1991 PLP 2561 (MLD)

Arts. 3 & 4

Appreciation of evidence

In absence of evidence on record about selling of heroin against accused, no punishment could be visited upon him under Art.3 of the Order and at the most it would be a case punishable under Art. 4 of the Order

Prosecution having failed to bring home charge to accused beyond all reasonable doubts, accused was acquitted of the charge. Syed Nadeem Saqlain for Appellant. C.M. Latif for the State. Date of hearing: 12th March, 1991. Learned Additional Sessions Judge, Gujrat Camp at Kharian, by his judgment and order, dated 28-3-1990, recorded the conviction of Mst. Fatima appellant on the charge of possession of 50 grams of heroin for selling purposes which was recovered from her on her personal search on 13-9-1987 at 6-20 p.m. at Bus Adda Kharian and accordingly sentenced her to five years' R.I., twenty stripes and a fine of Rs.10,000 or in default six months' S.I. further under Article 3 and five years' R.I., twenty stripes and a fine of Rs.10,000 or in default six months' S.I. further under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as Prohibition Order.

2. The F.I.R. narrates a story that Muhammad Fazil Malik, Excise Inspector, was present alongwith police personnel at Adda Khacian that an informer reported to him that Mst. Fatima appellant was dealing in smuggling narcotics who has gone to Bara Peshawar and was to return at the time. Accordingly they waited at the bus stop alongwith the police personnel that a bus came from Peshawar side and the appellant alighted and on the pointation of the informer she was stopped and a bag of orange colour in her right hand was searched where an envelope containing 50 grams of heroin was recovered from out of six grams was separated as ample and a case was registered against her under Articles 3 and 4 of the Prohibition Order. At the trial the appellant was charged that on her personal search by police party 50 grams of heroin was recovered from her which she had kept with herself for selling purposes and had, therefore, committed an offence punishable under Article 3/4 of the Prohibition Order.

3. Shah Muhammad, Moharrir Constable C.I.A. Staff (P.W.1) was delivered two sealed parcels by Alamdar Hussain Shah, A.S.I. (P.W.6) on 13-9-1987 which he kept in safe custody in the Malkhana and delivered the sealed parcel on 22-9-1987 to Iftikhar Ahmad, Constable (P.W.2) who onward handed over the same in the office of Chemical Examiner wherefrom a positive report was received. Ahmad Hussain Shah, Constable (P.W.3) stated that on 13-9-1987 at 6-20 p.m. they were present at bus stand Kharian that on spy information the appellant was hauled up as soon she alighted from a bus and on her search 50 grams of heroin was recovered from her. He stated that Muhammad Fazil, Excise Inspector, alongwith Excise Constable had come to C.I.A. Staff at Lala Musa fromwhere a raiding party was formed. He could not tell the tune of their departure from C.I.A. Staff towards Kharian Bus Stand. He stated that they had come from C.I.A. Staff Lalamusa to Kharian by boarding a bus. He could not give the number of the bus nor if the said bus was a private or a Government bus. He stated that public in general remained watching the raiding party throughout the recovery proceedings. He stated that he did not know Muhammad Shah Kashmiri who was alleged by the appellant that at his instance she was involved in the case because her nephew was charged by him in the case of elopement of his niece. Malik Muhammad Fazil, Excise Inspector (P.W.5) stated that at 6-20 p.m. he accompanied by the police personnel, was present that on a spy information they went to the bus stand of Lahore at Kharian and Mst. Fatima, appellant, alighted with a shopper bag of orange colour in her hand, that she was searched and 50 grams of heroin was recovered from her. He stated that they had come from Lalamusa to Kharian by a wagon but he could not know if it was a private or an official wagon. He was suggested that on an earlier occasion Muhammad Shafi Kashmiri along Syed Alamdar Hussain Shah, A.S.I. were accompanying him and Charas was recovered from the house of Mian Khan in village Baherwal of Police Station Kharian which he replied that he did not know Muhammad Shari Kashmiri of Dinga. He also denied the suggestion that one Mst. Razia the niece of Muhammad Shafi Kashmiri was abducted by the sister's son of the appellant and that the appellant was involved in the case at his instance. Said Syed Alamdar Hussain Shah, A.S.I. (P.W.6) had also stated that he did not know Muhammad Shafi Kashmiri and that it was incorrect that at his instance the appellant was involved in the case. Appellant in her statement reported the incident of the elopement of Mst. Razia the niece of Muhammad Shafi Kashmiri with her nephew Muhammad Tariq. She also gave evidence on oath that on the day of occurrence she was coming from village Karyan Wala and was intending to go to Dinga that she alighted at Kharian to take a bus for Dinga when Muhammad Fazil and Muhammad Shafi took her in a car to Lalamusa where she was involved in the case. She produced Muhammad Anwar (D.W.1) and Liaqat Ali (D.W.2). She stated that no other case was made out against her except the present one in her life Muhammad Anwar (D.W.1). was the Ex-member of Town Committee, Dinga and he had gone to C.I.A. Staff Lalamusa after the arrest of the appellant at the instance of Muhammad Shafi Kashmiri. He did not go to the higher authorities on account of requirement of huge expenditure. He deposed about the false involvement of the appellant in the case. Liaquat Ali (D.W.2) had stated that the appellant was taken along her grand-daughter 4/5 years old in a car to C.I.A. Staff Lalamusa and that he had gone after the appellant to the C.I.A. Staff Lalamusa but to no avail. He admitted that the appellant belonged to his Bradri.

4. In the case we have at one hand the evidence of the police personnel and on the other hand the depositions of the appellant and her two defence witnesses. There was also filed a copy of the F.I.R. No.53 dated 14-5-1983 about the elopement/abduction of Mst. Razia by the appellant's nephew Muhammad Tariq. This Court generally believes into the evidence of the police personnel but where some ill motive is imputed to the police personnel in that position their evidence is sifted with care and caution. The raiding party was formed at C.I.A. Staff Lalamusa and the party came all the way to Bus Adda Kharian. Syed Ahmad Hussain Shah, Constable (P.W.3) stated that they came from C.I.A. Staff by bus and he did not know the number of the bus nor if the said bus was a private or a Government bus. Malik Muhammad Fazil, Excise Inspector (P.W.5) stated that they came to Kharian by a wagon but he did not know if it was private or an official wagon and that who had arranged the said wagon. Many persons had alighted from the bus along the appellant. Many other persons were present who remained watching the raiding party throughout the recovery proceedings but no one was joined. Appellant was coming all the way from Bara Peshawar but she had no other item in her possession except 50 grams of heroin wrapped in a polythene envelope, although generally public bring along some foreign items from Bara. From the appellant neither ticket nor money was recovered, which in due course she should have possessed in case she had gone to Bara Peshawar and was returning. Malik Muhammad Fazil, Excise Inspector, was either to deny or to admit the recovery of Charas from the house of one Mian Khan in village Baherwal, Police Station Kharian, that at the time Muhammad Shaf Kashmiri and Syed Alamdar Hussain Shah, A.S.I., were allegedly accompanying him but he said that he did not know it nor he remembered it. The P.Ws. could not tell the exact time about the arrangement of the raiding party. There was also noticed a contradiction in the matter of the weighment of the contraband narcotic in the statements of P.W.3 and P.W.6 as the one stated that it was weighed by a scale carried by Malik Muhammad Fazil and the other stated that it was weighed at a Jeweller's shop.

5. In the presence of ill motive imputed to the police and excise personnel and the defence evidence in rebuttal and the discrepancies pointed out as above in the prosecution evidence furnished by the Police and Excise personnel this Court would not withhold to extend the benefit of doubt to the lady appellant and acquit her of the charges. She is on bail and her bonds are accordingly discharged.

6. Learned trial Court is also cautioned that he wag to separately charge the appellant under Article 3 and Article 4 of the Prohibition Order. Further, there has not come forth evidence on record about selling of heroin as against the appellant and as such she could not be visited upon punishment under Article 3 of the Prohibition Order. It was at the most a case under Article 4 of the Prohibition Order and where too it was found that the prosecution has not brought home the charge to the appellant beyond all reasonable doubt. Appeal is accepted. H.B.T./642/FSC Appeal accepted.