1995 P Cr (PLP)

(1) We were on foot during patrolling. (1) We were on Government vehicle. (2) I have asked the private persons to act as Mashir but they refused. (2) The A.S.I.P. did not ask any private person to act as Mashir. (3) First I caught hold the accused. (3) P.C. Rustam first caught hold the accused. He has further stated that only three grams out of 11 grams of heroin have been separated for the purpose of chemical examination and that too have been sent after three months, and 20 days to the Chemical Examiner's Laboratory after its recovery, as such, no reliance can be placed on the report of Chemical Examiner as its evidentiary value has minimized. Learned counsel has also argued that as per statement of P.W. Habibullah Shah Mashir, the property was weighed at Police Station, Mashirnama was also signed at the police station and that property was also sealed at police station, therefore, this alleged recovery of heroin and the preparation of Mashirnama etc. has got no value in the eyes of law. He, therefore, prays that the conviction and sentenced passed against the appellant be set aside and appeal may kindly be allowed. Mr. Yar Muhammad Abbasi, Advocate appearing on behalf of AA.-G. has conceded to the submissions made by learned counsel for appellant and did not support the conviction and sentence passed against the appellant. I have gone through the impugned judgment, the depositions of witnesses examined by the trial Court, Chemical Examiner's report and other relevant documents and have come to the conclusion that learned trial Court has not appreciated the contradictions, infirmities and the belated sending of three grams of heroin separated for the purpose of chemical examination to the Chemical Examiner's Laboratory. According to case of prosecution, A.S.I. Abdul Rashid had received spy information with regard to the selling of heroin at Abri Wah near Shaikh Zaid Hospital, Larkana, even then he did not bother to collect any private person to act as Mashir. The trial Court has held in its, judgment that evidence of police officials "is as good as of any other witness, but that is in different circumstances. In this case, this recovery from appellant is said to have taken place at 11-30 a.m. which is the day time and-presence of private person cannot be ignored, specially when the place of recovery is located in a thickly populated area of Larkana Town. As per deposition of P.W. Habibullah Shah, the property was not only weighed and sealed at police station but the Mashirnama was also signed by him at police Station. This piece of evidence shakens the entire evidence and brings the case within the ambit of benefit of doubt. Admittedly as per Chemical Examiner's report, three grams of heroin were despatched on 25-8-1991 for the purpose of chemical examination which is after a period of about three months and 20 days and no explanation has been given for this belated sending of the I property. So it cannot be said as to what had happened with this property during the period of three months and 20 days while the same, according to the deposition of A.S.I. Abdul Rasheed, was lying in Malkhana. Learned State counsel has also conceded and has not supported the judgment, therefore, taking into consideration the above reasons, I find that this is a clear case where benefit of doubt is made out. As such, the conviction and sentence passed against the appellant is not maintainable, same is set aside and appeal is allowed. Since the sentence of appellant was suspended during the pendency of appeal and he was released on bail as such, his bail bond stands cancelled and surety discharged. These are the reasons of my short order dated 7-5-1995, N.H.Q./M-2104/K Appeal allowed.