ABDUL JALIL vs THE STATE

1. ' MUHAMMAD ASHRAF LEGHARI, J.--- Appellant Abdul Jalil was tried in a Special Case No,220 of 1997 and convicted for offence under section 6/9(c), Control of Narcotic Substances Act. 1997 by Special Judge. Malir, Karachi.

2. ' The case in brief is that on 14-10-1997 mobile party of Police Station Sharafi reached the roundabout of Future Colony, Landhi, at about 18-45 hours and intercepted a. Person standing there in a suspicious condition. The man so intercepted introduced himself as Abdul Jalil. He was having four boxes and three bags which were searched by the police and found the same containing two maunds Bhang. The Bhang (hemp) was recovered and the person was arrested under the Mashirnama. The police then recorded. F.1.R. And took up investigation. After completion of investigation challan was submitted.

3. ' At the trial prosecution examined (P.W.1) A.S.-I. Rafiq Tahir, (P.W.2) S.-I. S. Ghazanfar Ali Kazmi and (P.W.3) Inspector Abdul Haleem Abro. Consequently. The offence was proved against the appellant and on 31st October, 1998 he was awarded imprisonment for life and fine of Rs,1,00,000, and in default whereof he had to undergo R.I. For six months more. The conviction has been appealed against, through jail.

4. The record shows that the charge is bad in law as Bhang, does not A come within the definition of hemp as contained in section 2(D)(ii). At the most flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) can be treated as cannabis but in the present case the alleged stuff as indicated from the Expert Report as under:-- "Dried greenish broken leaves, straws and seeds."

5. ' It appears that the learned trial Court has not appreciated the material contradictions in the evidence of 3 P.Ws. P.W. Rafiq Tahir (P.W.1) has stated that they had left the police station at 8-00 a.m., whereas P.W.2 Ghazanfar Ali Kazmi has stated that they left police station at 6 p.m. It seems that P.W.1 Rafiq Tahir has stated that P.C. Javed was driving the vehicle and S. Ghazanfar Ali Kazmi has stated that he was driving vehicle and the complainant was sitting with him on front seat.

6. Further, P.W.1 Rafiq Tahir stated that they were 3/4 officials and complainant Abdul Haleem stated that they were in all 7 persons on mobile. The F.I.R. Is silent about the sealing of recovered stuff at the spot. There is no mention in F.I.R. Regarding the weighing of recovered material. The F.I.R. Also does, not show the preparation of Mashirnama on the spot. The Mashirs were the subordinates of the complainant Abdul Haleem and the learned trial Court has not considered the statement of accused.

7. ' Mr. Arshad Lodhi learned A.A.-G. For the State has supported the impugned judgment.

8. The discrepancies in the depositions of witnesses are very material in the circumstances of this case, which have not been considered by the learned trial Court. The F.I.R. Is silent about the weighment and sealing of recovered stuff at spot.

9. ' The definition of cannabis (hemp) given in section 2(D)(ii) is reproduced below:-- "the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops from which the resin has not been extracted by whatever name they may be designated or known; and"

10. ' This definition clearly shows that the stuff must contain flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops). In the instant case as per Expert Report, the recovered stuff is as under:-- ' "Dried greenish broken leaves, straws and seeds."

11. ' The distinguishing quality in-between the provision of law and the recovered stuff is of much importance and stuff allegedly recovered does not fulfil the requirements of cannabis (hemp) as defined in section 2(D)(ii) of Act.

12. The requirement of the criminal law is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit the prosecution story and entitle the accused for acquittal.

13. ' The reliance, is placed on a case of Tariq Pervez v. The State reported in 1995 SCM R 1345. Under the aforesaid reasons, we are of the considered view that prosecution has failed to bring home the guilt of appellant.

14. We had allowed the appeal and set aside the impugned judgment and sentence of appellant by our short order, dated 24-8-1999 and above are the reasons for the same. The appellant is to be released forthwith if not required in any other case.