1996 P Cr (PLP)

Date of hearing: 28th August, 1995. This appeal has been filed by appellant Abdul Majeed son of Ali Hassan Leghari against the judgment, dated 14-5-1990 passed by the IVth Additional Sessions Judge, Larkana, whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (F.I.R. No.64 of 1989) and sentenced to undergo two years' R.I., five whipping and to pay a sum of Rs.1,000 as fine or, in default of payment, to undergo further R.I. for two months. I have heard the appellant in person and Mr. Abdul Fatah Mughal, Advocate for A.A: G. With their assistance I have gone through the record including the evidence, documents exhibited and the impugned judgment.

2. According to the prosecution, on 29-8-1989 Syed Altaf Hussain Shah, Assistant E.T.O., Larkana alongwith Inspector Safdar Oureshi, Inspector Azharul Haq Shaikh, Excise Jemadar Ghulam Hyder Baloch and nine other Excise Constables, was at patrol in Larkana Town and when at about 3 p.m. they reached in Dari Mohalla near the house of Gul Hassan Leghari, they saw a man in suspicious condition. On enquiry that man disclosed his name as Abdul Majeed Leghari. His personal search was taken and a plastic bag containing 20 paper Puris of heroin and a cash of Rs.18 were secured from his left side pocket of the shirt. The heroin powder was weighed and found to be 13 grams. He took out 5 grams out of it for chemical purpose and sealed it. He also separately sealed the remaining 8 grams. He arrested the accused and secured the heroin under a Mashirnama prepared in presence of Mashirs H.C. Muhammad Bux and Deedar Ali. He then brought the accused and the property at Excise Office, where he lodged the F.I.R. He sent 5 grams sample to Chemical Examiner and also sent up the accused to stand his trial.

3. The prosecution examined two witnesses. P.W.1 Syed Altaf Hussain Shah (Exh.7) who is complainant as well as Investigation Officer of the case. He has produced the Mashirnama of arrest and securing the heroin (Exh.8), F.I.R. (Exh.9) and report of the Chemical Examiner (Exh.10). He has stated the facts as stated by him in the F.I.R. P.W.2 Excise Constable Muhammad Bux (Exh.11) who acted as Mashir of the arrest and securing of the heroin. He supported the complainant. In his statement under section 342, Cr.P.C. the appellant has denied the prosecution case and stated that he has been implicated in this false case on the instigation of one Muhammad Ishaque Leghari, with whom he has got enmity.

4. The appellant who addressed the Court in person and said that he is Chowkidar in Sessions Court, Larkana and he is falsely implicated in this case by the complainant at the instance of one Muhammad Ishaque Leghari with whom he has got dispute over land. He also pointed out that no public witness is joined by the complainant in the investigation and particularly at the time of recovery of alleged heroin and his arrest. He claimed that he is innocent and prays mercy.

5. On the other hand Mr. Abdul Fatah Mughal, Advocate appearing for the A.A.-G. supported the impugned judgment. He argued that the witnesses examined in the case have clearly proved the prosecution case and their evidence has not been shattered in spite of lengthy cross-examination. In the end, he stated that it was not necessary to Comply with the requirements of section 103, Cr.P.C. and in support of his contention, he relied upon a case Mir Muhammad v. The State reported in 1995 SCMR 614.

6. Since the appellant/accused is without the legal assistance of his Advocate as such I felt it my duty to see that no injustice is done to him (appellant) simply for want of legal assistance.

7. I have gone through the case-law 1995 SCMR 614 cited by Mr. Abdul Fatah Mughal and found that it is not applicable in the circumstances of the instant case, because no recovery is made on the leading and pointation of the appellant. In this case, during search of the person of the appellant, the alleged heroin was recovered from the left side pocket of his shirt. In the circumstances of this case, the compliance of section 103; Cr.P.C. was very necessary. The incident has taken place in broad daylight and in a thickly populated area but the private persons were not made as Mashirs of the recovery and arrest of the accused. The explanation, for not joining private persons, is given by the witnesses that in spite of request, nobody agreed to act as such. This is a general explanation. The names of the persons who were requested and they refused should have been noted down and given in evidence, as such the bald statements of the witnesses that nobody agreed to act as Mashir, cannot be accepted. Reference be made to a case (1) Saifullah v. State 1995 MLD 946 and (2) Pomi v. State 1995 MLD

927. It is no doubt that a police official is as good as any other private witness; but in such circumstances their evidence is to be examined and accepted with care and caution, so that a slightest doubt, if any, found or felt in the circumstances of the case, the benefit of it must be given to the accused.

8. Admittedly 13 grams of heroin was alleged to have been secured from the possession of the accused but I fail to understand as to why 5 grams was separated from it and sent to the Chemical Examiner and why not the entire. There is no evidence to prove that the remaining 8 grams of heroin which was not sent to the Chemical Examiner, is in fact a heroin powder, as such the finding of the trial Court, while determining point No.1 as to whether the accused was found in possession of 13 grams of heroin, and finding in affirmative, on the fact of it, is without any substance and evidence.

9. I also fail to understand as to why heroin is sent to Chemical Examiner after 14 days, as admittedly, heroin is secured on 29-8-1989 and the same was received by Chemical Examiner on 12-9-1989.

10. In view of the above discussion, I am of the opinion that the prosecution has failed to prove its case without any reasonable doubt; and as a result of which, this appeal is allowed and the judgment, dated 14-5-1990 passed by IVth Additional Sessions Judge, Larkana in Sessions Case No.715 of 1989 is set aside and the appellant is acquitted. He is present on bail, his bail bond stands cancelled and surety discharged. N.H.Q./A-1591/K Appeal allowed.