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Criminal Appeal No. 119 of 1986, decided on 29th October, 1986.
‑‑‑Art . 4‑‑Rule of prudence‑‑Heroin allegedly recovered from accused‑ Mashirs of recovery not supporting prosecution and other available evidence not produced‑‑Solitary evidence of seizing officer available on record‑‑Rule of prudence for safe dispensation of justice, held, would require that conviction should not be sustained on solitary statement of investigation officer.
Muhammad Ali Shaikh for Appellant.
M.A.I. Qarni for the State.
Dates of hearing: 26th and 29th October, 1986.
This appeal has been filed by the appellant against the judgment dated 28‑6‑1986 of the learned Sessions Judge, East, Karachi, whereby the appellant was found guilty of an offence punishable under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979, on the ground that he was found in possession of 15 grams of Heroin. He was sentenced to undergo R.I. for two years and to pay a fine of Rs.500 or in default of payment of fine to undergo R.I. for three months more. He had also been sentenced to whipping of three stripes. I have heard Mr. Muhammad Ali Shaikh, learned counsel for the appellant and Mr. M. A . I . Qarni, learned counsel for the State.
2. According to the case of the prosecution, the appellant was intercepted and on his search 20 "Puris" containing Heroin were recovered, which weighed 15 grams. The prosecution case depended on the evidence of A.S.I. Adalat Hussain and two Mashirs, who had signed the Mashirnama, namely, Abdul Waheed and Hassan. However, during the trial both the Mashirs did not support the prosecution case and deposed that Heroin was not recovered in their presence. They were declared hostile and cross‑examined by the D.P.P.
The case of the prosecution during the trial, therefore, depended on the solitary statement of Seizing Officer, Adalat Hussain, who was also the complainant and the Investigating Officer in this case. Learned counsel for the appellant has pointed out that the date of the recovery is 24‑1‑1986 when the Seizing Officer is shown to be a Sub‑Inspector, whereas on 17‑6‑1986 when his statement was recorded, he described his designation as a Head Constable. According to the learned counsel, this reflects upon his testimony. I am not impressed by this argument.
In cases under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979, the entire case of the prosecution depends on the recovery‑ and as such in a case, where the Mashirs do not support the prosecution, rule of prudence for safe dispensation of justice would require that conviction should not be sustained on the solitary statement of the Seizing Officer, who is also the complainant as well as the Investigating Officer. In such a situation, if apart from the Mashirs, other evidence was available, such evidence should be brought on record by the prosecution. In the instant case other evidence was available, as would be evident from the F.I.R. According to the complainant, who is also the Seizing Officer as well as the Investigating Officer, at the time of the incident, four constables were with him and the names of all those four constables with their buckle numbers are also given in the F.I.R. It appears that neither those four constables were examined under section 161, Cr.P.C. by the Investigating Officer nor any one or more of them were examined as prosecution witnesses.
In the circumstances of the instant case, where the Mashirs have not supported the prosecution case and other evidence was available but such other evidence was not brought on record, it was unsafe for the trial Court to base the conviction of the appellant on the solitary statement of the Seizing Officer, who was also the complainant as well as the Investigating Officer. It may further be observed that one defence witness had been examined by the appellant, who deposed about the innocence of the appellant.
3. As a result, Criminal Appeal No. 119 of 1986 is allowed and judgment and sentence dated 28‑6‑1986 of the learned Sessions Judge, East, Karachi, in Sessions Case No. 78 of 1986, are set aside. The appellant is on bail from this Court. His bail bonds are discharged.
S. A. Appeal accepted.
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