P L D 2007 Karachi 350 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 18-2-2000 S.H.O. Iqbal Hussain of Police Station `C' Section, Sukkur received spy information about packing of illicit medicines in the Godown of the appellant situated near Al-Mustafai Hospital, Old Sukkur. On the said information S.H.O. went to the Divisional Inspector of Drugs Abdul Jabbar Kazi and informed him about the information. Thereafter, the Drugs Inspector and the police went to Mukhtiarkar, who was taken to supervise the raid. The police party along with Drug Inspector and Mukhtiarkar raised the Godown of the appellant and secured drugs, which were being packed in the cartons. The appellant was arrested and such mashirnama was prepared in presence of A.S.I. Abdul Rehman Kandhro and A.S.I. M. Moosa Memon. The appellant and the properties were brought to the Police Station where the Drugs Inspector lodged the F.I.R., which was recorded in 154, Cr.P.C. Book of Police Station. On 22-1-2001 the Drug Inspector Abdul Jabbar Kazi lodged the written, complaint before the Special Court Drugs Sindh, Karachi in respect of above mentioned incident. The Drug Inspector also obtained required permission for filing complaint, which was granted on 12-10-2000. The Drug Court took cognizance on the said complaint and issued process against the appellant. On 16-3-2001 the Drug Court framed the charge against the appellant for offence punishable under section 27(4) of the drugs Act, 1976. The appellant pleaded not guilty. The prosecution examined three witnesses. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. The Drug Court after hearing the parties counsel and going through the evidence convicted the appellant for office punishable under section 27(4) of the Drugs Act, 1976, sentenced him to suffer R.I. for 12 months and line of Rs.25,000 or in default thereof to suffer R.I. for three months with benefit of section 382(b), Cr.P.C. under the impugned judgment dated 25-9-2004. We have heard advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully. The learned advocate for the appellant has argued that the Drug Inspector was not competent to lodge the F.I.R., as such, the proceedings before the Court were corum non judice. He has relied upon (1) 1998 P. Cr. LJ 181, (2) NLR 2000 Criminal 251 and (3) NLR 2000 Criminal

454. On merits he has stated that the property was not produced before the trial Court; that the property was not sent to the Government Analyst, to prove that the property allegedly secured from the godown was medicines or expired medicines, therefore, the prosecution has failed to prove the case. Conversely, the learned A.A.-G. has stated that the trial Court did not take cognizance on the challan submitted by the police on the F.I.R. lodged by the Drug Inspector, but the cognizance was taken on the direct complaint filed by the Drug Inspector after obtaining required permission, therefore, the authorities relied upon by the learned advocate for the appellant are not applicable in this case. As regards the factual aspect of the case learned A.A.-G. conceded that the property was not produced before the Court or the same was sent to Expert to determine whether the property was medicine or expired medicine. However, he has stated that the ocular evidence is sufficient to convict the appellant. We have given due consideration to the arguments, gone through the evidence with the assistance of the learned advocate for the appellant and found that the prosecution examined three witnesses viz. P.W.1,S.H.O. Iqbal Hussain, P.W.2 Additional S.H.O. Abdul Rehman, who acted as mashir of recovery and P.W.3 Drug Inspector Abdul Jabbar. They gave the same details of the incident as mentioned in the earlier part of the judgment, therefore, need not to be repeated. From the perusal of their evidence, it is clear that the prosecution did not produce the property before the trial Court. As such, on the above aspect of the case the best piece of evidence was the alleged property. It is well-settled principles of law that if the best piece of evidence available with the party is withheld from the Court then the party has some Sinster motive behind it, therefore, the presumption under Illustration `g' of Article 129 can fairly be drawn that if the said piece of evidence would have been produced it would have been unfavourable to the said party. In the present case, it has already been observed that the best piece of evidence was the property itself, which was withheld by the prosecution. The witnesses had no opportunity to verify as to .whether the property produced before the Court was the same property, which was secured from the godown so as to connect the same with the appellant. As the prosecution has withheld the said piece of evidence, therefore, adverse inference can be taken in the case, which has materially and adversely effected the prosecution story. Furthermore, the property was not sent to the Government Analyst to prove whether the property was the drug within the meaning of the Act or the same had expired. This aspect of the case has also adversely affected the prosecution case. Learned A.A.-G. could not controvert the above position. From the above position, it is clear that the prosecution did not produce the property, which was the basis on which the case was initiated. Further the prosecution also did not produce the expert's report to show that the alleged property was the drug within the meaning of the Act, therefore, without such evidence of solitary statement of Drug Inspector on the said subject cannot be safely relied upon, therefore, the ocular testimony is insufficient to convict the appellant. As regards the legal aspect of the case suffice it to say that the drug Court did not take cognizance on the challan submitted by the police, but the Drug Court took cognizance on the direct complaint filed by the Drug Inspector after obtaining required permission from the competent authority, as such, the arguments of the learned advocate for the appellant on the said subject are without any force. The case laws cited by him are not applicable in the facts and circumstances of the case. After considering the material available on the record, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, he is entitled to the benefit of doubt, which was accordingly given to him while passing short order dated 7-3-2007, by which we had allowed the appeal. These are the reasons of our said short order. H.B.T./N-19/K Appeal allowed.