' RAHMAT HUSSAIN JAFFERI, J.--The present appeal is directed against the judgment, dated 2-6- 2003 passed by Special Judge Control of . Naroctic Substances, Hyderabad in Special Case No,72 of 1998 (Stave v. Ismail and another) arising out of F.I.R. No, 313 of 1998 of Police Station Excise Crime Branch, Hyderabad. Under the impugned Judgment the learned Judge convicted the appellants under section 9 (c), Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act, 1997") and sentenced each of them to suffer imprisonment for life and fine of Rs,1,00,000 or in default thereof to, suffer R.I. For 6 months more, with benefit of section 382-B, Cr.P.C.
2. Brief facts giving rise to the present appeal are that on 23-7-1998, the complainant Zaheer Hussain Shah, Assistant Lxcise and Taxation Officer, along with his subordinate staff was on patrolling duty. At about 2-30 p.m. They stopped a Toyota Pick-up bearing Registration No, PRG- 5245 near Fateh Chowk Tando Muhammad Khan Road, in which the appellants were sitting. The appellants were suspected, therefore, personal search of the appellant Ismail was conducted who was sitting on the driving seat. From his search, one slab weighing 1 kg. Of Charas was secured from folds of his Shalwar. Cash of Rs,200 was also secured from his possession. From the personal search of the appellant, Refiq-uz-Zaman only cash of Rs,120 was secured. The Toyota Pick-up was searched. A nylone bag containing 32 slabs weighing 1 kg. Each of Charas was secured which was lying behind The driver's seat. The slab of Charas secured from the folds of the Shalwar of appellant Ismail and one slab of Charas from the nylon bag were sealed as sample for sending them to Chemical Analyser for examination and report. Whereas the remaining 31 slabs were sealed in the nylon bag. The appellants were arrested and such Mashirnama was prepared. The appellants and the property were brought to the police station where the F.I.R. Was lodged. After usual investigation and receipt of report from Chemical Analyser, which was in positive, the appellants were challaned in Court.
3. On 12-2-1999, a charge under section 9(c) of Act, 1997 was framed against the appellants but they pleaded not guilty. In support of the case, the prosecution examined P.W.1 complainant Syed Zaheer Hussain Shah who produced the Chemical Analyser report and Mashir, Excise Constable, Anwar Ali. They both supported the case by giving the same facts as mentioned above.
4. The appellants in their statement recorded under section 342, Cr.P.C. Denied all allegations of the prosecution. The appellant Ismail in his further statement stated as under:-- "Sir. I am General Secretary of Welfare Tanzeem and 1 used to object for the den of narcotic which annoyed the narcotic dealers as well as area police and they got me falsely implicated in this case. I am. Innocent. Prior to my arrest, I had not only complained against the narcotic den to higher authorities but also got published many articles in newspapers and that is the reason why I have been falsely implicated in this case."
5. Appellant Rafiq-uz-Zaman in his further statement stated as under:-- "My father has expired on 18-6-1998. I alongwith the co-accused on 23-7-1998 went to Tando Allahyar for purchase of an animal for the Chehlum of my father and while returning from there near Silver Cotton Mill, I and co-accused were unnecessarily arrested by the Excise Police and got implicated in this case. My mother approached Government of Sindh through an application, photocopy of which I produce as Exh.16-A alongwith the marginal note of Commissioner, Hyderabad Division and thorough enquiry was conducted on the complaint of my mother whereby I and the co-accused were exonerated and the Government had decided for withdrawal of the case against me but the Excise Police decided to contest the matter by engaging a lawyer and therefore, why we are before this Court. I am innocent."
6. The appellant Ismail examined himself on oath in which he disclosed the same facts as stated by him in his statement. He produced various documents including the judicial enquiry report conducted by the then SDM in his support. The appellant Rafiq-uz-Zaman did not examine himself on oath. Both the appellants did not examine any witness in their defence.
7. After considering the material available on the record and hearing the parties' counsel, the learned trial Judge convicted the appellants as mentioned above under impugned judgment, hence the present appeal.
8. We have heard the Advocate for the appellants, State Counsel and perused the record of this case very carefully.
9. The learned Advocate for the appellants has stated that the sample prepared at the place of incident and the sample received by the Chemical Analyser are different from each other that the remaining property produced in the Court is also not the same property which was secured at the place of incident, as such the oral evidence has not been supported by the property produced in the case.
10. On the other hand, the learned State Counsel has stated that the case is based upon the evidence of complainant and Mashir; that they have fully supported the prosecution case; that the sample sent to the Chemical Analyser and the property produced in the Court are the same which were secured and sealed at the place of incident, and that the prosecution have proved the case against the appellants.
11. We have given due consideration to the arguments and examined the evidence of the witnesses.
We found that the case rests upon the evidence of complainant P.W.1. Mashir P.W.2. Chemicals Analyser Report and property produced in the Court. The evidence of P.Ws. Reveal that on the date, time and place of the incident the Toyota Pick-up of the appellant was stopped. From the search of appellant Ismail one slab weighing 1 Kg. Of Charas was secured from the folds of his Shalwar and from the search of vehicle 32 slabs weighing 1 Kg. Each of Charas lying in a nylon bag were secured. The slab secured from the possession of appellant Ismail and a slab from nylon bag were sent to Chemical Analyser for examination and report in two packets. The report of the Chemical Analyser Exh. 16 shows that two packets contained three slabs.
12. A perusal of Chemical Analyser report reveals that he received two packets for examination and report, out of them one packet contained one slab of Charas whereas the second packet contained two slabs of Charas. The P.W.1 was confronted with the above position to which he replied that he sent only two slabs to the Chemical Analyser. He further added that the Chemical Analyser had wrongly written that he received three slabs. The property was shown to P.W.2 to which, initially, he replied that the packets contained 2 slabs. He was further confronted with the contents of the packets received back from the Chemical Analyser by pointing out that one slab bore golden words as "MZ 007". He replied that he did not remember as to whether the same words Were written on the slab sent to Chemical Analyser. He further deposed that he could not say which of the slabs were recovered from which accused. He further added that he could not say as to which of the two slabs out of three slabs lying in the Court were sent to Chemical Analyser for examination and report. From the above position, it appears that the property received by the Chemical Analyser was a different property from the property sealed as sample at the place of incident. The prosecution has not been able to explain the above-mentioned discrepancy in the evidence and the Chemical Analyser report. However, a doubt has been created in the above mentioned property.
13. As regards the property lying in the nylon bag, both the witnesses are unanimous that 31 slabs were sealed in the nylon bag. The said nylon bag was not shown to the complainant during the course of his examination as he was shown only two packets which were sent to Chemical Analyser as Articles 1 and 2. As such no question was put to this witness about the said property.
Thus, he did not identify the nylon bag to be the same property, which was secured from the pick- up and sealed at the place of incident. As regards Mashir P.W.2, when his statement was recorded nylon bag was available in the Court. He stated that all the 31 slabs were sealed in a fibber bag of blue colour. The slabs were not packed in the wrappers bearing print "BI-FI Mini Salami Garlic of ANIN Cappuccino 10 parcel". He further stated that at the time of recovery of the property, apart from the Mashirnama he signed on the papers in which the slabs were wrapped and also put his signature on a small chit on the polythene bag. The property lying in the bag was opened in the Court. Two observations of the trial Court are as under:-- "Note.---On examination the bag and the contents containing 32 slabs of Charas, no note Purchee has been found except the tag attached by the cr. Clerk of the Court."
"Note.--- Most of the wrappers of the packets are torn. Eight open packets by opening is meant that the printed wrapping nylon paper, two individual slabs each wrapped in nylon (totalling sixteen), in all sixteen and the remaining most of the opened once wrappers containing the Charas which has an inside wrapping of polythene paper are single slab."
14. Thus, the slabs lying in the nylon bag were more than 31 slabs as claimed by both witnesses. The P.W.2 claimed that a note or Purchee was put in the bag but on opening the bag in the Court no note or Purchee was available in it. It is further pointed out that on opening the bag in the Court 32 slabs of Charas were found in it. Whereas the case of the prosecution is that the bag contained 31 slabs as one slab of Charas was sent to Chemical Analyser. If one slab was taken out from the bag at the time of recovery then how 32 slabs were found in the bag when it was opened in the Court.
The prosecution have not explained this discrepancy in the oral evidence and property lying in the Court. As such the property produced in the Court in the nylon bag appears to be not the same property that was secured from the pick-up and sealed at the place of incident. This has also created doubt in the prosecution story, Chemical Analyser Report about the alleged sample taken out from the bag and veracity of the witnesses. Thus, the oral evidence has been falsified by the property produced in the Court. In such a situation, it is very unsafe to rely upon the oral evidence.
15. After considering the material available on the record, we are of the considered view that the prosecution have failed to prove the case against the appellants beyond any reasonable doubt, therefore, they are entitled for benefit of doubt.
16. In the short order the number of Toyota Pick-up has been shown as PQR5245 but in fact it is PRG-5245 as clear from the Mashirnama of recovery and F.I.R. As such, a typographical mistake has occurred in the short order while mentioning the number of the Toyota Pick-up which is corrected and be read as PRG-5245.
17. Above are the reasons of our short order, dated 19-11-2003 by which we had disposed of the appeal in the following manner: "--for the reasons to be recorded separately, we allow this appeal and set aside the conviction and sentence. The appellant may be set forthwith at liberty if not required in any other custody matter.
The order of confiscation of Toyota Pick-up being Registration No,PQR-5245, passed by the trial Court is also set aside. The same may be returned to the owner thereof under valid documents."