1994 P Cr (PLP)

Sardar Muhammad Ishaque for Appellant. Zaheer Ahmad Oureshi for the State. Date of hearing: 3rd January, 1994. This appeal is directed against the judgment, dated 22nd of November, 1993, passed by the learned Sessions Judge, Hyderabad, whereby the appellant was convicted for offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to suffer R.I. for 10 years and fine of Rs.20,000 in default to suffer R.I. for one year more.

2. It is case of the prosecution that on spy information Shah Mardan Shah the complainant and Investigating Officer of the case on 11th of May, 1987 at about 1-40 p.m. apprehended the appellant who according to the F.I.R., was standing inside his house. From his personal search heroin powder was recovered. He then led to recovery of heroin from an iron cupboard from a room of his house. Inventory in respect of the same was prepared by complainant Shah Mardan Shah. The samples taken from the lot were sent for examination to the expert whose report is in positive. However, before the trial Court only Shah Mardan Shah was examined. The other witnesses attesting the Mashirnama were not examined. The challan submitted by the police contains names of Hameed son of Muhammad Ramzan, resident of Tando Adam and Fatch Muhammad son of Muhammad Khan, resident of Hyderabad. Besides it contains names of Sohrab Khan Baloch, A.E.T.O. Abdul Sattar Khokhar Excise Inspector and Ghulam Mustafa, Excise Constable as witnesses. The report of the process-server P.W. Muhammad Bachal shows that witnesses Hameed and Fateh Muhammad did not reside at the addresses given by the prosecution. His such statement is based on the examination of some witnesses named in the enclosures. The learned trial Court has relied on evidence of witness Shah Mardan Shah only. The prosecution slid not bother to examine any other witnesses shown in the reserve list to corroborate statement of witness Shah Mardan Shah particularly when the two witnesses from public were not traceable. However, it is not mandatory for the prosecution to examine all witnesses listed in the challan, but necessity arose in this case when the main witnesses of recovery were not available at their given addresses and the report was that they did not live there at all. It creates a serious doubt in my mind. If such two witnesses existed or not? Fictitious names seem to have been incorporated in the Mashirnama. The question arises as to why the other witnesses were not examined by the prosecution? The prosecution has indeed been conducted in a slipshod manner. The benefit thereof has to be extended in favour of the appellant. Besides there is material contradiction in the F.I.R. and the evidence of complainant Shah Mardan Shah recorded before the trial Court. In F.I.R. it is said that the appellant was standing inside his house whereas before the trial Court it has been said that he was apprehended from outside his house. The contradiction seems to be material in absence of any further corroboration. Besides the learned trial Court had not bothered to give chance to the appellant to cross-examine process-server. These are the lacunas which could not be explained by the prosecution. However, many other grounds supported by authorities were referred to before me by the learned counsel for the appellant but discussion thereon is not necessary.

3. On the grounds shows hereinabove I am inclined to accept the appeal, set aside the conviction and sentences of the appellant recorded against him by the learned Sessions Judge, Hyderabad, on 22nd November, 1993. He stands acquitted of the charge. He be set at liberty if not required in any other case. N.H.Q./860/FSC Appeal accepted.