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Criminal Appeal No. 80 of 1986, decided on 29thOctober, 1986.

‑‑‑Art. 4‑‑Recovery of Heroin‑‑Out of two Mashirs, only one produced at trial‑‑Other given up as not supporting prosecution‑ ‑Mashir produced also not supporting prosecution‑‑Solitary statement of Investigating officer available on record‑‑No other evidence produced‑‑Defence witnesses deposing about innocence of accused‑‑Rule of prudence, held, would require independent corroboration of deposition of Investigating Officer which was not available‑‑Conviction would not be sustainable in circumstances.

Muhammad Ali Shaikh for Appellant.

Ayub Khanzada for the State.

Dates of hearing: 26th and 29th October, 1986.

This appeal has been filed by the appellant who has been convicted by the learned Sessions Judge (East), Karachi, by judgment dated 20‑4‑1986 under section 4 of the Prohibition (Enforcement of tiadd) Order, 1979, on the ground that 40 grams of Heroin was recovered from his possession. He has been sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000 or in default of payment of fine to undergo R.I. for six months more. There is also an order of whipping to the accused with five stripes. I have heard Mr. Muhammad Ali Shaikh, learned counsel for the appellant and Mr. Ayub Khanzada, learned counsel for the State.

2. The case of the prosecution depended on the evidence of the Seizing Officer and the two Mashirs, who had signed the Mashirnama relating to recovery of the Heroin. Out of the two Mashirs, only Abdul Shakoor was examined and he did not support the prosecution case. According to him, no recovery had been made in his presence. He was declared hostile and cross‑examined by the learned D.P.P. The other Mashir Ghulam Muhammad was not examined by the prosecution and a statement was made by the prosecutor to the effect that Mashir Ghulam Muhammad was not supporting the prosecution and as such he was not examined. The entire case of the prosecution during the trial, therefore, depended on the evidence of S.I. Muhammad Moosa Jokhio, the complainant Seizing Officer as well as the Investigating Officer. The appellant denied the prosecution case and according to him a false case was set up against him. Enmity was alleged. Two witnesses in defence were examined by the appellant, who deposed that the appellant had been taken away from his shop by the police.

The present is not a case of an ordinary crime, where apart from recovery, there is available invariably other evidence including ocular, medical and corroborative testimony. In a case under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979, the entire case of the prosecution depends upon the recovery. It was argued by the learned counsel for the appellant that in such cases an accused should not be convicted on the solitary statement of the Investigating Officer, who is also Seizing Officer as well as the complainant, but for sustaining conviction, in such cases, the evidence of the Seizing Officer should be supported by the evidence of the Mashirs and or other evidence.

No doubt, on record, there is the evidence of the Seizing Officer Muhammad Moosa Jokhio implicating the appellant, but in the facts of this case, the rule of prudence required that his testimony was corroborated by some other evidence. In this case, out of the two Mashirs, only one Mashir was examined and this Mashir, namely, Abdul Shakoor has also not supported the recovery. Then other evidence was available, as would be evident from the deposition of Seizing Officer Muhammd Moosa Jokhio. In his examination‑in‑chief the Seizing Officer states that he was accompanied by Inspector Altafuddin (an officer superior in rank) and 6 or 7 other constables. Neither the statements of these other police officials i.e. Inspector Altafuddin and other 6 or 7 constables were recorded by the Investigating Officer nor any one of them, who was available, was produced as prosecution witness. Then there were two defence witnesses also, who deposed about innocence of, the appellant. In these circumstances, conviction of the appellant on the solitary statement of the Seizing Officer was not sustainable and rule of prudence required corroboration of his evidence by other' evidence. As observed earlier, such other evidence was available, but was not produced by the prosecution. In the circumstances, benefit of doubt should have been extended to the appellant. Mr. Ayub Khanzada, learned counsel for the State, also does not support the conviction of the appellant.

3. As a result, Criminal Appeal No. 80 of 1986 is allowed, the judgment and sentence dated 20‑4‑1986 of the learned Sessions Judge, East Karachi, in Sessions Case No. 2067 of 1985 are set aside. The appellant is on bail from this Court. His bail bonds are discharged.

S. A. Appeal accepted.

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