1997 P Cr (PLP)

P.W.2 Muhammad Basharat Kiani, A.S.I. as investigating Officer of the case. P.W.3 Sanaullah Khan, A.S.-I. who had kept the sample of seized material in custody. P. W.4 Khalid Zaman (L.H.C.) who had taken the parcel of sample to the office of the Chemical Examiner, and P.W.5 Muhammad Shabbir, A.S.-I. who had incorporated the Murasila into the F.I.R. The second Mashir namely Bakhat Yar was dropped. From this list of witnesses it is evident that the case of prosecution rests upon the evidence of P.W.1 namely Hameedullah and the Investigating Officer/P.W.2 namely Muhammad Basharat Kiani. Both these witnesses were examined on 19-7-1995. The learned trial Judge, thus on the strength of their evidence convicted the appellant and sentenced him to suffer R.I. for four years, 20 stripes and to pay fine of Rs.10,000 (in default thereof 3 months' R.I.). Hence this appeal. 3 The learned counsel for the appellant assailed the impugned judgment on several grounds but mainly stressed upon the contradictions in the statements of the P.Ws. He also urged that the prosecution dropped the second Mashir of recovery and, therefore., an inference can be drawn that the said Mashir was either a fake Mashir or he was not ready to support the prosecution case. It was also alleged that main accused were not arrested Sgt the police and they were let to go after the police party was bribed. On the other hand the learned counsel for the State contended that the so-called contradictions were of least importance because they had no bearing on the main part of the prosecution case to shatter its foundation. The learned counsel also drew my attention to the huge quantity of Charas, which could not be arranged by the police to falsely implicate the appellant.

4. No doubt that the contradictions pointed out by the learned counsel for the appellant are of no importance to shatter the foundation of the case but the Court cannot keep its eyes closed regarding certain important and glaring aspects of the case. For example the Investigating Officer of the case could easily find out the ownership of the tanker involved in this case to find out the actual persons behind this transportation. The investigation was kept silent on this important issue. Even the Registration Book of the truck was not brought to light, rather it was suppressed, so that the ownership of the truck be kept hidden. Such an act leaves no other impression except to believe that certain accused were given cover by the police. It is unbelievable that only one person was driving a tanker with such huge quantity of Charas without any conductor or helper and with only Rs.2,000 in his pocket. But at the same time I cannot believe that the accused/appellant was innocent. He appears to be an employee or a small fish of a big gang involved in the transportation of narcotics. It cannot be believed that he had come from Ziarat of a shrine and was falsely implicated by the police at about 2300 during night hours. His own stand that main accused were let to go proves his presence at the spot as well as his knowledge about the main accused persons. However, the most alarming aspect of this case is non-production of the seized material in the Court as admitted by P.W.l Hameedullah. Regarding this aspect of the case the learned trial Judge observed that:-- "P. W. 1 did not state that the narcotics was not present in the Court. He just mentioned about the absence of certain bags. If there was any confusion about this fact, the accused could have requested the Court to verify the fact whether the alleged narcotics was present in the Court or not but no such request was made." These observations of the learned trial Court have no sound foundation at all. It is not the duty of the accused to make such request particularly after asking specific question on that point. It is the duty of the Court to verify whether the incriminating material has been produced in the Court by the prosecution or not. The Court cannot convict any accused merely on the statements of the witnesses without production of the incriminating material. This point can be explained with the help of an example. Suppose an accused is being tried by a Court under section 13-D of the Arms Ordinance under the charge that he was having a pistol without licence. It is possible for the prosecution to produce more than hundred witnesses who might have said that one pistol had been recovered by the police from the accused but if the prosecution fails to produce the pistol then the said accused cannot be convicted on the ground that more than hundred witnesses had given evidence in support of the prosecution version and the accused had not requested the Court for the production of that pistol. Same is the position in this case. The evidence of P. W.1 on this point runs as under:-- This statement leaves no doubt that the seized material was not produced in the Court. If it is believed that some of the bags were not produced as presumed by the learned trial Court even then it was necessary to mention the number of bags and their weights separately so that the defence could ask the witness where the other bags had gone. If certain bags were missing, then it was necessary for the-Court to inform the higher authorities about this fact so that the missing bags could not be used by the police against innocent persons. I am, therefore, unable to embrace the observations made by the trial Court regarding recovery of the huge quantity of Charas. In such circumstances the recovery of Charas would be treated to have been proved to the extent of that quantity which was sent to the Chemical Examiner i.e. 5 Kgs. only. Similarly giving up second Mashir of recovery by the prosecution can be ignored if the said Mashir had been a public Mashir and was not traceable. But when both Mashirs are from the same police party and are police official too then giving up the second Mashir was not proper.

5. Upshot of the above discussion is that the prosecution has proved its case to the extent of recovery of Charas weighing only 5 Kgs. instead of proving recovery of huge quantity of Charas as alleged against the appellant. I, therefore, consider it proper to modify the sentences of the appellant as under: (a) Sentence of imprisonment is reduced from 4 years to 2 years and six months; (b) Sentence of whipping is dropped; and (c) Sentence of fine is reduced from Rs.10,000 to Rs.5,000 (in default thereof 3 months' S.I.). The appellant would be entitled to the benefit of section 382-B, Cr.P.C: also With these modifications in the sentences, the appeal is dismissed N.H.Q./1067/FSC Sentence reduced