1994 PLP 1053 (MLD)

This appeal is directed against the judgment, dated 11-8-1993 passed by the learned Additional Sessions Judge, Lahore, whereby the appellant was convicted for offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced as under:

(i) Under Article 3 of the Order to suffer R.I. for ten years and twenty stripes. (ii) Under Article 4 of the Order to suffer R.I. for ten years and twenty stripes. Both the sentences of imprisonment were ordered to run concurrently with benefit of section 382-B, Cr.P.C. By the same order the amount of Rs.7,000 recovered from the appellant was ordered to be confiscated in favour of the State.

2. It is case of the prosecution that on 25-2-1993 P.W.2 Muhammad Latif informed Senior Superintendent of Police, Lahore, that appellant Muhammad Aslam, S.I. of Police Station, Lahori Gate, was compelling him to sale heroin on his behalf. The Senior Superintendent of Police, therefore, directed Tahir Alam Khan, Deputy Superintendent of Police, Lahori Gate, to arrest the appellant with proof. Tahir Alam Khan thus formed a raiding party consisting of Sardar Ali, A.S.I. (given up), P.W.5 Roshan Din, A.S.I. (declared hostile), A.S.I. Muhammad Akhtar, P.W.3, Saeed H.C. (not produced) and Abdul Hameed, Driver/Constable (not produced). They all went to the Police Station, Lahori Gate, Lahore and assembled outside the Police Station. Tahir Alam Khan, D.S.P., gave Rs.3,000 in shape of three currency notes of rupees one thousand each for purchase of heroin from the appellant, who was inside the police station. On signal of witness Muhammad Latif the party surrounded the appellant. On his personal search Rs.3,0(m and 100 grams of heroin was recovered from him. Ten grams of heroin as sample was taken from the lot. Then two separate parcels were prepared accordingly. Recovery memo. Exh.PA was prepared and was attested by A.S.I. Muhammad Akhtar (P.W.3) and A.S.I. Sardar Ali (not produced). It is further case of the prosecution that while in police custody on the same day appellant Muhammad Aslam led to recovery of 1,100 grams of heroin and also Rs.4,000 from his room. A recovery memo. (Exh.PB) was prepared accordingly by witness Tahir Alam Khan and the same was attested by P.Ws. Roshan Din, A.S.I. and Zulfiqar Ahmed. Inspector. Ten grams of heroin was taken out from each packet and .separate parcels were prepared accordingly. The samples were sent for examination to the Chemical Examiner, whose report is in positive. However, after usual investigation the appellant was challaned before the Court to face trial under Articles 3 and 4 of the Order. His case came up for trial before the Court of the learned Additional Sessions Judge, Lahore, where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore; examined P.W.1 Tahir Alam, D.S.P., P.W.2 Muhammad Latif, P.W.3 Muhammad Akhtar, A.S.I., P.W.4 Manzoor Ahmed A.S.I., P.W.5 Roshan Din, A.S.I., P.W.6 Muhammad Aslam, H.C./Moharrir, P.W.7 Zulfiqar Ahmed, Inspector, P.W.8 Muhammad Nawaz, Constable, P.W.9 Muhammad Afzal, H.C., P.W.10 Muhammad Ilyas, S.I., P.W.11 Muhammad Iftikhar Pirzada, D.S.P. and P.W.12 Ishtiaque Hussain, S.I./S.H.O. Dr. Muhammad Kaleem-ud Din, Chemical Examiner, was also examined as C.W.1.

3. In his statement recorded under section 342, Cr.P.C. the appellant denied the allegation and canvassed innocence. He gave detailed explanation in his statement recorded under section 340(2), Cr.P.C. as under:

"I was posted as Sub-Inspector in Police Station Lahori Gate, Lahore; when Muhammad Latif P.W. in the present case got arranged the raiding party at the behest of S.S.P., Lahore, who was falsely informed by him that I dealt in heroin selling. It was conspiracy hatched by him in order to take revenge from me as I had arrested him on 27-5-1992 under section 216, P.P.C. for providing shelter to a proclaimed offender. I produced the certified copy of the F.I.R. as Exh.D

1. The raiding party in pursuance of false reporting of the said Latif P.W. raided my room at P.S. Lahori Gate and arrested me and later on recovered the heroin from my box which was placed by the said Muhammad Latif P.W. therein, which was the result of the trap made and prepared by him. The said P.W. Muhammad Latif before placing heroin in my box had promised to lead me to the recovery of the huge quantity of heroin from Phatans living inside Mori Gate, Lahore, whom I believed to be truthful and honest in this respect. But in fact he wanted to involve me in the present false case. He also obtained Rs.6,000 from me towards the price of the said heroin, which I paid hoping that I would recover the huge quantity of heroin from the said Phatan and prove my efficiency, to the higher officials. The raiding party headed by Mr. Tahir Alam, D.S.P. recovered. from my room in the said P.S. Rs.7,000, which amount was meant to be. paid as instalment of the wagon which I had purchased from Malik Motors Show Room, situated at Ravi Road for my brother-in-law Fida Hussain. he officers who raided my room and the one who later on investigated the. present case did not provide me any opportunity to explain my position and to prove that said Muhammad Latif was inimical towards me and at his instance the entire machinery of the police was set in motion. The said Muhammad Latif soon after the raid disappeared from the scene, as he had succeeded in his evil design. I am absolutely innocent in the present case and never had any intention or motive to involve myself in such a heinous offence." Besides, he examined Muhammad Nazir and Fida Hussain as defence witnesses. However, the learned trial Judge discredited his defence version and while relying on the prosecution evidence convicted and sentenced the appellant as mentioned hereinabove. Hence this appeal.

4. I have heard Malik Maqbool Ellahi, Advocate, for the appellant and Mr. Muhammad Iqbal, Advocate, for the State.

5. The learned counsel for the appellant has taken following grounds in support of his appeal:

(i) The main witness Muhammad Latif, on whose information the raid was conducted, has not supported the prosecution, but on the contrary supported the version of the defence and was declared hostile by the prosecution. Hence the conviction and sentences of the appellant cannot be maintainable. (ii) Besides, A.S.I., Roshan Din has not supported the prosecution and was declared hostile. (iii) Witnesses Sardar Ali, Saeed and Abdul Hameed were not produced.

6. The learned counsel for the State vehemently controverted the contentions raised by the learned counsel for the appellant and insisted for maintaining the conviction and sentence of the appellant. .

7. With the assistance of the learned counsel for the appellant I have gone through the evidence of the prosecution witnesses, the Court witness, statements of the appellant and his defence witnesses. A perusal of the F.I.R. and the deposition of Tahir Alam Khan, D.S.P. discloses that the raid was conducted on the complaint of witness Muhammad Latif. It is an admitted fact that the appellant had arrested witness Muhammad Latif on 27-5-1992 and registered a case under section 216, P.P.C. against him. In his examination-in- chief witness Muhammad Latif has in unequivocal terms admitted the same fact and deposed before the trial Court as under:

' "About 2-1/4 years ago I run a Billiard Club. Muhammad Aslam ` accused raided same and registered a case under section 216, P.P.C. for providing shelter to Kamal Khan a proclaimed offender. I told the accused that I was innocent and in fact was a tenant of Kamal Khan. But accused challaned me in that case. Accused demanded illegal gratification from me. I denied to give the same accused applied 3rd degree method upon me. I was released on bail when I was in prison I decided to take the revenge and in order to fulfil my design, I made false friendship with him and made him to believe that I was his true friend. The accused started to trust upon me. I told the accused that I would help informing him about the criminals. I told him that I could purchase heroin from the criminals for the accused. I told him that I will purchase from those persons who had huge stock of heroin with him. I informed the accused that I had detected a party with huge stock of heroin and could purchase heroin from them if I be given money for that purpose from the accused. He gave me rupees six thousand for this purpose. I purchased heroin from Phatan whose Dera was inside Mori Gate, for Rs.6,

000. Phatan told me that six thousand is small money for the heroin received by me and I promised to pay the balance on the following day. The balance was also six thousand. The Phatan gave me heroin bags Exh.P.5 to Exh.P.15 and I gave the same to Muhammad Aslam accused. I asked the accused to form a raid party to which I would lead in a day or two for recovery of the heroin from the Phatan from inside the Mori Gate. I was doing this all to take revenge from the accused. I approached S.S.P. and made false report against the accused stating that one Thanedar forced me to sell heroin on his behalf. I later on the same day gave the name of Muhammad Aslam accused as that Thanedar in order to seek revenge from him. I also informed the S.S.P. that heroin was lying with accused. I requested for protection of my life from the accused and the same was promised to me, reward was also promised to me. A raid party was formed I went with the same to P.S. Lahori Gate on 25-2-1993 at 4/4-30 p.m. Tahir Alam P.W. recovered bag of heroin Exh.P.5 to Exh.P.15 from the box of the accused. I felt satisfied on the arrest of the accused. After the recovery I went. home."

8. It may be pertinent to observe that the State counsel appearing on behalf of the prosecution before the trial Court did not challenge his such evidence but only brought certain facts in five lines as under:

"I did my matriculation in 1983. Now I have disclosed the truth under oath taken from me in the Court. It is incorrect to suggest that I have given concession to the accused as I have been won over by him." By not challenging the evidence given by the witness obviously the prosecution has embraced the version of the witness.

9. It may be pertinent to observe that the learned trial Court has dealt with the evidence of this witness in the words as under:

"Muhammad Latif P.W.2 is a previous convict and was challaned by the accused in some previous case who thereafter developed friendship with the accused in order to avenge his previous arrest at the hands of accused. And this friendship went so deep that the accused refused to disassociate himself from it despite being reprimanded by his S.H.O. Zulfiqar Ali P.W.7 as he has disclosed in his cross-examination. Muhammad Latif P.W.2 admits that he informed the S.S.P. and as a result the heroin was recovered from the accused which was purchased by the accused through him in the sum of Rs.6,

000. This witness admits that he did this all in order to avenge his arrest at the hands of the accused. The only impression I could gather from going through the entire statement of Muhammad Latif P.W.2 is that though he was not sincere to the accused yet the accused fell prey to him and started purchasing heroin through him in great bulk worth thousand of rupees and this huge bulk recovered from him proves beyond any shadow of doubt that it was not for the purpose of detection of crime as the stand taken by the accused."

10. The learned counsel for the appellant is indeed justified in saying that the learned trial Court had not properly assessed the evidence of P.W.2 Muhammad Latif. In support of his stand he has relied upon the cases reported in AIR 1931 Cal. 401 (Full Bench) Profulla Kumar Sarkar and others v. Emperor, 1973 PCr.LJ 334 Kaloo and 2 others v. The State, 1989 MLD 1708 Muhammad Luqman v. The State and PLD 1992 Kar. 39 Abdul Razzak Rathore v. The State. In the cases of Kaloo and 2 others v. The State, Muhammad Luqman v. The State and Abdul Razzak Rathore v. The State, the Courts have held that the evidence of hostile witness cannot be discarded wholly merely on the ground of his being declared hostile but they have to draw its own inference for what is its worth. In such situation to me the evidence of witness-Muhammad Latif essentially is material for the disposal of this appeal. The noteworthy circumstances of the case are that place of Muhammad Latif was raided by the appellant on 27-5-1992. A case was registered against him for offence under section 216, P.P.C. It is also an admitted fact that Muhammad Latif had developed pseudo friendship with appellant Muhammad Aslam. In such view of the fact the defence taken by the appellant gets full support from the evidence of P.W. Muhammad Latif. It thus can be said that two theories were produced before the Court one advanced by the prosecution and the other one by the defence. If these two theories are kept in juxtaposition the possibility of the defence version being true cannot be ruled out. Even otherwise it can be well said that a benefit of doubt has arisen in favour of the appellant. The cardinal principle of administration of criminal justice in such situation is that statement favouring the accused should be given more weight. In support of the above proposition the learned counsel for the appellant has placed before me cases reported in PLD 1976 SC 241 (Ghulam Muhammad v. Allah Yar and 2 others) and 1988 SCMR 637 (Ghazidino v. The State).

11. In such view of the facts I feel that the prosecution has not proved its case beyond reasonable doubt against the appellant. Thus, extending benefit of doubt in favour of the appellant I accept his appeal, set aside his conviction and sentences recorded against him by the learned trial Judge on 11-8-1993 and acquit him of the charge. He be set at liberty forthwith if not required in any other case. This constitutes the reasons of my short order, dated 25-1-1994. N.H.Q./869/FSC Appeal accepted.