2000 PLP 1045 (MLD)

Allah .Nawaz Khan for Appellant. S. Saeed Hassan Shah, Asstt. A.‑G. for the State. Date of hearing: 26th November, 1999. The appellant was charged for having committed an offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, vide F.I.R. No.378, dated 31‑7‑1997, lodged in Police Station Cantt., D.I. Khan and after the completion of the usual police investigation, he was put on trial. The Additional Sessions .Judge, D. I. Khan, at the conclusion of trial, held the appellant guilty and convicted him under Article 4 of the Hadd Order (ibid). He was accordingly, sentenced to two years R.I. alongwith a fine of Rs.5,000 or in default of payment of fine to further undergo three months S.I. Benefit of section 382‑B, Cr.P.C. was also extended to him, vide judgment, dated 8‑9‑1999. Aggrieved by the said judgment, the appellant has challenged its legality/validity by filing this appeal.

2. Mr. Allah Nawaz, Junior learned counsel for the appellant, and Syed Saeed Hassan Sherazi, learned Assistant Advocate General for the State present and heard. Record of the case perused carefully.

3. The learned counsel for the appellant mainly contended that the prosecution has failed to procure independent persons to witness the recovery though the occurrence allegedly took place it, a thickly populated locality. Thus, the provisions .of section 103, Cr.P.C. were not complied with. Further submitted that the sample of alleged contraband heroin was sent to the Chemical Expert after seven days of the occurrence which makes the alleged recovery doubtful, reliance was placed on "PLD 1997 Lah. 633". Resultantly, the appellant could not be convicted in the circumstances of the case.

4. Admittedly, the scene of occurrence is a thickly populated area and according to Abdul‑Latif, A.S.I. (P:W.4), he did not call any shopkeeper or any other private person to become witness to the contraband recovered from the possession of the appellant. The police party clearly‑ violated the mandatory provisions of section 103, Cr.P.C., and, therefore, the alleged recovery of contraband heroin had become illegal and could not be made the basis of a conviction. Besides, after alleged recovery, the prosecution has again failed to send the sample extracted from the recovered heroin. immediately and without loss of time 'as the sample was dispatched to the Chemical Expert after seven days of the occurrence. The appellant was accordingly entitled to be acquitted not as matter of grace but as a matter nr right in view of the dicta laid down by the apex Court in cases reported as "PLD 1997 SC 408 and "PLD 1997 Lah. 633".

5. Resultantly, this appeal is accepted, the conviction/sentence recorded by the learned Additional Sessions Judges D.I. Khan, dated 8‑9‑1999, is set aside and the appellant is acquitted. He shall be released forthwith, if not required in any other case. N.H.Q./19/P ?? Appeal accepted.