1999 P Cr (PLP)

This appeal is directed against a judgment delivered on 5‑7‑1997 by IInd Additional Sessions Judge, Kandhkot District Jacobabad whereby the appellant is convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and is sentenced to R.I. for 3 years, 5 stripes and fine of Rs.5,000 in default to undergo 2 months further R.I.

2. A.S.‑I. Haq Nawaz Awan (P.W.1) of Police Station Kandhkot lodged an F.I.R. wherein he alleged that on 7‑10‑1994 at 17‑30 hours while he was on patrol duty accompanied by other police personnel that a spy information was received that the appellant was selling heroin outside his house in a street. The complainant with other staff reached the place of occurrence at 18‑00 hours. They saw the appellant who tried to escape but got apprehended by them. On his personal search, from the side pocket of his shirt a white plastic bag was recovered. On opening the bag, 10 Purries filled with heroin, some open heroin and Rs.200 were found in it. On weighing heroin, it turned out to be 28 grams. Out of open heroin and filled in Purries, 5 grams were separated for samples and the same were sealed. Remaining 23 grams were sealed separately. The appellant was arrested, challaned and charged under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, hereafter referred to as the said order read with section 14 of the Dangerous Drugs Ordinance to which the appellant did not plead guilty. To prove its case, prosecution examined two witnesses to prove its case. Appellant examined one witness in his defence.

3. I have heard the learned counsel for appellant and State. The major contention of the counsel for appellant is that there is violation of section 103, Cr.P.C. and the police has not tried to secure independent witnesses of locality although the place of occurrence was a thickly populated area. Haq Nawaz (P.W.1) is the complainant and Investigation Officer and in this respect he is deposing as under:‑‑ "I after receipt of spy information did not try to take Magistrate or picked any private persons to act as Mashir. It is a fact that the house of accused Qutub is situated in Mumtaz Muhalla. The street in which accused was standing was in the position going from north to south. It is a fact that one little street went at the eastern side at the place of Vardat. It is a fact that place of Vardat is situated in the centre of Kandhkot Town. It is correct to suggest that Mumtaz Muhalla and Daya Muhalla is a thickly populated area and people of different casts residing in it. " Abdul Rasheed (P.W.2), H.C., is deposing:‑‑ "It is correct to suggest that the house of accused is situated in big Muhalla in which people of different casts resides. The complainant first apprehended the accused and then we also apprehended him. Four five persons gathered when we apprehended the accused. I have not asked any private person to act a Mashir. " Since there are only two witnesses and both of them are the employees of police and since no reason has been shown for a clear violation of the mandates of section 103, Cr.P.C. and since the mockery of law has also taken place as the complainant and Investigation Officer is the same person, I find force in this contention and do hold that this conduct of prosecution has created doubt in the case.

4. Another limb of the argument is that samples were prepared on 7‑10‑1994 as per evidence of both the P.Ws. and memo of recovery (Exh.10), but according to the Report of Chemical Examiner (Exh.11) the same were received by him on 18‑5‑1995 which means that the samples were sent about 7‑1/2 months after the recovery. Where were the samples all this span of time? Record is silent on this point. To certain suggestions, P.W.1 has replied:‑‑ "I do not know as to how many days from incident the sample of this case was sent to the Chemical Analyser for check up. It is incorrect to suggest that first I prepared this false case and then after managing heroin powder after long time the sample of case property was sent to Chemical Analyser for check up." This position again creates strong doubt in the story of prosecution.

5. In his defence, appellant has produced a witness Rasool Bux byname. He has deposed:‑‑ "I know the accused since law 10/11 years. My house is adjoining to the house of accused. There is no any complainant to any Mohalla people that accused is selling heroin powder. Accused did not use heroin powder. The accused is having good moral character. In our Muhalla people of different castes resides in it. The people has not secured anything from accused."

6. Another factor worth noting is that the Report of Chemical Examiner is illucidating tests performed in the following words:‑‑ "(1) Total weight of the above parcel alongwith contents. 2.00 grams. Weight of Puries 7.00 grams. Net weight of powder 5.00 grams. This position indicates that the alleged recovery was not that of 28 grams, but that of 7 +5 =12 grams of heroin.

7. The upshot of the discussion is that the benefit of doubt is extended to the appellant. The impugned judgment is set aside and appeal is allowed. N.H.Q./36/FSC Appeal allowed.