RAHMAT HUSSAIN JAFFERI, J., The present Appeal is directed against the judgment dated 15-4-1999, passed by the Special Judge (Control of Narcotic Substances) Thatta in Special Case No,388 of 1997 (State v. Haji and others), arising out of FIR No,103/1997 of Police Station Thatta. Under the impugned judgment the learned Judge convicted the appellant under section 9(b) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act, 1997), and sentenced him to suffer RI for three years and fine 'of Rs,5,000 or in default thereof to suffer RI for two months more, with benefit of section 382-B, Cr.P.C.
2. The facts giving rise to the present Appeal are that on 28-11-1997 at about 11.30 a.m. The complainant Inspector Abdul Latif of C.I.A. Police alongwith his subordinate staff including P.W.
Muhammad Siddique was on patrolling duty. On receipt of a spy information they reached near the Otaq of Shamoon Shah at about 12-45 a.m. The complainant found 5 or 6 persons available at the pointed place. The said persons after seeing the police party, ran-away except the present appellant, who was apprehended. From the personal search of the appellant, a Theli/bag was secured, which he was holding in his hand. The Theli/bag was opened, which contained four pieces and five Pawa of charas. The complainant secyred the Charas in presence of PWMuhammad Siddique and PW-Ghulam Akbar. Cash of Rs,500 was also secured from the possession of the appellant. A sample was prepared from the property for chemical analyser's report. The sample and the remaining property were sealed separately at the place of incident. The appellant was arrested and such Mashirnama was prepared. The appellant and property were brought to C.I.A.
Police station where the complainant prepared a statement, which was sent to police station Thatta for registration of case. The complainant investigated the case and after sending the sample/property to chemical analyzer, submitted the challan against the appellant and three co- accused persons in the Court of law.
3. On 4-11-1998, a charge under section 9 of Act, 1997, was framed against the appellant and three co-accused but they pleaded not guilty. In support of the case, the prosecution examined Mashir LNK. Muhammad Siddique and complainant Inspector Abdul Latif to prove their case. They deposed the same facts as mentioned above. The prosecution also examined AS1 Haji Muhammad Iftikhar. He arrested the co-accused Ghulam Nabi.
4. The appellant in his statement recorded under section 342, Cr.P.C., denied all the allegations of the prosecution. In his further statement, he stated as under:-- "I am innocent. The case is false. Co-accused are not related to me. About 4/5 months prior to this case, the fighting had taken place between us and PW LNK-Siddiq and Abdul Ghafoor his brother- in-law and the cases were also registered against both the parties, which were challaned in the Court of Judicial Magistrate, Thatta. The said criminal cases were pending in the Court of Judicial Magistrate at the time this case was registered against us. PW LNK Siddiq was in CIA when the instant case was registered against us. We were pressurized by PW LNK. Siddiq and complainant Abdul Latif Pirzada to withdraw from the cases pending against PW LNK. Siddiq and others. On our refusal we were falsely involved in this case. On day of incident at about 9 a.m. Complainant had come at Chillya Suzuki stand, Thatta, where I was performing my duty as Starter. I was asked by complainant to give him Suzuki free of fare for his use on that day but I refused to do so.
Complainant became annoyed and I was taken from Chillya Suzuki stand in presence of Nazir Leghaii, Gul Hassan, Mirbahar and others to CIA Centre, Thatta and the case property was foisted upon me. This false case was registered against us on account of enmity as stated above. Nothing was recovered from my possession."
5. The appellant did not examine himself on oath but examined D.W. Nazeer Ahmed in his defence.
His evidence reveals that he had a Grocery Shop at Suzuki stand, where the appellant was working as a Starter. He deposed that about fifteen months back at 9.15 a.m. The appellant Haji was present at Suzuki stand. The appellant and D.W. GuI Hassan were present in his shop when CIA police came there and there were exchange of hot words between the appellant and CIA police. Thereafter, the police went away. After 45 minutes, he noticed that so many persons gathered at the Suzuki stand.
He went there and saw the police taking away the appellant. Nothing was secured from the possession of the appellant. He was cross-examined by the learned District Attorney in which three questions were asked from him with regard to the ownership of the shop, to which he replied that the shop was owned by him. Second question was about his friendship with the appellant, to which he denied and third question was with regard that he was deposing falsely to which he replied in negative.
6. After considering the material available on the record and hearing parties' counsel the learned trial Judge convicted the appellant, as mentioned above, and acquitted the co-accused, under the impugned judgment. The appellant was dissatisfied with the said judgment, therefore, he has preferred the present Appeal.
7. The appellant has stated that he has been falsely involved in this case because of the enmity with PW-Muhammad Siddique; that there was fight between Ghafoor Khaskheli brother-in-law of.
PW-Muhammad Siddique and the appellant and a case was challaned which was pending in the Court of Judicial Magistrate, Thatta; that the PW Muhammad Siddique was involved in a murder case, in which his father was witness against him; that the complainant and P.W. Muhammad Siddique had pressurized him to withdraw the cases but he refused; that on the day of incident the complainant asked him to provide a Suzuki vehicle free of charges but he refused therefore, he has been involved in this case.
8. The learned AAG has stated that the prosecution have examined two witnesses, viz. Complainant and Mashir Muhammad Siddique; that they have fully supported the prosecution case and involved the appellant in the commission of this crime, therefore, the case has been proved against him. He has further stated that the enmity suggested by the appellant, no doubt, has been admitted by the P.W.-Muhammad Siddique but that will not affect the prosecution case. He has, supported the impugned judgment.
9. We have given due consideration to the arguments, gone through the evidence with the help of learned A.A.-G. And found that the case is based upon the evidence of Mashir LNK Muhammad Siddique and complainant Inspector Abdul Latif. They both have supported the prosecution case and stated that 500 grams of Charas were secured from the possession of the appellant. The PW- Muhammad Siddique in the cross-examination admitted that before the incident,: a fight took place between his brother-in-law and the accused and the case was pending in the Court of Judicial Magistrate. He also admitted that he was challaned in a case under section 302, P.P.C. In which the father of the appellant was a witness against him, but the matter was compromised.
10. From the above admission of the Mashir LNK. Muhammad Siddique, it is clear that before the institution of present case, there was recorded enmity between the appellant and the Mashir LNK- Muhammad Siddique. The appellant has also alleged that the complainant was taking the side of P.W. Muhammad Siddique as he also pressurized him to withdraw the case and that there was exchange of harsh words between him and the complainant over the affair of a Suzuki vehicle. In a situation like this, the evidence of police officers requires strong and independent corroboration before the same can be relied upon for convicting their enemy.
11. The case of the appellant is that he has been involved in this case because of the said enmity.
He took the plea at earliest opportunity. The P.W.-Muhammad Siddique admitted such enmity. The appellant further stated in his statement recorded under section 342, Cr. P. C. That on the day of the incident the complainant came to the Suzuki stand and he asked for a Suzuki vehicle free of charges but the same was not given therefore he was arrested from the Suzuki stand, where he was working as a Starter and then involved in this case. In his support, he examined D.W. Nazeer Ahmed, who fully supported the case of the appellant in his statement. A summary of his evidence is mentioned in the earlier part of the judgment. The D.W. Nazeer Ahmed was cross-examined by the learned District Attorney but except the above mentioned three questions no other question was asked from the witness denying his statement made in the examination-in-chief. It is well- settled principle of law that if any piece of evidence is deposed in examination-in-chief and the same is not denied by the other side in the-cross-examination then it is presumed that the said piece of evidence is accepted to be true by the other side. In the present case the witness Nazeer Ahmed had specifically alleged that the appellant was arrested from the Suzuki stand and before that there was exchange of hot words between the appellant and the C.I.A. Police. The prosecution in the cross-examination did not challenge the said pieces of evidence. Thus, the defence taken by the appellant has been fully supported and corroborated by D.W. Nazeer Ahmed.
12. Thus, the case of the prosecution rests upon the evidence of two police officials who have enmity with the appellant therefore, their evidence requires independent and strong corroboration as already observed. In this case, the police party was patrolling in a private Suzuki vehicle, which was driven by a private person namely Juman Bhambhro. He was available at the time of alleged recovery. However, it is surprising to note that he was not associated with the recovery or made a Mashir in this case. We are aware of the fact that the requirements of section 103, Cr.P.C. Are not applicable in the present case by virtue of section 25 of Act 1997. But when the P. Ws have enmity with the appellant then the police should have been fair with him in making Juman Bhambhro as Mashir in this case who was not only private and independent person but at the same time available at the place of incident. Thus, on the point of recovery the evidence of police officials, who have enmity with the appellant, is neither supported nor corroborated by any strong and independent evidence. Both the police officials have cause and motive to implicate the appellant in the case. Thus, their actions were based on mala fide that cannot be condoned or regularized by relying upon their evidence without any strong and independent corroboration.
13. It has been held in a case of Jamal Shah v. State (1997 SCM R 1494) that in absence of any mala fide or motive for false charge reliance can be placed on the statement of official witnesses. It has further been held in a case of Muhammad Naeem v. State (1992 SCM R 1617) that it is now well settled that police officials are as good witnesses as any other citizen and unless any mala fide is established against them, their deposition cannot be brushed aside simply on the bald allegation that they belong to the police department. In the present case, the appellant has not only alleged enmity between him and the police officials but the same has been proved through the evidence available on the record. In fact, the enmity has been admitted by the Mashir LNK. Muhammad Siddique. Therefore, their evidence cannot be safely relied upon as they have motive to falsely charge the appellant. In the circumstances of the case, possibility of false implication of the appellant cannot be ruled out.
14. 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 the benefit of doubt, which was accordingly given to him at the time of passing short order.
15. Above are the reasons of our short order dated 12-11-2003, by which we had allowed the Appeal, in the following manner:- "For reasons to be recorded separately, the appeal is allowed and the judgment of the trial Court is set aside. The appellant is present in person, his bail bonds are cancelled and the surety is discharged."