2005 P Cr (PLP)

Ist Additional Sessions Judge, Karachi South has convicted the present two appellants and one Habib-ur-Rehman under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and has sentenced accused persons Habibur Rehman and Attaullah to undergo R.I. for two years and one month each and fine of Rs.500 each and, in default to further undergo S.I. for one month each and accused Abid Hussain sentenced to undergo R.I. for two years and three months and a fine of Rs.500 and, in default to further undergo S.I. for one month.

2. The case was initiated on the F.I.R. lodged by Sub-Inspector Muhammad Ameen Khokhar of Chakiwara Police Station on 23-6-2000, alleging that he along with his police party, on spy information apprehended the appellants and secured from their possession heroin powder and some cash. According to F.I.R., the police recovered from appellant Abid Hussain 20 grams of heroin, powder in four wrappers of equal weight and Rs.35. From Attaullah appellant, the police recovered 15 grams of heroin powder in three wrappers of equal weight and Rs.25. From Habibur Rahman, the third accused person, the police recovered 15 grams of heroin powder and Rs.45.

3. According to prosecution case, the powder was sent to Chemical Examiner for report and the Chemical Examiner found that without wrapper the weight of heroin powder contents was more than mentioned in the F.I.R. by the police. However, the report was that it was heroin powder.

4. The main contention of the learned counsel for the appellants is that despite the fact that the appellants were allegedly apprehended from a populated area and at a business time, no independent witness was involved to prove recovery of the heroin powder from possession of the appellants. All the three witnesses examined are police officials. According to them the wrappers recovered from possession of the appellants and the third accused were of equal weight of five grams. Prosecution witnesses do not clearly state how they weighted the alleged heroin powder and whether it was actually weighed at all. Of course, the police officials are witnesses like any other witness but, in the circumstances, their evidence is to be scrutinized with a deal of skepticism because possibility of false involvement by police just to show their efficiency cannot be ruled out. Absence of independent witnesses, other than the police officials themselves, makes the case doubtful and the benefit of doubt is go to the appellants. Both the appeals are, therefore, allowed and the conviction and sentence of both the appellants are set aside. Appellant Abid Hussain is on bail. His bail bond stands discharged. Appellant Attaullah is in jail. He be released in this case forthwith. H.B.T./86/FSC Appeal allowed.