1990 P Cr (PLP)

This order shall also dispose of a suo motu notice No. 2/L of 1989, issued by the Court for tree reason that in case the offence is proved why the sentence of whipping may not be awarded.

2. The appellant challenges through this appeal the order, dated 7th February, 1989, passed by Syed Anwar Hussain, Judicial Magistrate with powers under section 30, Lahore, who convicted him under Articles 3 and 4 of the Prohibition (Enforcement for Hadd) Order, 1979 and sentenced him as under: Under Article 3.‑‑‑ Four years' R.I., with a fine of Rs.3,

000. In default of payment of fine three months R.I., further. Under Article 4.‑‑‑ Four years', R.I., with a fine of Rs.3,

000. In default of payment of fine three months' R.I. further. The sentences of imprisonment were ordered to run concurrently. The appellant was also allowed the benefit of section 382‑B, Cr.P.C., for tile entire period he remained in custody during trial.

3. The occurrence is said to have taken place at 2‑30 p.m., at Adda Hanjarwal on the 19th May, 1988. near Sahib Brothers Petrol Pump. Muhammad Aslam Khan Niazi, S.I., Incharge Police Post, Hanjarwal, alongwith Amir Ali, A.S.I,, and other Police officials were on patrol duty. There they received information that a person was selling heroin in a street thoroughfare near Petrol Pump. Consequently, they formed a raiding party, went to the spot and apprehended the present appellant. Muhammad Aslam Khan Niazi, S.I., P.W.2 searched his version and recovered from the right hand side pocket of his shirt a, plastic bag containing heroin. 1t weighed 100 grams. A sample of two grams was taken and the two quantities were sealed into separate parcels. The recovery memo was signed by Amir Ali, A.S.I., P.W.1 and Ali Sher, Foot Constable, P.W.4 and scribed by Mr. Niazi.P.W.2. The sample was later retained by Muhammad Ashraf, Moharir, P.W.5. He gave it to Muhammad Azam, F.C., P.W.3 for transmission to the Chemical Examiner. He did so on the 24th of May, 1988. The result of the Chemical Examiner Exh P.D., is positive.. .

4. The case of the prosecution is supported by the five witnesses As state above, Amir Ali, A.S.I., P.W.1. Muhammad Aslam Khan Niazi, P.W.2 and Ali Sher Foot Constable, P.W.4 are the members of the raiding party. The search and the recovery was conducted by Muhammad Aslam Khan Niazi, S.I., P.W.2. While the other two witnessed the same.

5. The appellant in his statement under section 342, Cr.P.C., denied the allegations against him and stated that he had been falsely involved due to party faction in the village. He, however, did not lodge any direct allegation, against the police officials, of any enmity. He also appeared as his own witness and made a sworn statement and produced in addition four DW. D.W.1. Ahmad Din, D.W.2 Munir Hussain and D.W.3 Malik Shah. Malik Shah deposed that the appellant had been taken away by the police four days before the incident and at that time nothing was recovered from his person. Ghulam Abbas D.W.4 gave motive for the false involvement of the appellant.

6. It is contended by the learned counsel for‑ the appellant that the entire case of the prosecution seems to have been concocted. In support of this he has referred to the statement of P.W.1. He stated in his examination‑in‑chief that the recovery memo Exh. P.A. was signed by him and Ali Sher, Foot Constable, P.WA He denied that his name and particulars above his signatures are also written in his hand. He was contradicted by Mr. Niazi, S.I., P.W.2, who stated that Amir Ali wrote .us name and particulars himself and then signed it. This plea also appears to be incorrect even otherwise. It is clear to the naked eye and you do not need an expert to say that the name particulars and the signatures of Amir Ali are in one hand. Amir Ali PW.I was, therefore, not a truthful witness.

7. Even the name of Ali Sher P.W.4y,on Exh. P.A. seems have been written by Amir Ali and same appears to be the case about the entire recovery memo. Mr. Niazi was, therefore, also not speaking the truth to say that he was the scribe of Exh. P.A. Even his signatures are doubtful. His signatures on Exh P.B the complaint as also the writing 'S.I.' are different from each other. Rather, all Exhs. P.B., P.C. and PA., except signatures of Ali Sher on Exh. PA. are in the same hand and that hand appears to be of Amir Ali, A.S.I., P.W.1. Again, the specimen signatures do not tally with others. It appears to be a forged record.

8. I have shown all writings and the signatures including the specimens to the learned counsel for the State Mr. Nazir Hussain Mirza as also Mr. Muhammad Akhtar, Additional Advocate‑General, who also find that the same are not in one hand. It may be noted that there is a writing of Muhammad Aslam Khan Niazi addressed to the Chemical Examiner, which appears to be the genuine in the hand of the witness. The handwriting and the signatures thereon differ entirely with the documents Exhs. P.B. and P.C.

9. The learned counsel then referred to the contradiction in respect of the place of information. Both P.W.1 and P.W.2 stated that information was received at the adda whereas according to Ali Sher, F.C., P.W.4 the information was given at the Petrol Pump. The distance between the petrol pump and adda is g one furlong as stated by P.W.1. Ali Sher P.W.4, did not know where Adda is and what is its distance from the place of occurrence. P.W.1 and P.W.2 stated that they formed the raiding party at Adda while Ali Sher stated that they proceeded to apprehend appellant from the petrol pump. Ali Sher also did not know if the site plan Exh P.C. was made in his presence. His entire statement is contradictory of the details given by other witnesses and does not show that he at all was with the raiding party, if there was one.

10. The learned counsel also pointed out discrepancy about the presence. of the informer, after the raiding party left for the place of occurrence. According to Muhammad Aslam Khan Niazi, S.1., P.W.2 and P.W.I the informer came with C them upto the Petrol pump whereas according to P.W.4 Ali Sher he came at the '' petrol pump and remained present at the time and place of raid.

11. The case of the prosecution was that the information received was that the appellant was selling heroin. In the depositions, however, they categorically stated that the heroin was recovered in bulk in a bag and nothing else was recovered. It would mean that till then no heroin, had been sold by the appellant as no money was recovered from him. Further if he was selling heroin to passers by he would be carrying either papers for purses or at least would have some piece of paper to dispense the same. As neither any paper nor a pelvis or scale etc., were recovered it appears highly doubtful that he was seen by the informer selling heroin. If, however, it be said that he might be selling bulk but the tone of the information does not show that way.

12. After going through the entire evidence particularly the preparation of the recovery memo the complaint and the site plan as also the other details discussed above the prosecution case does not inspire any confidence at all. In that view of the matter, the defence version may be correct. In this view of the matter, I allow this appeal, set aside the conviction and the sentences and direct f that the appellant shall be released forthwith unless he is wanted in any, there case. The contraband material shall be destroyed in accordance with the rules. The Suo Moto Notice is also discharged.

13. An inquiry shall also be instituted as if the record was fabricated and the case concocted the delinquent officials must be dealt with according to law. A copy of this order shall go to the Home Secretary, Punjab, for necessary action. N.H.Q./494/FSC Order accordingly.