P L D 1988 Federal Shariat Court 26 (PLP)

Muhammad Suhail son of Khan Muhammad caste Qureshi resident of Gujjar Gali House No.222/I, Inside Mochi Gate, Lahore has assailed the order of conviction dated 22‑8‑1987 by Syed Ali Aqdas Shahzad, Magistrate Section 30, Lahore whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to five years' R.I. with fine of Rs.1,000 or in default of payment of fine to further undergo S.I for one month. The appellant has also been awarded five stripes.

2. The prosecution case at the trial was that on 2‑5‑1986 a secret information was received that the accused Muhammad Suhail resident of Gujjar Gali, Inside Mochi Gate, 'Lahore has been dealing in heroin at a large scale after being released from the jail on bail. A raiding party headed by Zahoor‑ud‑Din, Inspector Joint Task Force Crime Branch was formed. Amanat Ali constable No.8193 of the Joint Task Force was sent to strike a bargain as a fake purchaser. The said Amanat Ali having contacted the accused reported that the accused has agreed to sell one kilo heroin for Rs.22,000 (Rupees twenty‑two thousand) to be delivered in the lane in front of his house. At about 3‑30 p.m. the raiding party reached Chowk Fawara, Shah Alami Gate. The fake purchaser was sent who met the accused in front of his house and they started conversation. At about 4‑30 p.m. Muhammad Suhail came out of the house with an envelope containing 1 kilo heroin. On the pointation of Amanat Ali the accused was immediately caught hold of and a Khaki envelope containing heroin was recovered. Two grams was separated as a sample and the recovered narcotics and also the sample were sealed. The recovery memo was attested by Amanat Ali and Muhammad Abbas driver of the police jeep. The complaint drafted in this behalf by Zahooruddin Inspector was sent through Mohammad Riaz constable No.548. The formal F.I.R. was registered at the Police Station Akbari Gate by Hameed Ahmad Alvi, S.H.O./S.I. The investigation was carried by Zahooruddin Inspector and the challan was completed and put up before the trial Court.

3. The trial Court framed a charge under Article 3/4 of the said Order (the trial Court was not sure which provision of law was applicable) and on the denial of the charge the prosecution examined four witnesses. They are P.W.1 (Zahoor‑ud‑Din) P.W.2 (Muhammad Asghar) P.W. 3 (Amanat Ali) and P.W.4 (Muhammad Abbas). The accused when examined under section 342, Cr.P.C. denied the allegations and pleaded innocence and it was asserted that he was also involved before falsely. The accused appeared under section 340(2), Cr.P.C. in disproof of the allegations and produced one Muhammad Akram in his defence. Neither the accused nor the defence witness were challenged as not a single question was put in cross -examination. Thus, the defence remained unchallenged. The trial Court, however, found the accused guilty under Article 4 ‑of the said Order and sentenced him as mentioned above.

4. The learned counsel for the appellant has assailed the order on different grounds. I have gone through the record and found that the so‑called spy information was received in the office and the raiding party had to travel on a vehicle and reached the gali of the accused in half an hour and had gone with the sole object of search yet no public person was associated and the witnesses who are direct under the thumb of the Inspector Zahooruddin were made the recovery witnesses and no explanation has been offered why the provisions of law have not been followed. Where the recovered narcotic and the sample parcel were kept? In this behalf there are two conflicting versions. Muhammad Asghar (P.W.2) stated that he had taken the sample parcel on 4‑5‑1986 to the concerned office (office of the Chemical Examiner). It was given by the Investigating Officer but Investigating Officer contradicted him and said that the sample parcel was sent through Muhammad Aslam on 4‑5‑1986. The recovery is the outcome of an alleged sale but no sale has been established. P.W. 1 (Zahooruddin) has deposed that the money intended to be given to the accused was forged currency and was obtained from the market. It is not understood how a dealer in forged currency has become friendly with the police and had given forged currency to the police. Amanat Ali (P.W.3) the alleged fake purchaser has deposed that he had not taken with him any currency note. This witness had further deposed that after striking the bargain of one kilo heroin for Rs.22,000 he had come to the office. In the cross‑examination he took a sumersault and said"‑ It could not be expected of the accused that he would behave in a foolish manner and would part with the narcotic without obtaining the sale price thereof and in a Gali after having brought from the house (which was definitely a safer place). Thus, it can be safely said that the prosecution story as stated is not a true account of the occurrence and the testimony of the witnesses who belong to the task force alone does not ring true. The fake purchaser had reported about the accused in the office which is definitely a far off place from the house of the accused as the raiding party travelling in a vehicle could reach after half an hour. Only a proper raid witnessed by a Magistrate or independent and reliable witnesses would have stood the test of judicial scrutiny and it would not be safe to act upon the testimony of the petty official like driver of the jeep who had been under the thumb of the S.I.

5. The learned counsel for the appellant has placed on record a certified copy of the order dated 22‑8‑1987 passed by the same Magistrate and the accused present appellant has been acquitted. This order of acquittal pertains to the case referred to in the F.I.R. No.34, and also the accused appellant in his statement under Section 340(2), Cr.P.C. in the. present case. I am of the considered view that the appellant has been falsely involved. The appeal has to be accepted. The conviction and sentences passed are set aside and he is acquitted of the charge. The appellant Muhammad Suhail son of Khan Muhammad shall be released forthwith if not required in any other case. As a consequence of the acceptance of this appeal the notice for enhancement issued vide order dated 26‑9‑1987 of this Court is discharged. M.Y.H./374/F.S.C. Appeal allowed.