ground and ran away. Whereas, the police apprehended the remaining 3 persons. On inquiries, the said persons disclosed their names Nazar Muhammad, Ghous Bux (the appellant) and Muhammad Iqbal. They were having bags in their hands, which were secured one after: other. From the search of the bag of the appellant, the police secured 5 kilograms of Charas. A sample of 200 grams of Charas was taken out from the property for sending it to the Chemical Analyser for examination and report. The sample and rest of the property were sealed separately. The appellant was arrested. From the search of the bags of other persons narcotic substances were secured. The police arrested those persons also. A common Mashirnama was prepared in presence of private person Muhammad Akram and H.C. Taj Muhammad.
3. The police after usual investigation challaned ti.e appellant in the Court of law.
4. The trial Court tried and convicted the appellant as mentioned above under the impugned judgment.
5. We have heard the Advocate for the appellant, State Counsel and perused the record of this case very carefully.
6. The learned Advocate for the appellant has argued that there are material contradictions in the evidence of witnesses; that the police took private person Muhammad Akram to act as Mashir but he was given up by the prosecution without assigning any reason which has created doubt in the evidence and the prosecution story. He has relied upon a case Iltaf Hussain v. State reported in 1996 SCM R 167. He has, further stated that the samples were secured on 29-1-2000 whereas, the same were sent to Chemical Analyser in the month of August, 2000, with a delay of about 8 months which has created doubt in the Chemical Analyzer report. He has relied upon a case of Jamil Shah v. State 1997 SCM R 1494 and a case of Sultan Zari v. State reported in 1986 PCr.LJ 1723 (PSC). He has further argued that the case of the prosecution is highly doubtful.
7. On the other hand the learned State Counsel has stated that the prosecution have examined 3 witnesses who have fully supported the prosecution case and implicated the appellant with the crime; that there are no material contradictions in their evidence but the contradictions pointed out by the Advocate for the appellant are minor in nature, which can be ignored. On the point of non-examination of private Mashir, the learned State Counsel has stated the prosecution is not required to examine all the witnesses but the evidence available on the record is enough to prove the charge; that on the point of recovery of Charas, coMashir H.C. Taj Muhammad was examined, therefore, there was no need for examining the second Mashir. On the point of delay of sending the sample to Chemical Analyzer, he has stated that mere delay is not enough to discard the Chemical Analyzer report. He has relied upon a case of Muhammad Mushtaq v. State, reported in PLD 2001 SC 107. He has supported the impugned judgment.
8. We have given due consideration to the arguments and have gone through the evidence with the help of learned Advocate for the appellant and State Counsel. In this case, the prosecution have examined 3 witnesses namely P.W.1 Mashir H.C. Taj Muhammad. He gave the same details of the incident as mentioned above and stated that he and co-Mashir Muhammad Akram acted as Mashirs of recovery of Charas from the possession of the appellant and the Investigating Officer, prepared a sample of Charas in his presence and in presence of private Mashir Muhammad Akram. P.W.2 Inspector Javed Akhtar is complainant. He also gave the same details of incident as mentioned above and as stated by P.W.1. The prosecution also examined P.W.3 S.I.P. Muhammad Ilyas. He is Investigation Officer. He dispatched the sample to the Chemical Analyser and produced the Chemical Analyser report. In the cross-examination, he stated that he did not remember when he dispatched the sample to Chemical Analyser, but it was received by the Chethical Analyser on 12-8-2000.
9. A perusal of record and proceedings of the trial Court show that on 2-8-2002, after recording the statement of P.W.1, Mashir Taj Muhammad, the prosecutor gave up the private Mashir Muhammad Akram on the ground that on the same point he had examined Mashir, H.C. Taj Muhammad. From the above position it is clear that on the date of hearing viz. 2-8-2002 the private Mashir Muhammad Akram was present but the prosecutor did not examine him and instead thereof he examined police official H.C. Taj Muhammad. In this case, the prosecutor examined all the police officials. It is pointed out that the police took efforts to procure the attendance of a private Mashir so as to support the police case through an independent witness but the prosecutor did not avail the said opportunity by examining him and getting support from a private and independent person but chose to rely upon police witnesses. No doubt, it is for the prosecution to decide as to which witnesses are to be examined from the list of witnesses and to prove the case in the manner in which they chose to do. However, heavy responsibility lies upon them to examine the private and independent witness if he is available. Non-examination of such witness would adversely affect the prosecution story and veracity of other witnesses. If the private and independent Mashir was not available or he was dead or his attendance could not be procured without undue delay or expenses or for other cogent reasons, then the prosecution can rely upon the evidence of police witnesses. But. When a private and independent witness is available then it was incumbent upon the prosecution to examine the said witness for the simple reason that in this type of case best piece of evidence is the evidence of private and independent witness. If the said evidence is not led, then it will adversely reflect upon the prosecution story.
10. It is well-settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some sinister motives behind it in not producing the said evidence. Even otherwise, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in the matter.
1 1 . In the present case, best piece of evidence in the shape of P.W Muhammad Akram was available with the prosecution, but they did not examine him as such the prosecution had some sinister motive behind it in withholding the best piece of evidence. Furthermore, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can be raised that had the P.W.
Muhammad Akram been examined in the case he would have not supported the prosecution case.
12. In the similar circumstances the Hon'ble Supreme Court of Pakistan also took the same view in the case of Iltaf Hussain (supra). The facts of the case were that the police conducted a raid on the house of the accused. They found the accused standing outside the house armed with a Klashnikov. He was apprehended. Klashnikov was unlicensed, which was secured in presence of two Mashirs. Out of them, one was a private Mashir. The prosecution did not examine the private Mashir but relied upon the evidence of police officials, including the police Mashir. The trial Court convicted the appellant on the basis of said evidence, which was maintained by the High Court.
The Hon'ble Supreme Court granted leave to appeal to consider the impact of non-examination of the private Mashir in the case. At page 170, it has been observed as under: "We have heard the learned counsel for the parties and have read the record. We have serious doubt about the prosecution version and as such, have been persuaded to interfere in the case because there was no credible account of the incident available on record. Muhammad Anwar was cited by the prosecution to establish its case but during trial, after recording evidence of Police officials, in routine, the prosecutor stated that Muhammad Anwar had been won over and as such, he was given up. We do no find any explanation whatsoever for dropping him from the list witnesses in the given situation. He was, undoubtedly, the most important witness who, according to prosecution, attested the recovery. A mere declaration of the prosecutor would not be enough to abandon such a witness. He, off the cuff, said that the witness was won over. There is nothing to show that the witness had been won over as he did not appear before the Court. If the witness, after appearance, did not support the prosecution, he could be declared hostile and subjected to cross-examination by the prosecutor to find out the truth. This procedure was not adopted for the reasons best known to the prosecution. The prosecution was under duty to prove its case beyond any shadow of doubt on the basis of best possible evidence. The best evidence, in our view, was not produced by withholding Muhammad Anwar. An adverse inference could, therefore, be drawn that, in case, Muhammad Anwar was produced, he would not have supported the prosecution story under illustration (g) to Article 129 of the Qandn-e-Shahadat Order, 1984. The said Article alongwith the illustration is reproduced below to highlight the importance of the point:--
129. Court may presume existence of certain facts.---The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case--- Illustrations that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
(i) In absence of aforenoted witness, testimony of Muhammad Hanif, S.-I. P.W.3 and Abudl Majid, S.- I. P.W.4 will pale into insignificance. It is held to be deficient to convict the appellant keeping in view the principles of safe administration of criminal justice."
13. The facts of the present case are on better footing than the above reported case as in the present case the private Mashir was available in Court. There is no allegation that the said witness was won over or hostile to the prosecution. The witness was given up solely on the ground that co- Mashir was examined. A duty was cast upon the prosecution to have examined the private Mashir, when there was no legal infirmity in examining him. As such: the ground taken by the prosecution in giving up private Mashir was not a legal ground in the circumstances of the present case. Thus, the prosecution must suffer on the above account.
14. Following the above authoritative dictum of the Hon'ble Supreme Court of Pakistan, non- examination of private and independent Mashir Muhammad Akram has adversely affected the prosecution story and the testimony of police witnesses.
15. As regards the delay in sending the sample to the Chemical Analyser, it is pointed out that the incident took place on 29-1-2000 whereas the sample was received by the Chemical Analyser on 12-8-2000 (after a delay of more than 7 months), as per Chemical Analyser report, (Exh.P-3 of lower Court record).
16. The prosecution examined S.I.P. Muhammad Ilyas, the Investigation Officer, who sent the sample to the Chemical Analyser but he did not remember as to when he dispatched the sample to Chemical Analyser for examination and report. The Chemical Analyser report (Exh.P-3) shows that the sample was received through a letter. However, it is surprising to note that the said letter does not contain the outward number of the police station or the date of sending the said letter. This has put the Court on guard to examine the circumstances under which the sample was sent after a delay of more than 7 months of its preparation. Usually, whenever an official letter is sent, it is always under an outward number and the date of its dispatch. If both the facts are missing in the letter, then one can presume that it was purposely done in order to conceal some facts. What were those facts; the same were required to be shown by the prosecution. Had there been delay of few days, then it could have been ignored, because of, certain formalities in taking permission of dispatching the sample. It could have also been ignored, if the entire case is not based upon the Chemical Analyser report. But if there is some other evidence available on the record to connect the accused with the commission of the crime, then delay per se in sending the material to Chemical Analyser would not affect the prosecution story, subject to condition, that plea of tampering with the property is not raised by the accused at the trial.
17. In the present case, the entire case hinges upon the Chemical Analyser report. If the Chemical Analyser report is doubtful or in negative, then even if there is ocular evidence, a conviction cannot be based solely on the said evidence. In this type of case the Court can convict an accused if it is proved through Chemical Analyser report that the property is narcotic substance. Therefore, the Chemical Analyser report plays a pivotal and important role. If there is some material defect in it, which goes to the root of the case then it cannot be ignored. Under these circumstance, the prosecution were required to explain the delay in sending the property to the Chemical Analyser for report, so as to satisfy the mind of the Court, that there was no tampering with the property. As the Investigation Officer 'while dispatching the sample to the Chemical Analyser did not mention the outward number of the police station or the date in the letter, therefore, it shows some non- genuine grounds or some mala fide intention on the part of police for concealing the above said facts in the said letter. Thus, in the above circumstances, delay in sending the sample to Chemical Analyser without any explanation has affected the report.
18. Similar view was taken in the case of Sultan Zari (supra) in which there was delay of only 12 days in sending the sample to Chemical Analyser and the Federal Shariat Court did not give importance to it, which could be given to Chemical Analyser report. Similar view was also taken by the Hon'ble Supreme Court of Pakistan in a case of Jamil Shah (supra). In that case, which was a case of recovery of heroin, the trial Court relying upon the Chemical Analyser report and oral evidence convicted the accused. In appeal, the Federal Shariat Court maintained the conviction. The Hon'ble Supreme Court of Pakistan granted leave to appeal to consider the questions (i) that though the heroin powder was recovered from the appellant on 20-9-1992 but it was sent to the Laboratory on 11-10-1992 without any explanation for inordinate delay and (ii) contradictions in the evidence. Thus, there was delay of only 21 days in sending the heroin to Chemcial Analyser for examination and report, the prosecution did not furnish any explanation for such delay, and the Hon'ble Supreme Court treated such delay as inordinate delay coupled with contradictions in the statement of witnesses and the accused was acquitted. Following the above authorities, it is held that Chemical Analyser report (Exh.P-3) has lost its importance, in the circumstances of the present case.
19. The State Counsel has relied upon a case of Muhammad Mushtaq (supra). The facts of the case were that a murder took place in which the accused was involved. The police secured crime empties from the place of incident. The accused presented a licensed gun before the police. The crime empties were secured on 12-9-1980 whereas the accused produced the gun on 15-9-1980.
The crime empties and gun were sent to Balistic Expert on 15-10-1980, i,e, after one month. In that case, there was ocular and medical evidence, coupled with the evidence of above mentioned recoveries. An objection was raised that the incriminating articles were sent with a delay of about one month but the Hon'ble Supreme Court repelled the said arguments on the ground that no plea of tampering or manipulating with articles was taken at the time of trial, therefore, in those circumstances the Hon'ble Supreme Court held that delay per se cannot be treated fatal in the absence of objection of tampering or manipulating with articles.
20. In the present case, the delay is of more than 7 months. The Investigation Officer did not know as to when he sent the sample to Chemical Analyser; but the Chemical Analyser received the article after more than 7 months. The letter under which the sample was sent, does not bear the outward number of police station and the date. No explanation has been furnished for the above defects in the letter. D Apparently the same have been concealed for the reasons best known to the prosecution. In the present case, entire case hinges upon the report of Chemical Analyser. If the report is doubtful then the prosecution cannot be benefited from the other evidence available on the record viz. Oral evidence. As such, the facts and circumstances of the case of Muhammad Mushtaq (supra) are distinguishable from the facts and circumstances of the present case.
21. The facts and circumstances of the case of Jamil Shah (supra) are identical to the facts and circumstances of this case. In the said case the Hon'ble Supreme Court of Pakistan treated the delay of 21 days in sending the heroin to Chemical Analyser as inordinate delay as the prosecution failed to furnish explanation for such delay and the accused in that case was acquitted.
22. After considering the material available on the record we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled for benefit of doubt, which is accordingly given to him. Consequently, we set aside the conviction and sentence awarded to the appellant under the impugned judgment. The appellant is acquitted and set at liberty. The appellant is in custody. He should be released forthwith if not required in any other custody case.
23. Above are the reasons of our short order dated 26-9-2003 by which we had allowed the appeal.