1996 P Cr (PLP)

6. Feeling aggrieved the appellant has challenged his' conviction and sentence by way of this appeal.

7. I have heard Mr. Murtaza Khan Durrani, Advocate, learned counsel for the appellant and Mr. Muhammad Khurshid Khan, learned Assistant Advocate General for the State and have also gone through the record with some degree of care.

8. It seems to be a well‑settled proposition of law that in criminal cases the burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt. This duty, it may be mentioned, does not change or vary even in a case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with the prosecution case and, in the final analysis, if defence plea is proved or accepted then the prosecution case would stand discredited and shattered. However, if the defence plea is substantiated, to the extent of creating doubt in the credibility of the prosecution case, then in that case, it would be enough. It may be noted that in case it is not established, at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. Reliance may be placed on case titled Ashiq Hussain v. The State reported as 1993 SCMR 417.

9. Similarly it was held in case titled Hakim Ali and 4 others v. The State reported as 1971 SCMR 432 that in criminal trials the onus always lies on the prosecution to prove its case and the prosecution has to succeed upon the strength of its own case and not on the weakness of the defence.

10. Keeping in view the dictum as laid down by the Honourable Supreme Court of Pakistan in the cases, referred to above, I would now discuss the evidence produced by the prosecution in support of its case.

11. At the outset, the learned counsel for the appellant submitted that the case in hand was a concocted case and the version given in the F.I.R. (Exh.P.A.) was absolutely incorrect and false. He further stated that A.S.‑I. Badam Gul (P.W.3) has suppressed the facts because nothing was recovered from the possession of the appellant as has been depicted by him. He further contended that it was for this reason that nobody from the public was associated with the recovery process although quite a few persons were present on the spot when the recovery of contraband heroin powder was allegedly effected from the possession of the appellant. He drew my attention to the cross‑examination of the A. S.‑I. (P.W.3) wherein he has admitted: "It is correct that many people were present at the time of occurrence. It is correct that I have not recorded the statement of any public witness on the spot."

12. Similarly, the other P.W., who was produced to prove the recovery memo. (Exh.P.C.) i.e., F.C. Alam Zeb (P.W.1) also admitted this fact, in his cross‑examination, in the following words:‑‑ "Many persons were present at the time of occurrence in General Bus Stand but no one was associated from the public to attest the recovery memo. "

13. The learned counsel further submitted that the perusal of the recovery memo. (Exh.P.C.) would show that it is absolutely silent as to when, where and at what time the recovery was allegedly effected. In the above background the veracity of the recovery memo. (Exh.P.C.) was questioned vehemently.

14. Besides, the learned counsel contended that it is now well‑settled principle of law that if the law provides that an act should be done in a particular manner, then in that case, it shall be done in that manner and not in any other way. In support of his contention he placed reliance on the following case‑law:‑‑ (1) Ghulam Hamza v. The State 1996 PCr.LJ 514, (2) Muhammad Rafiq v. The State 1985 PCr.LJ 1985.

15. According to the learned counsel for the appellant the A.S.‑I. (P.W.3), the head of the police patrolling party, failed to associate even one independent witness from the public with the arrest of the appellant and the recovery of heroin powder from his possession even though the alleged incident, took place at the General Bus Stand, Peshawar, a populated and congested locality, at a time when the roads leading to it were chocked with traffic and pedestrians. This fact alone would render the prosecution case highly doubtful and would support the claim of the appellant that the case against him was concocted. The truth of the matter is, alleged the counsel for the appellant, that when the appellant, who belongs to village Murid situated in Tehsil/District Chakwal, Punjab, was searched, a sum of Rs.300 was recovered from his possession which was usurped by the police party. Since the appellant had demanded that the amount in question be returned to him therefore, he was involved in the present case. By parity of reasoning I find myself in complete agreement with the learned counsel for the appellant. It has not been made clear by the prosecution as to what prevented the Investigating Officer from associating anybody, from the public, to witness the recovery of heroin powder from the possession of the appellant. In fact the evidence on the file would show that no attempt whatsoever was made by the Investigating Officer to get the recovery witnessed by an independent/ disinterested person. In this setting of facts, the accusation, on the very face of it, is as vague as it is ambiguous. Reliance may be placed on case reported as titled Qaloo v. The State 1996 PCr.LJ496.

16. In my opinion since the persons from the public, being available and present, were not even called upon to become the recovery witnesses, therefore, the mandatory provisions of section 103, Cr.P.C. were definitely violated.

17. In addition to this, it may be observed, that the A.S.‑I. Badam Gul (P.W.3) is himself a complainant and has also acted as an Investigating Officer. Legally he could not assume this dual function and it was incumbent upon him to have entrusted the investigation of the case to another disinterested Police Officer. This fact by itself, has rendered the very trial of the case a sheer mockery. Additionally, it may be pointed out that if such a procedure/practice is allowed to continue, it would give a licence to the police to involve innocent people in false/fake cases according to their whims. This trend, in my opinion, is extremely dangerous and is accordingly deprecated with contempt. In this respect I am also, to a great extent, supported by the following cases:‑‑ (1) Bashir Ahmed and others v. The State 1996 PCr.LJ 418, (2) Muhammad Altaf v. The State 1996 PCr.LJ 440, (3) Qaloo v. The State 1996 PCr.LJ 496.

18. On the other hand, the learned Assistant Advocate‑General when confronted with the above situation could not rebut the position emerging from the above line of reasoning. Resultantly, the recovery memo. relied upon by the prosecution is hereby discarded. The appeal is accepted and the conviction and sentence recorded by the Additional Sessions Judge vide his judgment, dated 26‑2‑1996 is set aside. The appellant shall be released forthwith if not required in any other case.

19. On the conclusion of the arguments, this appeal was allowed on 12‑6‑1996 by a short order. Reasons for the said short order are given, in detail, in this judgment. N.H.Q./1983/P Appeal accepted.