1. ' MUHAMMAD AFZAL SOOMRCI, J.---By this Criminal Appeal appellant Habibullah has assailed the judgment dated 22nd February, 2001, passed by the learned Sessions Judge & Special Court for CNS, Act, Jacobabad, in CNS Case No.48 of 1997 (The State Habibullah Hakro) under section .9(b)' isif the Control of Narcotic Substances Act, /997 whereby the. Appellant was sentenced -to suffer imprisonment for seven years and to pay a fine of Rs.25,000 or in default of payment of fine appellant-accused was directed to suffer further_imprisonment for a period of six months.
2. However, the appellant was given benefit. Of section 382-B, Cr.P.C. Fakts, briefly stated, are that on 5-10-1997, one A.S.-I. Muhammad Rafique Rind of PIS. Garhi Hakro, lodged a complaint: at the Police Station alleging therein that, on the same day, he along with his subordinates namely C-1810 Manthar Ali and C-723 Nihal Khan had gone in connection with the investigation of Crime No.33 of j997 registered under section 337-A-III, P.P.C., vide D.D. Entry No.5, dated 5-10-1997 and after completion of investigation at about 1415 hours, when they reached at the bank of Began Canal near village Qadir Pur Panhwar, a red colour motorcycle upon which two persons, later on known to be Irshad Ali son of Ariz 'Muhammad by caste Luhar, Habibullah son of Panjal by., caste Hakro and were seen coming who- upon having a look at the police party tried to get motorcycle reversed in a manner that the person namely Habibullah sitting behind Irshad Ali had fallen down with a plastic bag containing two pieces of Charas. However, Irshad Ali managed to make his escape good. The apprehended accused Habibullah (present appellant) disclosed that the said Charas was sold to him by said Irshad Ali. The said Charas was weighed to be 200 grams and therefore in presence of Mashirs Manthar Ali and Nihal Khan the appellant was arrested and 200 grams Charas was taken into custody out of which 10 grams were separately sealed for chemical examination and- on the basis of such Mashirnama and F.I.R., as above, was lodged.
3. ' After completion of usual investigation police submitted challan against the present appellant before the trial Court where charge against him was framed under section 9(c) read with section 6 of CNS Act, 1997.
4. ' Prosecution, in support of its case, examined P.W.1 P.C. Manthar as Exh.7 who has produced Mashirnama of arrest of the accused and recovery of Charas from him as Exh.8 and P.W.2 A.S.-I.P.
5. Muhammad Rafiq complainant as Exh.9 who produced F.I.R. As Exh.10 and the positive report of Chemical Examiner as Exh.11. For securing the attendance of coMashir P.C. Nihal Khan, non-bailable warrants were issued but since he had retired from service therefore evidence of Court witness A.S.-I.P. Ahtsham Ali was recorded as Exh.12 who deposed that, coMashir P,C. Nihal Khan had shifted to some unknown place and his present whereabouts were not known to anyone. Thereafter, the learned Special Public Prosecutor gave up the evidence of P.W. Nihal Khan and closed the side of prosecution vide. His statement as Exh.16.
6. ' The statement of appellant-accused under section 342, Cr.P.C. Was recorded as Exh.17 in which he denied all the allegations of the prosecution and stated that about three years back he reached at Garhi Khairo at about 10-00 a.m. At Bus Stand Gharhi Khairo from where he was taken awa.y by police who demanded money which he could not pay and therefore has been involved in this false case. The appellant-accused neither examined himself on Oath under section 340(2), Cr.P.C. Nor produced any witness in his defence. The trial Court relying on the evidence produced by the prosecution convicted and sentenced the appellant-accused as above.
7. ' We have heard the learned counsel for the appellant and the learned Assistant Advocate- General.
8. ' It has been contended by the learned counsel for the appellant that in view of section 22 of Control of Narcotic Substances Ordinance No.XL-III of 1997, the present complainant was not competent to lodge the report under section 9 of CNS Act, 1997. It has, further, been contended that the charge of the case was framed by the learned trial Court under section 9(c) of CNS Act read with section 6 of the CNS Act, 1997 whereas the perusal of concluding paragraph of the judgment reveals that the appellant has been convicted under section 9(b) of CNS Act, 1997. It has, therefore, been argued that no alternate charge or amended charge was framed and even the same had, mistakenly, been framed under section 9(c) read with section 6 of CNS Act. It has, also, been contended that there is material drastic/fatal contradictions and discrepancies in the statements of both P.Ws. On the point of recovery of alleged contraband inasmuch as complainant deposed that accused stopped their motorcycle at the distance of 20-25 paces away from them while P.W.
9. Manthar deposed that the accused had stopped their motorcycle at the distance of 8 feet.
10. Complainant, who himself had, acted as Investigating'. Officer of the case, had categorically deposed in the last para. Of his deposition that he lodged the F.I.R. And produced the same as Exh.10 but he did not depose whether it was bearing his signature or not and such attitude of the complainant shows his unawareness about the case of the prosecution. It has, further, been contended that neither D.D. Entry No. 5, dated 5-10-1997 was not produced before the trial Court to ascertain the fact that the complainant left the police station for the purpose mentioned in the F.I.R.
11. Nor the F.I.R. No.33 of 1997 along with its progress or investigation reports were filed to believe that they had left the police station for such purpose, hence the prosecution story as a whole is vitiative of law and becomes doubtful. It has, also, been contended that though contraband was claimed to be weighed from a shop of nearby village Qadirpur by. The police party but neither the Investigating Officer recorded the statement of such shopkeeper nor he was called upon by. The prosecution in Court to support its case. Besides, there is violatiOn.Of section 103, Cr.P.C. As no independent ,witness has been cited for the recovery., It is futilier. Argued . That contraband allegedly sealed at the spot or for that though neither the "memo. Of recovery and arrest were prepared at the spot, was not connected with the Crime No.35 of 1997 or any particulars with regard to case file and even it was not containing the signatures, of attesting witnesses. It has, also, been argued that the sole piece of evidence against the appellant with regard to his confession before the Police officials i.e. Complainant and Investigating Officer about the purchase of contraband from co-accused is not sustainable in the eye of laW and is totally in contravention of Article 39 of Evidence Act (Qanun-e-Shahadat), 1984 as according to the contents of F.I.R. To the extent that the contraband was purchased by him from co-accused then no offence was made out under section 9(b) read with section 6 of CNS Acr of 1997 which was not corroborated by the prosecution through any independent and circumstantial evidence and compliance under section 51 of CNS Act of 1997 was made. In view of above, it has, lastly, been argued that it is a fit case where the appeal may be allowed and the appellant may be acquitted. Learned counsel has relied upon the case of Khalid Nawaz v.
12. ' The State 1999 PCr.LJ 391 in support of his contentions.
13. ' Learned Assistant Advocate-General has supported the impugned judgment on the ground that neither any violation of section 103, Cr.P.C. Has been pinpointed nor any enmity has been alleged.
14. ' We have considered the arguments of both the learned counsel and have also perused the record.
15. There are contradictions and discrepancies in the statements of both P.Ws. On the point of recovery of alleged contraband inasmuch as complainant deposed that accused stopped their motor cycle at the distance of 20-25 paces away from them while P.W. Manthar deposed that the accused had stopped their motorcycle at the distance of 8 feet. Complainatir, ..Who himself had acted as Investigating Officer of the case, had categorically deposed in the last para. Of his deposition that he lodged the F.I.R. And produced the same as Exh.10 but he did not depose whether it was bearing his signature or not and such attitude of the complainant shows his unawareness about the case of the prosecution. Besides, witness Manthar admitted in his cross- examination that the parcel containing the case property and which was de-sealed in Court did not bear any time number or any particular of the case or name of the accused. Even the same did not bear their (Mashirs) signatures. It was also admitted by the said witness in his cross- examination that the nearby village namely Qadirpur was only one furlong away from the place of recovery and arrest of the appellant from where he upon the directions of the complainant went to the said village for getting the contraband weighed and it is surprising that when the contraband could be got weighed from the nearby village which was only one furlong away, then private Mashirs could also be arranged easily for compliance of the provisions of section 103, Cr.P.C. The said witness admitted in his cross-examination that he was not asked to bring any private person from the nearby village though directions in respect of getting the contraband weighed were given to him. It is also an admitted position that neither D.D. Entry No.5 dated 5-10- 1997 with regard to Crime No.33 of 1997 was produced before the trial Court to ascertain the fact that the complainant left the police station for the purpose mentioned in the F.I.R. Nor the F.I.R. No.33 of 1997, itself, along with its progress or investigation report was filed to believe that they had left the police station for such purpose. It is also an admitted position that though contraband was claimed to be weighed from a shop of nearby village Qadirpur by the police party but neither the Investigating Officer recorded the statement of such shopkeeper nor he was called upon by the prosecution in Court to support its case. Besides, as stated above, since though the contraband was got weighed from nearby village only at one furlong distance but no private/independent Mashir/witness was arranged from the said village, hence there is violation of section 103, Cr.P.C.
16. Moreover, since contraband allegedly sealed at the spot did not bear the particulars of any case nor there was any signature of any of the Mashirs so produced by the prosecution, its connectivity with present crime i.e. FIR'. No.35 of 1997 becomes doubtful. The sole piece of evidence against the appellant with regard to his confession before the police officials i.e. Complainant and Investigating Officer about the purchase of contraband from co- accused is not sustainable under the law and is totally in contravention of Article 39 of Evidence Act (Qanun-e-Shahadat), 1984 as according to the contents of F.I.R. To the extent that the contraband was purchased by him from co-accused then no offence was made out under section 9(b) read with section 6 of CNS Act of 1997 which was not corroborated by the prosecution through any independent and circumstantial evidence.
17. ' In view of what has been discussed above, we are of the considered view that the appellant has been able to make out his case for acquittal.
18. Accordingly, by a short order dated 29th November, 2002 we allowed this appeal and acquitted the appellant and these are the reasons for the same.