MANZOOR HUSSAIN Versus THE STATE

1. Appellant Manzoor Hussain has been convicted by the Additional Sessions Judge, Hyderabad, under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000, in default to undergo further R.I. for three months vide judgment dated 24th September, 1986.

2. Prosecution case is that on 11.‑8‑1984, A.S.I. Muhammad Shareef of Market Police Station, Hyderabad, alongwith P.C. Abdul Razak, P.C. Ahmed Khan, and P.C. 'Abdul ~Haq went for patrolling. When they reached, Khora Building, Tando Wali Muhammad, they received spy information that one person is selling heroin near Choona Bhata. At 12‑15 hours, police party found one person standing who tried to run away on seeing the police party but he was caught and on his search, 43 small packets of heroin containing 14 grams were recovered from the right side pocket of his shirt. He disclosed his name as Manzoor Hussain. Appellant was arrested and brought to the police station where A.S.I. lodged the report.

3. Prosecution examined P.W. 1 Ahmed who is Mashir. He has stated that they started for patrolling alongwith A . S.I. Muhammad Shareef. They received spy information that one person was selling heroin. At the relevant place, they saw appellant who tried to run away but they apprehended him and on search 45 purias of heroin were secured from 'the right pocket of his shirt. The weight of heroin was 14 grams. Such Mashirnama was prepared and he acted as Mashir. He has stated that heroin was sealed' at the spot. In his cross‑examination, he has stated that A . S.I . Muhammad Sharif asked some persons to act as Mashir but they were not prepared to talk due to fear. A . S.I . did not enquire their names. He stated that there are houses near Khora Building. About 10‑15 persons came out from the houses at the time of arrest of appellant. A.S.I. requested those persons to act as Mashir but they refused. A.S.I. did not enquire their names. They returned to their houses. He produced the Mashirnama Exh. 6‑A. P.W. 2 Muhammad Sharif is Investigating Officer. He has supported the First Information Report and given the same facts as stated above in the F.I.R. He has stated in examination‑in‑chief that 43 purias were secured from the right pocket of shirt of appellant. He came at the police station and. lodged report which he produced as Exh. 7‑A. He has also produced the Chemical Report as Exh. 7‑B. In his cross‑examination, he has admitted that there are residential houses around the Khora Building and he has not seen anybody near the building. When he received spy information. He has admitted that there are also residential houses near Choona Bhatha and he had not seen anybody standing there. He has stated that heroin was sent to Chemical Examiner by S.H.O. He had written the weight of heroin approximately and has not weighed the heroin powder in scale.

4. Appellant in his statement under section 342, as well as in statement under section 340(2), on oath denied the allegation and stated that case has been filed due to enmity as his father was inimical to Sub‑Inspector Sharif.

5. He has not examined any person in his defence. I have heard Mr. Muhammad Ali Shaikh for the appellant. It is argued that there is no independent Mashir in this case and there are material contradictions in the evidence of police constable Ahmed and A.S.I. Muhammad Sharif with regard to the number of packets. It is also argued that heroin was sent to Chemical Examiner, after long delay. He relied a judgment of F.S.C. in Criminal Appeal No. 12/K of 1987, dated 8‑7‑1987.

6. Mr. Abdul Ghafoor Mangi learned A.A. G. for the State submitted that according to Mashirnama, 43 purias were recovered but 35 purias were sent to the Chemical Examiner, therefore, case is fit for remand as this ambiguity be clarified.

7. Mashir, Ahmed, is Police Constable. He has stated that so many persons were present at when appellant was arrested and A . S.I . asked them to act Mashir but they refused. On this point the evidence of A.S.I. Muhammad Sharif is contradictory to Mashir, Ahmed. He stated that no one was there. P.C. Ahmed in his evidence stated that heroin was weighed on the spot as A.S. I. had scale in investigation bag. On this A . S. I. stated that he has not weighed the heroin powder in scale ‑and written the weight approximately. Appellant was arrested on 11‑8‑1984. The report of the Chemical Examiner, Exh. 7‑B shows that he received a sealed packet from S. H .O. Market Police Station, on 3‑12‑1985, i.e. the delay of one year and four months which has not been explained. it is interesting to note that this packet was sent to the Chemical Examiner by letter dated 20‑7‑1985. The letter was prepared after 11 months and packet was received five months after the preparation of the letter. This discrepancy is such which cannot be over‑looked. Moreover, in the evidence Ahmed has stated that 45 purias were recovered from the appellant in Mashirnama 43 purias are shown and finally 35 small size packets were sent to the Chemical Examiner after a lapse of one year and four months. The case cited by Mr. Muhammad Ali Shaikh is relevant. The Mashir is police man. There is delay in sending the heroin to the Chemical Examiner and there are material contradictions about the number of the purias as stated above. The incident is alleged to have been taken place in the heart of Hyderabad city. No efforts were made to secure any independent witness and there are material contradiction on this point. For the reasons stated above, this appeal is allowed. Appellant is acquitted. His bail bonds stand cancelled.

8. S.G.D./M‑302/K ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.