1998 P Cr (PLP)

To prove its case prosecution examined 5 witnesses. Appellants examined themselves on oath in their defence.

3. I have heard the learned counsel for appellants and Advocate‑General for State. The first contention of the counsel for appellant is that admittedly house of Mst. Hajiani Sakina was searched but in the said search prosecution has (''violated statutory requirements of sections 103 and 155(2), Cr.P.C. Reliance is placed, inter alia, on, 1993 PCr.LJ 936 to the extent of the case of appellant Allah Bux. Placentium B and C in the said judgment reads:‑‑ "Turning to the charge against appellant Shahadat it may be observed that at the instance of appellant Zahid his house was raided. Appellant Shahadat succeeded in running away from the Vardat. The contraband material was found in his absence. In presence of a number of police officials his running away from the Vardat appears to be dubious and doubtful. His false implication cannot be ruled out. Thus, the learned State Counsel candidly conceded that charge against this appellant has also not been proved beyond reasonable doubt. In the circumstances discussed above we are inclined to extend benefit of doubt in favour of both the appellants, accept their appeal, set aside their conviction Land sentences recorded by the learned Sessions Judge, Okara, on 4‑8‑1992 and acquit them of the charge. They be set at liberty forthwith if not required in any other case. " Favouring both the appellants, placentium A and B of citation 1995 PCr.LJ 142 reads:‑‑ "However, the complainant had not taken two respectable persons of the locality along with him for the search proceedings. Consequently he had violated the mandatory provisions of section 103, Cr.P.C. This was an illegality and had rendered the entire search proceedings invalid. Moreover, appellant Arshad Ali was not present at the spot at the time of occurrence and he could not be charged for being found in possession of any narcotics ... Consequently the appeal is accepted. The conviction and sentence of appellants Arshad Ali, Asad Ali and Amjad Ali sons of Rahat Ali Khan are set aside. They are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case." Consequently it is clear that the appellant's counsel is correct in this contention.

4. Then emerges a queer phenomenon of a Note in the end of the deposition of Qurban Ali Bhatti (P.W.5), complainant which reads:‑‑ "At this stage case property produced. I see Article A and say it is the case property its pertain to 278 of 1990. It is incorrect to say that we have implicated the accused person in this case at the instance of Baboo Dacoit. " It means that the case property produced in the Trial Court which pertained to 278/90. In the present case F.I.R. No. is 248 of 1990 and the number allotted by the Trial Court is Sessions Case No.352 of 1990. Report of the Chemical Examiner (Exh.18) indicates the report concerns Criminal Case No. 248 of 1990, Police Station Kalakot. It signifies that the case property produced in the Trail Court was that of a different case. Consequently, strong doubt is casted on the~ story of prosecution.

5. Another contention for appellant's is that in their statements under section 342, Cr.P.C. no specific question has been asked about raid on the house of Mst. Hajiani Sakina and recovery thereof. Question about reference of recovered narcotics to the chemist and report thereof is also missing. Resultantly, the appellants have been prejudiced as they were not given a chance to explain their position.

6. No cross was carried upon the statements on oath under section 340(2), Cr.P.C. and, therefore, the defence of the appellants holds ground. It is again an abnormal phenomenon that during the depositions of first 3 P.Ws. A.P.P./counsel for State has not conducted the examination‑in‑chief. Such examination has been conducted by A.P.P. for P.W.4 and again at the time of deposition of P.W.5, he is missing. This indicates the extent of interest state is taking in its own cases. One step further the matter goes, when appellant Taj Muhammad is deposing under section 340(2), Cr.P.C. and A.P.P. for State declines to cross although a chance is given to him by the Court. At the time of such deposition of appellant Allah Bux, A.P.P. seems to be absent. It appears that either A.P.P. is in collusion with the accused to spoil the State case or he is ignorant about the legal effects of such laxities. In any case, the prosecution has failed to prove its case beyond reasonable doubts. Consequently, the impugned judgment is set aside and appeal is allowed. Appellants may be released in easel not wanted in any other case.

8. A copy of this judgment may be sent to the Secretary Home and Secretary Law, Government of Sindh to take necessary disciplinary actions against the A.P.P. in this case who seems to have spoiled the case of State either intentionally or negligently. N.H.Q./1193/FSC Appeal allowed.