1989 P Cr (PLP)

Appellant Abdul Malik was tried by IIIrd Additional Sessions Judge (South) Karachi, for the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, who convicted and sentenced him to suffer R.I. for two years, Five stripes and to pay a fine of Rs.500 or in default to suffer R.I. for three months. The appellant has challenged his conviction an sentence by filing this appeal.

2. The case of the prosecution as unfolded in F.I.R. is that on 7‑10‑1985 at about 11‑45 p.m. Sohrab Butt S.H.O. Eidgah Police Station was patrolling in the area alongwith his subordinate staff, when he received a secret information that one person was setting powder of heroin. He, therefore, proceeded to Aslam Road near Allah Wala Decoration Service and found the present appellant under suspicious circumstances. The S.H.O. detained the appellant and searched his person in presence of Mashirs Kaloo and Sharif and secured one packet from the pocket of his shirt, which contained 13 grams of powder of heroin. The packets was sealed and such memo. was prepared. On 8‑10‑1985 at 12‑30 a.m., the report of this incident was registered at Eidgah P.S. The powder was sent to Chemical Examiner, Karachi, for examination, who found it powder of heroin of commercial grade. After usual investigation, the appellant was sent up to stand trial for the said offence.

3. At the trial the prosecution has examined Kaloo. (P.W.1), and Sohrab Butt S.H.O. (P.W.2).

4. The appellant has disputed the case of the prosecution in his statement under section 342, Cr.P.C. According to him, he was taken from the decoration shop where he worked at about 5‑30 p.m., and then involved falsely in this case. The appellant has examined Muhammad Ahmad (D.W.1) Sirajuddin (D.W.2), Muhammad Ishaque (D.W.3) and Laique Ahmad (D.W.4) in his defence.

5. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly.

6. Sohrab Butt S.H.O. (P.W.2) has testified the circumstances leading to the apprehension of the appellant and recovery of 13 grams of powder of heron from his possession. He picked up both the Mashirs on the spot and in their presence took the personal search of appellant and recovered 13 grams of powder of heroin from his possession. In cross‑examination the S.H.O. gave evasive replies about the antecedents of the Mashirs. Kaloo (P.W.1), who resides at Japani Road works as a fruit hawker at Burns Road, Karachi. He was coming out from a hotel at Aslam Road after taking meals when at 12 mid‑night he was asked by S.H.O. to act as Mashir. He has supported the version of Sohrab Butt S.H.O. (P.W.2) in material particulars.

7. The evidence of both these witnesses was relied upon by the learned Additional Sessions Judge on the ground that the same was consistent and Mashir Kaloo (P.W.1), being an independent person had no reason to depose falsely against the appellant.

8. In discussing the oral evidence and arriving at a conclusion on the basis, thereof, there are various factors which are to be kept in view. The evidence of witnesses examined by the prosecution is to be considered in juxtaposition to the version given by the accused and the witnesses examined in defence. It is the cumulative effect of both these aspects coupled with the probability of evidence that finally determines a certain question of fact. Where people observe a certain fact for a short space, discrepancies are bound to occur, and if there are no discrepancies in such cases, confederacy and concoction beforehand may always be suspected. A realistic view should, therefore, be taken in cases of this nature where fate of an accused hinges solely upon the evidence of one Mashir only.

9. Again, the mere fact that a witness had no apparent reason to falsely implicate accused does not render his evidence unassailable. The case of Nazir Muhammad alias Nazir Ahmad v. The State reported in P L D 1974 Kar. 274, lays down this principle in the following words:‑ "It may, however, be observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely, the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been repeatedly disapproved."

10. I have no cavil with the proposition of law that section 103, Cr.P.C. is not attracted in a case of personal search, but again the preparation of an inventory in presence of Mashirs and corroborative evidence of Mashir is not an empty formality. The police have always their pet witnesses or some can be easily hired or influenced and, therefore, the Courts should always be vigilant, whether it is a case of personal search or the search of a house or shop, that a Mashir should be, a respectable person, viz. a person who would be impartial and is not disreputable 3 in any way. The Courts should jealously guard the liberty of a subject which; revolves mainly on the evidence of such witnesses. 11: As against this stereotype evidence the appellant has examined Muhammad Ahmad (D.W.1), Sirajuddin (D.W.2), Muhammad Ishaque (D.W.3) and Laique Ahmad (D.W.4), who all have stated on oath that the appellant was' taken away by police at 5‑30 p.m. from the shop of decoration and then involved in this case. The evidence of these witnesses was not even challenged very seriously in cross‑examination. Muhammad Ishaque (D.W.3), and Laique Ahmad (D.W.4), were not put to even cross‑examination. The evidence of these witnesses was rejected by the learned Additional Sessions Judge for the simple reason that the proprietor of decoration shop was not examined by the appellant in defence, who also failed to establish his enmity with the police officials. No doubt the proprietor of the said decoration shop was a material witness for the defence, but the evidence of the defence witnesses, who were examined, could not have been rejected on this score alone. The evidence of these witnesses, is such that it in any' appreciable measure rendered the story oaf Sohrab Butt, S.H.O. (P.W.2) such which it might not be safe to accept in order to base the conviction on it. A conviction is certainly not to be based on the weakness of defence. The prosecution has to stand on its own legs.

12. The above discussion of evidence brings me to this conclusion that the case against the appellant is doubtful. In the case of Mst. Basri v. The State reported in P L D 1967 Pesh. 147, Khattak, J. observed as follows:‑ "The doctrine of benefit of doubt deep rooted in our system of criminal jurisprudence, must come into play in cases when the facts and circumstances of the case call for its application to promote the ends of justice. It is true that it must be kept within its bounds, still if it arises out of the established facts palpable in the evidence of the case as a whole, it should not be denied to an accused person, whose liberty turns entirely on the just and proper application of this principle."

13. Acting on this principle, I extend benefit of doubt to appellant and acquit him from the charge. The appellant is discharged from his bail bond. The impugned judgment is set aside and the appeal is accepted. S.A./A‑520/K Appeal accepted.