2001 P Cr (PLP)

FAIZ MUHAMMAD QURESHI, J.‑‑‑ The present appellant has called in question the impugned judgment, dated 11‑9‑2000 passed by the learned Sessions Judge and Special Judge for Control of Narcotic Substances, Larkana whereby the appellant has been found guilty for the charge of offence punishable under section 9(b), Control of Narcotic Substances Act, 1997 and has been convicted and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.5,

000. In case of default the appellant to suffer simple imprisonment for two months more for the charge of above offence. Hence this appeal. The facts of the prosecution as contained in the F.I.R. No.2 of 1999 under section 9, Control of Narcotic Substances Act, 1997, lodged by Assistant Excise and Taxation Officer namely Sadaruddin Pechuho at Excise Office, Larkana are that on the day of incident complainant alongwith his subordinate staff namely Excise Inspector Deedar Ali Mirani and E.O. Muhammad Ibrahim, Excise Constables namely Muhammad Bux, Azizullah Bhutto, Riaz Ali, Jaffar Raza Shah; and Ayaz Ali, vide Roznamcha Entry No. 1 left their office on receipt of spy information. They proceeded towards their pointed place i.e. house of appellant Ashique Hussain Leghari situated in Cattle Colony, Larkana. It is the case of prosecution that as soon as the complainant party reached the place of occurrence they found the appellant standing there. On confrontation, he tried to decamp but he was apprehended there. He disclosed his name Ashiq Hussain Leghari. His personal search was conducted whereupon 435 grams of Cannabis was recovered from the fold of his loin cloth and N.I. Card from the pocket of his shirt. Thereafter, 225 grams of Cannabis was sealed at the spot for Chemical Analysis and appellant was arrested in presence of Mashirs. Thereafter, he was brought at the Excise Office, Larkana where such case was registered. After usual investigation appellant was challaned in the Court of learned Sessions Judge and Special Judge for Control of Narcotic Substances, Larkana. On 8‑6‑2000 charge was framed against the appellant as Exh.2 and plea recorded as Exh.3 to which he pleaded not guilty and claimed his trial. During the trial, prosecution examined two witnesses namely complainant AETO Sadaruddin Pechuho as Exh.7 who produced Mashirnama of recovery as Exh.7‑A and F.I.R. as Exh.7‑B and Report of Chemical Examiner as Exh.7‑C. P.W./E.C. Azizullah Bhutto was examined as Exh.8. Learned District Attorney closed prosecution side as Exh.9. Statement of appellant under section 342, Cr.P.C. was recorded as Exh.10 wherein he denied the case of prosecution. The learned trial Court formulated the following point for determination: Point No. 1 .‑‑‑ Whether on 22‑12‑1999 at about 3‑00 p.m. near his house situated in Muhalla Bhains Colony, Larkana, accused, Ashique Hussain Leghari was found in possession of 435 grams Charas as alleged by the prosecution?" After having gone through the evidence adduced by the prosecution and the material available on record the learned trial Judge passed the judgment in above terms. Learned counsel for the appellant Mr. Khalid Iqbal Memon has argued that the recovery has been effected from the possession of the appellant and Cannabis 435 grams on 22‑12‑1999 at 3‑00 p.m. in presence of Mashirs namely and respectively Excise Constable Azizullah and Excise Inspector Deedar Ali and out of 435 grams only 225 grams of Cannabis has been sent to Expert on 24‑12‑1999 and there is no suggesting evidence available with prosecution as to what happened to the rest of the quantity of the Cannabis and prosecution has caused dent in its own case and in such circumstances, benefit of doubt goes to the appellant. Mr. Khalid Iqbal Memon has further invited our attention on the fact that although Entry No. 1 has been shown in F.I.R. dated 22‑12‑1999 by the complainant and yet neither the complainant has deposed before the trial Court that by virtue of Entry No. 1, dated 22‑12‑1999 complainant at party set out for patrol from their office nor the same has been produced by the prosecution before the trial Court and according to Mr. Memon non‑production of such genuine document cuts the root of prosecution case. He has placed reliance on 1997 MLD 1632 and 1998 PCr.LJ 1368. Mr. Memon has further drawn our attention on the very material aspect of the case that F.I.R., Mashirnama, statements under section 161, Cr.P.C. have been written by co Mashir Excise Inspector namely Deedar Ali Mirani on the dictation of AETO complainant and who has been not examined by the prosecution, and we have seen the cross‑examination of AETO complainant who has admitted before the trial Court that the F.I.R. was written by Deedar Ali under his dictation, 161, Cr.P.C. statements and Mashirnama were also written by Excise Inspector Deedar Ali. He has further argued with vehemence that it is startling to observe that such material witness has not been examined by the prosecution who has written F.I.R., contents of Mashirnama and the statements of the witnesses under section 161, Cr.P.C. and he has been given up by the prosecution without assigning any reasons and according to Mr. Menton had he been examined by the prosecution he would have not supported the case of prosecution and has placed reliance on 1996 SCMR 167 wherein the Honourable Supreme Court has held that the material witness Mashir given up by the prosecution and no reasons have been assigned except that two Mashirs cannot be examined simultaneously on the same point is no plausible explanation being furnished by the prosecution Honourable Supreme Court has held that had he been examined by the prosecution, certainly he would not have supported the prosecution case. In the present case, the material Mashir namely Excise Inspector Deedar Ali Mirani has not been examined by the prosecution and has caused dent in the version of the prosecution case. According to Mr. Khalid Iqbal, the co Mashir who has been examined has also confirmed that the F.I.R., Mashirnama and 161, Cr.P.C. statements were written by Deedar Ali, Excise Inspector. On the other hand, Mr. Gul Hassan Solangi, for the State has not supported the impugned judgment and has supported the contentions raised by learned counsel for the appellant. We have considered the arguments rendered by learned counsel for the parties and have gone through the material available on the record and the evidence adduced by the prosecution. Admittedly, the complainant has mentioned in F.I.R. the number of Entry i.e. No.1, dated 22‑12‑1999 and yet such document has not been produced before the trial Court and we are fortified by the law on this point cited by learned counsel for the appellant. Admittedly 435 grams of Cannabis has been recovered from the possession of appellant and out of 435 grams, 225 grams has been separated by the complainant party and the same has been dispatched to the Expert on 24‑12‑1999 and there is no explanation whatsoever with regard to the rest of the quantity and what happened to the rest of the quantity of Cannabis which is not clear from the record and in that event the benefit of doubt goes to the appellant. We have also examined the evidence of complainant who has admitted in cross‑examination that F.I.R. has been written on his dictation by Excise Inspector Deedar Ali Mirani and the statements under section 161, Cr.P.C. have been written by same Mashir and yet the prosecution has failed to get examined the material Mashir who has written the F.I.R. Mashirnama and statements of the witnesses and no reasons have been assigned by the prosecution as to why he has been given up. The only reason is being assigned that co‑Mashir namely Azizullah has been examined, therefore, it was not necessary on the part of prosecution to examine the aforenamed Deedar Ali co‑Mashir Excise Inspector. The point is that such material Mashir who has done every thing with regard to the investigation and has been given up by the prosecution and no reasons have been assigned by the prosecution except that co‑Mashir Azizullah has already been examined is not satisfactory reply being furnished by the prosecution. We are constrained to hold that had he been examined by the prosecution, he would have certainly not supported the prosecution case and we are being fortified by the authority reported in 1996 SCMR

167. Upshot of the above discussion is that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. We accordingly set aside the impugned judgment and in result the appeal is allowed. Appellant shall be released forthwith if not wanted in other crime. H.B.T./A-153/K Appeal allowed.