1998 PLP 1138 (SCMR)

MUNIR A. SHEIKH, J.

Leave to appeal is sought against the judgment dated I1-11-1996 of the Federal Shariat Court passed in Appeals Nos.34/P/1995 and 135/1/1995 filed by the respondents against their conviction and sentence recorded by the learned Additional Sessions Judge, Kohat through which the same were accepted, their conviction and sentence set aside and they were acquitted of the charges.

2. A case was registered on the basis of a Murasila (Exh.P.A/1) by Taj Min Ali, -F-1,O./S.H.O., Police Station Narcotics, Kohat on 30-12-1993 according to which--Group Leader Muhammad Iqbal Khan received information that a huge quantity of contraband was going to be smuggled through car bearing No.LOJ-9812 from Kohat to Punjab. After receiving the said information, the complainant alogwith Nizam Khan, SI and other police officials proceeded to near village Jerma at Bannu-Kohat Road and arranged Nakabandi. When the said car reached there at 19-00 hours it was signalled to stop. It was being driven by Sajid Hussain with Mst. Irshad Tabassam alongwith a young girl, namely, Attia sitting on the front seat. The car was taken to the Police Station. Narcotics and under the supervision of Group Leader, the tank was opened and two packets containing 10/1-2 Kgs. heroin were recovered from the same. One gram from each packet was separated and sealed into a parcel. Driving licence and other papers were taken into possession vide memo. and the respondents were apprehended. The remaining contraband was also sealed into a separate parcel. Murasila was drafted which was incorporated into formal F.I.R. After investigation. both the respondents were sent up for trial.

3. In support of its case, the prosecution examined four witnesses. P.W.I is Nizam Khan, S.H.O. who was member of the said raiding party which conducted Nakabandi. He is also witness to recovery memo. Exh.P.C. through which the said contraband and other items were taken into possession. P.W.2 is. Nisar Iqbal, S.H.O. Police Station Narcotics, Kohat. He recorded F.I.R. on receipt of Murasila. P.W.3 is Muhammad Salim Bhatti who was dealing in a business of rent-a-car, who deposed that he gave the said car on rent basis to Mst. Irshad Tabassam. He had made an F.I.R. against said Mst. Irshad Tabassam at Police Station, Ghalib Market, Lahore for misappropriation of the car. Later on, he came to know that the said car was in the custody of Narcotics police for transporting narcotics in it. P.W.4 is Taj Min Ali, S.H.O. Police Station Narcotics who is the complainant. He conducted Nakabandi alongwith P.W.1 and other officials near village Jarma at Bannu-Kohat Road. He effected the recovery of said contraband from the car which was being driven by Sajid Hussain with Mst. Irshad Tabassam and a small baby sitting with her on front seat. He investigated the case and submitted the challan against the respondents. According to the report of the Chemical Examiner, the sample revealed that it contained heroin which could be used to cause intoxication.

4. The respondents-accused in their statements under section 342, Cr.P.C. denied the allegations and pleaded innocence. Mst. Irshad Tabassam, however, in answer to various questions stated as under.-- "The allegations are wrong. I was falsely involved in this case. Nothing was recovered from me neither from the motor car at the time of checking. 1.0. Taj Min Ali managed the false recovery due to my complaint of Zina-bil-Jabr filed by me against him." Sajid Hussain, respondent also stated that nothing was recovered either from the car or from his person and he had been falsely involved in the case.

5. The trial Court through judgment dated 15-6-1995 held that the case against the respondents had been established beyond reasonable doubts, therefore, they were convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to 12 years' R.I. each with a fine of Rs.50,000 each in default whereof to further undergo 2 years' R.I. Accused Sajid Hussain was also awarded punishment of whipping numbering ten stripes. They were also convicted under Article 4 of the said Order and sentenced as under Article 3 above.

6. The appeals filed by the respondents have been accepted by the Federal Shariat Court through the impugned judgment dated 11-11-1996 against which leave to appeal has been sought. .

7. The Federal Shariat Court took into consideration that case property was not produced during the trial. It is an admitted fact that Mst. Irshad Tabassam accused was carrying with her a little baby which a person while committing such an heinous offence normally would not do. Heroin was not recovered from the car at the spot where it was apprehended. According to the prosecution case, the car was taken to the Police Station where the recovery was made from the ,car. No witness from the locality was made to witness the said recovery for which there was no explanation. The statements of the accused persons that, in fact, no recovery was made either from the car or from their person had force. The Federal Shariat Court also noticed that P.W.2 who was S.H.O., Police Station Narcotics, Kohat who recorded the F.I.R. admitted that neither the case property nor the vehicle was produced before him, though according to him they were available but were not handed over to him as case property to be kept in safe custody. There is nothing on the record as to where the case property had been deposited. The samples from the recovered contraband were taken on 30-12-1993 which were allegedly despatched by Murtaza Khan for chemical examination who was not produced. These samples were received by the Chemical Examiner on 27-3-1994. There is no explanation IC available on the record as to where these samples remained from 30-12-1993 to 27-3-1994.

8. After examining the record and in particular the abovementioned defects in the case of the prosecution, the Federal Shariat Court in the impugned judgment recorded a finding that the prosecution had failed to establish its case beyond reasonable doubt against the respondents. The appeals were accepted and their conviction and sentence recorded by the trial Court set aside as stated above.

9. We have been taken through the evidence by the learned counsel for the petitioner. After considering the same in detail, we are not disposed to take a different view from the one taken by the Federal Shariat Court. No misreading or non-reading of any material piece of evidence has been pointed out, therefore this petition has no merits which is accordingly dismissed and leave to appeal refused. N.H.Q./S-49/S Leave refused