2001 P Cr (PLP)

FAIZ MUHAMMAD QURESHI, J.‑‑‑ Present appellant has called in question the judgment, dated 20‑5‑2000, passed by Special Judge, Control of Narcotic Substances, Dadu in Sessions Case No.589 of 1997, whereby he has been convicted and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000. in case of default the accused to suffer R.I. for one month more for the charge of offence under section 9(b) of the Control of Narcotic Substances Act, 1997. Hence this appeal.

2. The facts of the prosecution case are that on 22‑8‑1997 complainant Inspector Nazar Muhammad Sial lodged F.I.R. in Excise Office Dadu. stating therein that on the above date he alongwith his subordinate staff left his office for patrolling in Dadu Town, during which when he reached m Mohallah Gharibabad at about 4‑00 p.m., he saw the present accused. complainant suspected the accused and took his personal search and secured Charas from his possession. On enquiry accused disclosed his name as Muhammad Parial Solangi. The Charas was weighed on the spot and its weight was 120 grams. The complainant prepared such Mashirnama in presence of E.C Zahid Hussain Shah and Muhammad Asaam and obtained their signatures, he thereafter brought the accused and the property in Excise Office where he lodged the F.I.R.

3. After usual investigation the accused was challaned before the Trial Court for trial.

4. Charge was framed against the accused as Exh.2 and plea recorded as Exh.3 in which accused pleaded not guilty and claimed to be tried.

5. During the trial the prosecution has examined complainant Inspector Nazar Muhammad Sial as Exh.5 and the recovery Mashir E.C. Zahid Hussain Shah as Exh.6. During the evidence complainant has produced the Mashirnama of arrest of accused and the recovery as Exh.5‑A, F.I.R. as Exh.5‑B and the report of Chemical Examiner as Exh.5‑C. Learned District Attorney closed the evidence side of prosecution vide Exh.7.

6. Statement of accused recorded under section 342, Cr.P.C. as Exh.8 in which he has denied the case of the prosecution.

7. The trial Court formulated the points for determination and after going through the arguments of the learned counsel for the parties and going through the evidence, adduced by the prosecution, passed the judgment in terms as above.

8. We have heard the learned counsel for the parties and have gone through the evidence of prosecution witnesses and material available on record.

9. Mr. Bahadur Ali Baloch learned counsel for the appellant has argued that the recovery of 120 grams of Charas has been made from the possession of appellant at 5‑00 p.m. and yet no independent Mashir has been associated on the factum of recovery, although the name .of Mashir Muhammad Aslam, who is a private person, appears in challan but he has not been examined by the prosecution in the trial Court and no reasons have been assigned by the prosecution and has submitted that in these circumstances the recovery has become doubtful. He has further argued that the property sent to Expert has been received by the Expert's office after 24 days' delay viz: 16‑9‑1997. He has drawn our attention towards the difference between the weight of Charas shown in the F.I.R. as 120 grams and weight of Charas shown in the report of Chemical Examination 113 grams. He has further argued that there is no entry number mentioned in the F.I.R. and the Mashirnama of arrest and recovery and the inference can be drawn that Excise Police Party has not left the police station and false case has been foisted against the appellant on account of enmity as suggested by the appellant. In support of his contention he has placed reliance on an unreported case of Shahid v. The State, dated 14‑3‑2001.

10. On the other Mr. Ali Azhar Tunio learned A.A.‑G. has supported the impugned judgment and has stated that two Mashirs from Excise Police have supported the prosecution case and, there was no necessity to examine private Mashir, whose name appears in the challan and he has been given up by the prosecution in the trial Court.

11. We are being fortified by the case reported in 1996 SCMR 167, 168, wherein Honourable Supreme Court held that private Mashir who has been cited in the challan by the prosecution has been given up in the trial Court without assigning any reason by the prosecution, adverse inference may be drawn. Had he been examined by the prosecution, he would have not supported the contents of prosecution case and in that event the benefit was to be given to the accused. We are further fortified by the authority 1995 SCMR 1414, in that case one private Mashir was examined whereas the another was police man and the Honourable Supreme Court held that no reason has been given by the prosecution as to why the private Mashir has not been examined by the prosecution and the benefit of doubt has been given to the accused. We are not satisfied with the submissions rendered by Mr. Ali Azhar Tunio, A.A. ‑G., while supporting the impugned judgment.

12. We have considered the arguments of learned counsel of both parties and material available on record.

13. Admittedly, there are two police Mashirs and there is one private Mashir, no reasons have been assigned for not examining him, the entry number is not mentioned in the F.I.R. nor in the Mashirnama of arrest and recovery; there is delay in sending the case property/Charas to the Expert, there is difference with regard to weight of the Charas in the F.I.R. and in, the report of the Chemical Examiner.

14. Upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and we give benefit of doubt to the appellant. Conviction and sentence are set aside. In result, the appeal is allowed. The appellant shall be released forthwith if not required in any other case. N.H.Q./M‑143/K Appeal allowed.