BUDHO MALGHANI vs THE STATE

' S.A. RABBANI, J.---In his capacity as Judge of the Special Court (Narcotics), the First Additional Sessions Judge, Jacobabad, Mr. Naseem Akhtar Shaikh, convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to rigorous imprisonment for ten years and a fine of Rs,10,00,000.

2. The charge against the appellant was that on 23-10-1999, S.H.O. Abdul Majid Abro was on patrol with his staff when he arrested the appellant from a Suzuki Pick-up and recovered three Kgs.

'Charas' from his possession. This S.H.O. And one Riaz Ahmed, A.S.-I. Are the only witnesses examined by the prosecution. The defence of the appellant was that the S.H.O. Concocted this case after arresting him at a time and place different from that mentioned by the prosecution, and it was due to previous enmity with his relatives who had made complaints to higher authorities against the

3. The appeal was heard at Circuit Court, Larkana and Mr. Abdul Waheed Katpar, learned counsel for the appellant merely sought a reduction in the sentence. Judgment was reserved for examination of the evidence on record.

4. The prosecution evidence on record comprises versions of complainant S.H.O. And one A.S.-I.

Who acted as Mashir. There is no independent witness. The learned Judge of the trial Court has observed that section 103, Cr.P.C. Is not applicable to personal search. In any case, however, where the offence is based on recovery of something, the evidence of witnesses belonging to police or any other Investigation Agency should be examined very carefully although their evidence cannot be discarded merely for the reasons of their official position.

Sr.

No.Statement of S.H.O. Abdul Majid. Statement of A.S.I. Riaz Ahmed.

1. He had himself recorded entry of departure in the daily diary.Entry was written by W. H.

C.

2. Charas was weighed on the weight scale lying in the investigation bag.They had approximately considered the weight of three slabs to be, one kilogram.

3. Sample was taken from three slabs.Charas for sample was taken from only one slab.

4. Accused was tied with a piece of cloth.They had not tied the accused with a piece of cloth.

5. Mushirnama was written by H.C.

Muhammad Aslam on his dictation.Mushirnama was written by S.H.O. himself.5. In the present case, had the learned Judge of the trial Court examined the evidence of the two police officials carefully with an impartial mind, he would have inferred that the evidence was not reliable and adequate for conviction. He condoned all lapses on the part of prosecution witnesses.

He wrote a lengthy judgment to justify his verdict. An unnecessary lengthy judgment reflects that the author is either incompetent or dishonest. He is incompetent because he is unable to decide as to what is necessary and relevant for the purpose, and what is unnecessary and irrelevant If the author is competent and his judgment is lengthy, it is for the reason that he has knowingly given a verdict that is not a logical outcome of the material on record and in order to justify his verdict extra material is inserted in the judgment.

6. P.W. Abdul Majid, S.H.O., has stated that when he apprehended the appellant, the latter sitting on the rear side of Suzuki and was holding the basket, containing Charas, in his hand. It is obvious that the witness was extra cautious to prove possession of Charas with the appellant otherwise one does not, usually, holds a basket in his hand while sitting in a vehicle. This witnesses, the S.H.O., has admitted that one cousin of the accused/appellant had made complaint against him to D.I.-G., Larkana. He further said that the accused/appellant has a criminal record. These admissions show that the appellant was not a stranger to the S.H.O. When he was arrested. The F.I.R. Lodged and recorded by him is in the manner as if the appellant was not known to the S.H.O,. These facts and admissions might be a base for inference that the defence version was not baseless.

7. The statements of the two prosecution witnesses have some material contradiction suggesting that they were telling lies. The contradictory statements are as under:--

8. These contradictions and facts suggest a probability that the case was prepared at the police station. The prosecution evidence was, however, too defective and inadequate for conviction. The appellant is entitled to acquittal. The appeal is, accordingly, allowed and conviction and sentence is set aside. The appellant shall be released in this case forthwith.