2002 PLP 621 (MLD)

Dost Muhammad Khan for Appellant. Shoukat Hayat Khan Khakwani, Dy. A.‑G. for the State, Date of hearing: 3rd May, 2001. TARIQ PARVEZ, J.‑‑‑The appellant has been convicted and sentenced to one year's R.I. and a fine of Rs.2,000, in default to suffer six months' S.I. for an offence under Article 3 of the Prohibition Order, 1979.

2. On 12‑3‑1999 at 4‑45 p.m. Sanaullah Khan, S.H.O. (P.W.6) allegedly in the company of Muhammad Hayat (P. W.5) and Lady Constable Mst. Farzana and the other police party raided the house of the appellant and from a room where a cot was lying, from underneath pillow have allegedly recovered 350 grams of Charas, hence the conviction.

3. There are two star witnesses of the prosecution, namely, Muhammad Hayat, A.S.‑I. and Sanaullah. S.H.O, Both are inconsistent on almost every material fact of the case. P.W.5 denies the presence of Mst. Farzana whereas P. W.6 accepts her presence. According to one P. W. there was one cot in the room while the other says four. It is said that the sole cot was lying on the western side of the room while the recovery witnesses places the cot in the centre. Nobody has seen that immediately before the arrival of the police appellant has escaped by scaling over the wall and could not be arrested but a reference is made to the statement of Mst. Farzana who was never produced at the trial. It is there in the statement of P. W.5 that the recovery house is inhabited by another person which would create doubt as to the exclusive possession not only of the house but also of the contraband. Even the mode in which the raid was conducted and the police party entered the house is contradicted by the two witnesses. It is there in the evidence that on way to the house of appellant, another case of narcotic was recorded were Balqiaz was an accused but strangely enough instead of sending him to the police station, he was continuously retained by the police party even during the raid of the house of the appellant. No person from the public or the surrounding houses has been. associated which would create substantial doubt in the case of the prosecution, also that when the two witnesses are not consistent as to the Charas was wrapped or opened and that one witness says that it was in the shape of `Gardah' while the other denies. We would, therefore, allow this appeal, set aside the conviction and sentence of the appellant, and acquit him of the charge brought against him in this case. He shall be set free forthwith if not wanted in any other case. H.B.T.1443/P Appeal allowed.