WAHID BUX Versus STATE

1. FAIZ MUHAMMAD QURESHI, J. ---The present appellant has called in question the impugned judgment, dated 1-3-2000 passed by the learned Special Judge, Control of Narcotic Substances, Dadu in Sessions Case No.99 of 1998 under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 and 9(b) of Control of Narcotic Substances Act, 1997 bearing Crime No. 10 of 1998 Railway Police Station, Dadu, whereby the appellant has been convicted and sentenced to suffer R.I. for seven years and to pay fine of Rs.2,000, in case of default accused to suffer R.I. for (sic) year more. Hence this appeal.

2. Prosecution story in brief is that on 11-4-1998 at 4-20 a.m. complainant A.S.-I. Muhammad Ali lodged F.I.R. at Railway Police Station, Dadu, stating therein that on the above date he alongwith H.C. Mumtaz Ali, P.C. Zakria, P.C. Ghulam Mustafa, P.C. Muhammad Iqbal Panhwar and Abdul Majeed was on platform duty. In presence of the complainant and P.Ws. Kushhall Khan Khatak Express arrived at platform, when the complainant and the P. Ws. were searching the train they saw one suspected person sitting in the second class, on enquiry that suspected person disclosed his name as Wahid Bux son of Sobdar Ali. According to the F.I.R. one bag was with the accused which was searched. During the search of the bag Charas was recovered from the bag which was wrapped in the Ajrak. Complainant also recovered National Identity Card from the possession of the accused. Complainant prepared the Mashimama of the arrest of accused in presence of H.C. Mumtaz Ali and P.C. Abdul Majeed and obtained their signatures, he thereafter brought the accused and property at Railway Police Station where he weighed the Charas and its weight was 570 grams, and such Mashimama was also prepared in presence of the same Mashirs.

3. After usual investigation accused was challaned before learned Civil Judge and F.C.M., Dadu who sent up the case to the Court of Sessions Judge, Dadu.

4. Trial Court framed the charge against the accused at Exh.2, and plea was recorded at Exh.3, in which accused pleaded not guilty and claimed to be tried. During the trial prosecution examined H.C. Mumtaz Ali as Exh.4, and complainant A.S.-I. Muhammad Ali as Exh.6. During the evidence H.C. produced two Mashimamas as Exhs.4-A and 4-B and complainant produced report of the Chemical Examiner and the F.I.R. as Exhs.6-A and 6-B and thereafter learned D.A. closed the side of prosecution vide Exh.7. Statement of accused was recorded under section 342, Cr.P.C. as Exh.8., in which he denied the case of the prosecution.

5. The trial Court formulated the point for determination and after having gone through the evidence adduced by the prosecution and material available on record, the learned Special Judge, Control of Narcotic Substances, Dadu passed the judgment in the above terms.

6. We have heard the appellant in person and Mr. Muhammad Azeem Panhwar learned Advocate for Advocate-General for the State at length and we have also gone through the evidence adduced by the prosecution and the other material available on record.

7. It has been pointed out by Mr. Muhammad Azeem Panhwar learned Advocate for Advocate-General for State that the challan is said to have been submitted by Railway Police under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9(b) of Control of Narcotic Substances Act, 1997. We have also seen that the charge has been framed by the learned Special Judge, Control of Narcotic Substances under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9(b), Control of Narcotic Substances Act, 1997. Thus, the present appellant has been tried by way of two different statutes. We have also seen the judgment with jade and critical eye that the learned Presiding Officer has observed in judgment that the present appellant Wahid Bux is charged and tried for offences punishable under section 9(b), Control of Narcotic Substances Act, 1997, which fact reveals that the learned Presiding Officer has not applied his judicial mind by trying the present appellant in two different statutes and this very factor has vitiated the trial and it has not been disputed by Mr. Muhammad Azeem Panhwar, Advocate for Advocate-General for the State.

8. Mr. Muhammad Azeem Panhwar learned Advocate for Advocate-General for the State has further drawn our attention on the very material fact that the complainant in this case is Muhammad Ali who is A.S.-I., and by virtue of section 21 of the Control of Narcotic Substances Act, 1997 he is not competent to take cognizance and this aspect of the case has not been considered by the trial Judge while pronouncing the judgment.

9. Since the present appellant has been tried under two different statutes and the prosecution is not certain with regard to the commission of the offences committed by the present appellant, in that event the entire trial has been vitiated where an adverse inference can be drawn against the prosecution and in that event the benefit of doubt goes to the present appellant and not to the prosecution.

10. We have also seen the Mashirnama of recovery of Charas viz. 570 grams has been recovered from the possession of the present appellant who is said to have been sitting in railway compartment and it has been effected in presence of H.C. Mumtaz Ali and P.C. Abdul Majeed. No independent person was asked to act as witness of recovery. We have also observed that the recovery has been effected on 11-4-1998. at 3-45 but the case property viz. Charas is said to have been dispatched by police on 20-4-1998, whereas expert office has received it on 21-4-1998 as such there is a delay in sending the case property to the expert which goes unexplained by the prosecution. We have also seen that the case property has not been produced before the Court and the same has not been shown to the present appellant at the time of recording his statement under section 342, Cr.P.C. Reliance can be placed on 1995 SCMR 1345, wherein Honourable Supreme Court has held that if single circumstance creates doubt in the prudent mind, the benefit of doubt is to be given to the accused not as a matter of grace but as a matter of right. Hence the benefit of doubt in the circumstances goes to the appellant.

11. Upshot of the above discussion is that the prosecution has miserably failed to prove its case against the present appellant. We accord him benefit of doubt and set aside the conviction and sentence. Resultantly the appeal is allowed. The appellant shall be released forthwith if not required in any other case.

12. N.H.Q./W-20/K Appeal accepted.