1990 P Cr (PLP)

FIDA MUHAMMAD KHAN, J: ‑‑ Muhammad Amin son of Safdar Khan, resident of Gali No.3. Bukhari Colony, Banaras Chowk, Orangi Town, Karachi confined at Central Prison, Karachi has filed this appeal against the judgment, dated 9‑10‑1988 passed by learned Sessions Judge, Karachi West, vide which he was convicted and sentenced under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) to suffer 15 years' R.I. with a fine of Rs.10 000 (Rupees ten thousand) or in default thereof to further undergo six months' R.I. He was also sentenced to "01"pping numbering ten stripes. Briefly stated the facts of the case according to the F.I.R. (Exh.15) are that on 3‑10‑1987, Mazhar Hussain Minhas, Inspector (P.W.4), Excise Special Branch, received spy information that one person would be giving delivery of heroin in Ali Garh Colony, Aurangi Town, Karachi. He alongwith his Incharge Malik Muhammad Hayat A.E.T.O. and other subordinates proceeded to the place of occurrence and also took two Mashirs. The party reached the spot and found the appellant standing near Chowrangi in doubtful condition with the cloth bag (Article `A') in his right hand. After introduction he searched the appellant and recovered Rs.55 from front pocket of his shirt. Then the bag was opened and two bags (Articles `B' and `C') containing 2 Kg. heroin were recovered. Twenty grams from each of them were separated and sealed as sample (Article `D') for chemical analysis. The signatures of Mashirs were obtained and the appellant was arrested. The appellant alongwith case property was brought at police station and a case was registered under Article 3/4 of the said Order against him. After completion of the usual investigation, the appellant was challaned to face trial. At the trial prosecution examined four witnesses in support of his case. Nasir Hussain, P.W.1 who is a salesman in Phillip Company is a witness of Mashirnama Exh.9, dated 3‑10‑1987. He deposed that while he was getting puncture of motor‑cycle repaired in Aligarh Colony on 3‑10‑1987 at 3‑30 p.m. a police constable asked him to go to Police Officer who was standing at some distance in a vehicle. Accordingly he went to that Officer i.e. Mazhar Hussain who desired him to act as a witness in connection with search of a person. He agreed to act as a witness. Another witness of Mashirnama was already with the police party. He was taken by them to place near Chowrangi where the accused was found standing on the road. On his personal search a sum of Rs.55 was secured from his pocket. The accused was carrying cloth bag which while opened by the Inspector was found to have two cloth bags. They were also opened which were found containing heroin powder, one kilogram in each bag. In his presence samples were taken and were sealed on the spot. The two remaining bags were also sealed. He, however, could not tell whether the 20 grams of heroin powder was sealed in two separate packets or in only one. In his cross‑examination he said: "The place from where the accused was arrested is surrounded by shops, hotels, and is situated in thickly populated area. There were several hawkers standing with their push carts. There are houses all around the Chowrangi." He further stated: "During disturbance in the city I had once come in the car of Inspector Mazhar Hussain. I do not know the co‑Mashir. I cannot give the exact time of stay at the place of occurrence. I had only once visited the office of Special Branch Excise. My statement was recorded after two days in '' that office, I see the cloth bags which are new and readily available in the market." Muhammad Adil (P.W.2) is also witness to the same Mashirnama Exh.9. He stated in his examination‑in‑chief in last that from the personal search of the used Rs.50 or Rs.60 was recovered and his statement was recorded after two days in the Excise office. Muhammad Hanif, Excise Inspector (P.W.3) a member raiding party stated in his cross‑examination that he cannot say which of the to Mashirs was called first and his statement under section 161 Cr.P.C. was not recorded. He also deposed that the word `Khaki colour envelope' does not find place in the Mashirnama. Mazhar Hussain, Excise Inspector (P.W.4) is complainant and Investigating Officer. After completion of the necessary formalities he submitted complete challan against the appellant. The report of the Chemical Examiner (Exh.16) is positive and tendered in evidence in support of the prosecution case.

4. The appellant when examined under section 342, Cr.P.C. denied the allegations in toto and stated that he was falsely involved in this case. He replied in answer to question 'why the P.Ws. have deposed against you in the following words: "They are set up witnesses of the excise and have falsely deposed against me." The appellant also made statement on oath reproduced as under: "I do hawking on a Thaila in Aligarh Chowk Bazar Aurangi Town. On the day of incident police party came and picked me up and involved me falsely in this case. Nothing was recovered from my possession. 1 was arrested at 3‑00 p.m. on 3rd September 1987. I was kept under detention at the police station, without any formal arrest for about one month. After one month the present case was registered against me and I was challaned in this case on the basis of concocted and fabricated story. I am innocent."

5. We have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellant contended that the prosecution case was highly doubtful. He submitted that the statement of the P.Ws. Nasir Hussain and Muhammad Adil were taken under section 161, Cr.P.C. on 3rd September 1987. Since then he was continuously in custody and as such the alleged occurrence on 3rd October 1987 was not believable. Referring to the portion of report of the Chemical Examiner he submitted that it was on some other samples. He referred to the statements of P.W.2 and P.W.4 wherein they had confirmed that the samples were separately sealed and the memo was signed by them whereas the Chemical Examiner's report refers to a sample where only signatures of the Investigation Officer were written. According to the learned counsel it was clearly indicative of the fact that the report belonged to some other samples. The learned counsel also submitted that in the present case the Investigation Officer was himself the complainant and this was not in accordance with the legal requirement. However, being unable to substantiate this point by legal authority, he did not press it.

6. The learned counsel for the State supported the prosecution case. However, he was unable to explain the reasons how statements of the P.W.1 and P.W.2 under section 161, Cr.P.C. could be recorded on 3rd September 1987.

7. Though the submission of the learned counsel for the appellant regarding the credibility of Chemical Examiner's Report is not without weight, we feel that not mentioning of the signatures of the Mashirs on the memo could be due to sheer negligence. However, the contention about statements of P.Ws.1 and 2 under section 161, Cr.P.C. on 3rd September, 1987 i.e. one month before the alleged occurrence and recovery of heroin on 3rd October, 1987 from his possession do merit serious notice. On thoroughly checking the available record we have found that it is not a clerical mistake. Mazhar Hussain Minhas (P.W.4) who has investigated the case has confirmed it in his cross‑examination in the following words: "I recorded the statement of witnesses on third day of the incident." He deposed in the following words: "It is correct to suggest that neither in the F.I.R. nor in the Mashirnama I have mentioned about the polythene bag or the Khaki colour papers in which the heroin powder was wrapped and kept in cloth bag in Articles `A' and `B'. I did not think it necessary to mention in the F.I.R. that packets of samples were signed by the Mashirs." He also stated: "It is correct that the two small plastic packets of samples do ' of bear signatures of Mashirs. It is correct to suggest that I did not seal the two samples separately but had sealed the two plastic packets into one Khaki colour envelope marked as Article `D'. It is correct to suggest that I have not given in details the sealing or the two samples into Khaki colour envelope in Mashirnama and F.I.R." He further stated: "I cannot say as to how and under what circumstances the Chemical Examiner while mentioning the detail of sealed packet of Khaki colour envelope has only mentioned that it bears signature of Investigating Officer. He has not mentioned the signatures of the witnesses, on the envelope, It is correct that 161,‑ Cr.P.C. statement was recorded on 3‑9‑1987." These material contradictions alongwith the statements of P.Ws. having been recorded on 3‑9‑1987 i.e. before the alleged occurrence on 3‑10‑1987 while the A appellant was in police custody, have given rise to doubts. Thus, the prosecution has failed to prove its case beyond doubt.

8. In view of the reasons stated above we allow this appeal. The conviction and sentences passed against the appellant Muhammad Amin son of Safdar Khan n set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. Before parting with the case we would 'like to mention that the prosecution has miserably failed in its duty to the State as well as to the nation. Negligence in fulfilling the legal requirements and irresponsibility in attending to the details of the case has spoiled a case where a huge quantity of heroin i.e. two kg has been recovered. Ii is a pity that the well trained staff, of excise or police at times for reasons best known to them fail to do their duty properly and as such the real culprits remain unpunished. N.H.Q./501/f 14 Appeal accepted.