1999 PLP 3318 (MLD)

This appeal is directed against judgment dated 29-5-1998 by Magistrate Section 30 (Judicial), Faisalabad, whereby learned Magistrate convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979, for having been found in possession of 20 grams of heroin and sentenced him to undergo R.I. for five years plus to pay a fine of Rs. 1000 in default whereof to undergo S. I. for two months. He was also awarded five stripes.

2. Briefly- the facts of the case are that a police party headed by Atta Muhammad, A S I (P. W. 1) committed a raid on receipt of secret information at Babar Chowk at a distance of half kilometre from Police Station, Batala Colony and apprehended the appellant. On search he was found in possession of 20 grams of heroin. A S I took the same into possession vide memo Exh. P B, which was attested by Ehsanul-Haq and Ghulam Abbas, Constables apart from the A. S. I. He recorded statements of witnesses, arrested the appellant and got the challan submitted to Court after completion of necessary investigation.

3. Statements of five P. Ws. were recorded at the trial. Ghulam Abbas, P. W. was given up at the request of the Inspector Legal after his particulars had been noted as P. W. 6 and he had been administered oath.

4. Statement of appellant was recorded under section 342 Cr. P.C., during which he denied the prosecution case and pleaded innocence. He took up the plea that he was working at the workshop of Iftikhar Hussain. Police had arrested Iftikhar Hussain on 27-7-1993, on having been found in possession of heroin and had recovered a carbine also from him. He explained that police challaned him falsely in heroin case and submitted challan against Iftikhar under Arms Ordinance.

5. Atta Muhammad, A S I, while appearing as P. W. 1 stated that on receipt of information at about 7.30 P.M. he had reached Babar Chowk alongwith his companions and had taken the appellant into custody, on being pointed out by the source. He further stated that 20 grams of heroin was recovered from him, two grams out of which he had sealed into a separate parcel for acing sent to the office of the Chemical Examiner and the remaining heroin was sealed into a separate parcel. He stated that he had recorded the statements of the witnesses, arrested the accused and got the challan submitted to Court. During cross examination, he admitted that he had investigated case F. I. R. No 199 registered on 27-7-1993 under section 13/20/65 of the Arms Ordinance. He expressed ignorance whether accused was working in the workshop at Sargodha Road. He denied the suggestion that heroin had been recovered from Iftikhar and that he had falsely challaned accused in this case after planting said heroin on him. Ehsan-ul-Haq, witness of recovery of heroin from the accused was examined as P. W.5. He did not support the prosecution case. He was declared hostile and allowed to be cross examined. Ghulam Abbas, Constable who had also attested the recovery memo, vide which 20 grams of heroin allegedly recovered from the accused had been taken into possession, appeared as P. W.6. After his particulars had been noted and he had been administered oath, Inspector Legal prayed for permission to give up the witness. The request was allowed. Statements of remaining witnesses are more or less of a formal nature.

6. As noted above, only Atta Muhammad A S I / I O, had supported the prosecution case at the trial. Ehsan-ul-Haq, witness from public had not supported the prosecution case, He was declared hostile and was allowed to be cross examined. However, prosecution failed to bring anything incriminating against the accused during cross examination. Ghulam Abbas, Constable who was the other witness named to have witnessed the recovery from the accused and had attested the recovery memo was given up after his particulars had been recorded by the trial Court and he had been administered oath. Obviously it can f be safely presumed that if he had been allowed to make a statement he would not have supported the prosecution case, otherwise there was no reason for the Inspector Legal to have prayed for permission to give up that witness. In a case where a subordinate of the A S I was not prepared to support the prosecution version of the case, the sole testimony of an A S I cannot be safely made basis for maintaining the conviction and sentences of the appellant. Statements of the remaining witnesses do not advance the case of the prosecution due to paucity of oculer account. This appeal is, therefore, allowed. Conviction and sentences of the appellant are set aside. He shall be released forthwith if not required in any other case. H.B.T./1198/FSC Appeal allowed.