1989 P Cr (PLP)

2. The prosecution has produced only two witnesses. P.W.2 Saeed Ahmed Qureshi is F.I.O., Hyderabad, P.N.C.B. resident of Gulshan‑e‑Iqbal, Karachi. He is a recovery witness as well as Investigating Officer. P.W.1 Ghulam Safdar is an employee of the U.B;L. resident of North Nazimabad, Karachi.

3. The prosecution started by lodging of an F.I.R. Exh.6 recorded by the F.I.O. Saeed Ahmad Qureshi in Police Station P.N.C.B., Defence, on 27‑1‑1987 at 1500 hrs. According to this F.I.R., P.W.2 Saeed Ahmad Qureshi happened to be a member of a patrolling party led by Athar Hussain Afridi in the area on Tariq Road near Cafe Liberty. A secret information was received by the party that the present appellants were present with their motor‑cycle No.KCM‑8219 opposite to Cafe Liberty and were carrying heroin powder in sufficient quantity. On this information P.W.2 Saeed Ahmad Qureshi approached Malik Safdar and Ali Khan residents of Karachi and in their company reached the place of occurrence at about 3 p.m. On reacting the place of occurrence they found the motor‑cycle parked there. One of the appellants was on seat of the motor‑cycle. The other was standing near the 'motor‑cycle. He was in suspicious condition. The Police Officer asked for their names and addresses and also took body search of the two suspected persons. As a result heroin contained in a packet was found concealed in the Shalwar of appellant Pervaiz Ahmad resident of Sohrab Goth, Karachi. On further search cash amounting to Rs.50 and an Identity Card No. 128‑85‑019496 was recovered. On body search of appellant Hassan Abbas son of Ghulam Hussain resident of House No. A‑20/2 Aziz Abad, Karachi No. 38 a packet of cloth stuffed with heroin concealed in his Shalwar was recovered. The packets of heroin recovered from each accused when weighed were found to be 1 Kg. each.

4. P.W.2 Saeed Ahmad Oureshi took out samples for chemical examination from each packet, sealed them, and prepared recovery memo and arrested the accused. He also seized the motor‑cycle and took the two accused to the police station where he lodged the F.I.R. Exh.6 and conducted further investigation.

5. As stated above the prosecution had examined the Investigating Officer Saeed Ahmad Qureshi and he practically repeated what he had stated in the F.I.R. which version has been reproduced in the preceding paragraph in details. One or two points attracted attention in his statement in Court. He has stated, `I had weighed the heroin powder and each packet weighed to be one kilogram. I had taken out samples from each packet for sending to Chemical Examiner. I had no scale of mine available with me but I had arranged the same through my constable, and had taken the scale from thelewala. This version is contradicted by the other witness namely Ghulam Safdar who states that Saeed Oureshi had scale. P.W.2 Saeed Ahmad Qureshi has been cross‑examined at length and some searching questions have been put to him. In reply he has stated that I then recorded statements of P.Ws. Malik Safdar, Ghulam Ali, Arshad Islam, F.I.O. and Athar Hussain Afridi Group Leader. He further stated Cafe Liberty is a thickly populated area. I did not examine any shopkeeper of that area including nobody of management of Cafe Liberty. It is also noteworthy that he did not examine the other Mashir or any other independent witness. Indeed, he failed to produce any word from the lot of six statements he had recorded. A question was put to him whether the two Mashirs Ghulant Ali not examined and Ghulam Safdar were the stock witnesses and not the genuine witnesses of the occurrence. To this question, he replied It is incorrect to suggest that Malik Safdar and Ghulam Ali are my stock‑witnesses. He, however, could not explain why these two chance witnesses who lived in North Nazimabad and Orangi Town, Karachi areas situated 10‑15 kilometres from Cafe Liberty happened to be present at that place at that time.

6. After noting the totally unspiring version of this Narcotics Officer, we turn to the statement of only other witness namely Ghulam Safdar. This witness has stated that at about 3 p.m. when he was standing near Cafe Liberty, Saeed Ahmad Oureshi, F.I.O. of P.N.C.B. approached him and after disclosing his identity asked him to accompany him. Then he proceeds to describe what had happened in his presence at that time. Some extracts of his statement of which we have taken note in this appeal and which have become a focal point need to be reproduced below. He has stated `I am an Accounts Assistant in U.B.L. Nazimabad, Bara Board Branch, Karachi. I was on duty on 27‑1‑1987. At 1‑30 p.m. I was free from my duties. We get cards from our bank. I can produce that card. I have never acted as police Mashir before this case. I had informed that I had come for shopping purpose at Tariq Road on that day. There was nobody from public with Saeed Ahmad when he first contacted with me. It is incorrect to suggest that I have falsely deposed against the accused.

7. During his arguments Mr. Gul Zaman Khan, learned counsel for the appellants placed before us a certified copy of a statement of this witness which was recorded in some other case and contended that this witness has made a false statement on oath and thus misled the Court. The learned counsel further submitted that the conviction of the appellants has been procured by the prosecution on the basis of statement of an untruthful witness and as such conviction should not be upheld. As this was a serious allegation against P.W.1 Ghulam Safdar in absentia, we could not form any opinion about its authenticity and issued notice to Ghulam Safdar to appear in Court before us. In consequence to this notice, Ghulam Safdar appeared before us on 30‑7‑1989 and relevant portion of his statement may be reproduced below:‑ "I have appeared in Court as witness in this case and also in one more case. I do not remember the names of the accused persons in that case. That case was prosecuted by a Narcotic Inspector namely Mr. Rais. I have also appeared as a witness in this case in the Court of Sessions Judge (East), Karach .... It is correct that I have made a statement in Court in cross‑examination that I have never acted as police Mashir before this case. It is also correct that in fact I had already appeared in the earlier case State v. Mahmood Ahmad (Criminal Case No.228 of 1986) before Sessions Judge when I made the statement which was false and contrary to the facts. The reason for making this statement was that the question asked from me was whether I had appeared in a police case. In my opinion it was not a police case but a case relating to narcotics.

8. This witness has stated some other facts regarding his educational qualification as well as nature of his employment in the Bank. At one place he has said that he was working in the U.B.L. as Messenger and in the next breath he has said that he was working in the Bank as a Clerk. He does not know the name of the Manager of the Bank nor he remembers who was the Accounts Assistant in that Bank on 13‑2‑1988. He had also stated `I am Accounts Assistant in U.B.L. North Nazimabad, Bara Maidan, Karachi.

9. The statement of this witness apparently seems to be false to his knowledge when he says that he never appeared as a witness in any other case while he was making statement in this case. We would refer this witness to the learned trial Court of this case to be tried for perjury and if the offence is proved after his trial he should be punished. Such person deserves exemplary punishment so that the professional witnesses are eliminated from the proceedings in the Courts of justice particularly Shariat Courts where much emphasis should be laid on Tazkiya Al‑Shuhood.

10. So far as the present case is concerned after excluding the evidence of Ghulam Safdar we are left with the sole testimony of Saeed Ahmad, who is the B recovery witness as well as the prosecutor. The discrepancies in his statement have already been noted in the earlier part of this judgment.

11. The conviction of the appellants in such a situation would not be appropriate. We would, therefore, allow this appeal, set aside the conviction and sentence of the appellants. The appellants shall be released forthwith if not wanted in any other case.

12. The case papers should be sent to the learned Additional Sessions Judge for trial of Chulam Safdar son of Pehlwan Khan for perjury according to law. MA.K./489/FSC Appeal accepted.