1994 PLP 1612 (SCMR)

WALI MUHAMMAD KHAN, J: ‑‑Abdullah Jan, appellant herein, through leave of the Court, calls in question the judgment dated 20‑12‑1990 passed by the Federal Shariat Court in Criminal Appeal No. 69/K of 1990, whereby his conviction under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, for having been found in possession of five kilograms of heroin and sentence of 15 years' R.I., whipping numbering ten stripes and fme of Rs.25,000 or in default six months' R.I., was dismissed. The facts of the case, briefly stated, are that Amanat Jawaid P.W.4 was on patrol duty alongwith other members of staff in the Keamari area of the city, searching for absconders when at 9‑00 p.m. they received a secret information that the appellant was holding a large quantity of heroin on bus stop Masan Road upon which they secured the services of two Mashirs, namely, Qamar Zaman and Abdul Majeed and proceeded in that direction. Reaching there they saw the appellant standing with a basket in his right hand. They apprehended him and on opening the basket recovered five cloth bags of white colour, each containing an inscription in Urdu "Mushtarka 5555" On shaking them, heroin powder came out of them. The Inspector put all the bags in one bag and sealed them on the spot. He prepared Mashirnama Exh.7/A and got the signatures of Abdul Majeed and Qamar Zaman thereon. He then drafted a complaint on the basis of which a case was duly registered. After necessary investigation in the case, the appellant was put on trial before the learned Sessions Judge, Karachi West, who after framing of the necessary charge‑sheet, recording of the prosecution evidence, statement of the accused under sections 342 and 340(2), Cr.P.C. and recording of the defence evidence produced by him, found the accused/appellant guilty under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him as stated in the introductory part of this judgment. His appeal before the Federal Shariat Court having failed, the instant appeal through leave of the Court has been filed. We have heard Mr. Muhammad Munir Peracha, Advocate, for the appellant; Raja Abdul Ghafoor, Advocate for the State; and have persuaded the record of the case. The learned counsel for the appellant vehemently argued that the five bags allegedly containing the heroin were neither weighed nor opened at the spot in the presence of the witnesses, nor any sample was taken therefrom as per statement of Qamar Zaman P.W.2 and Amanat Jawaid P.W.4 while according to Muhammad Zamurad ASI P.W.3 samples were taken from them on the spot by Amanat Jawaid P.W.4, that the recovery was allegedly effected near bus‑stop in a busy Bazaar, where many persons were present according to the deposition of the witnesses but no one from the public volunteered to depose in favour of the prosecution nor any effort was made to secure the signature/thumb‑impression of any person from the public on the recovery memos.; that Qamar Zaman P.W.2 is an ex‑policeman and was stock witness of the police as is borne out by the certified copies of the statements exhibited on the file by the accused in his defence; that both Oamar Zaman and Amanat Jawaid P.Ws. suppressed material facts going in favour of the accused to the effect that Qamar Zaman signed Mashirnamas in other cases and thus perjured themselves and were unworthy of credence; that the plea of the appellant that he was arrested from his house as he could not show the whereabouts of Sher Gul, his neighbour, from whose house recovery had been effected was supported by disinterested defence witnesses and taking the two versions of the prosecution and the defence in juxtaposition the appellant was entitled to the benefit of doubt; and lastly, that even according to the impugned judgment of the Federal Shariat Court Amanat Jawaid P.W.4 and Qamar Zaman P.W.2 have perjured themselves, and according to their observation, the trial Court had to consider issuance of notice to them. The learned State Counsel, on the other hand, submitted that the prosecution witnesses had no grudge or ill‑will against the appellant and that they could not be expected to plant huge quantity of heroin upon the appellant without any move or ill‑will. We have considered the arguments advanced by the learned counsel for the parties. Qamar Zaman P.W. is admittedly an ex‑police official having witnessed other Mashirnamas and the possibility that he was under the influence of police cannot be ruled out. His conduct in suppressing material facts, taken note of by the Federal Shariat Court as well, is sufficient to discredit his verasity. The defence witnesses who reside in the locality have testified to the innocence of the accused/appellant. Taking into consideration the entire material on the record, we are convinced that the guilt of the accused/appellant is not free from doubt. We accordingly accept this appeal, set aside the judgment of the trial Court and the appellate Court and acquit the appellant. N.H.Q./A‑1157/S Appeal accepted.