1998 PLP 1067 (MLD)

Muhammad Arshad, constable who had registered forma F.I.R Exh. .P D/ 1 and had kept the parcels in the mall Khana delivered to him by Nisar Ahmad A.S.I. and had also despatched two parcels out of them to the office of the Chemical Examiner through Muhammad Jamil F.C appeared as P.W.1 and deposed those facts on oath.

4. Nisar Ahmad A.S.I. who had conducted the raid, effected recoveries, got the case registered, investigated the same and got the challan submitted to Court through S.H.O. appeared as P.W.2 and deposed those facts. During cross examination he admitted that two currency notes of hundred rupee denomination each (Exh. P-1/1-2) recovered from the appellant did not bear his signature. While stating so he volunteered that the currency rotes which he had delivered to Asif, bore, his signatures. However, he denied the suggestion that he had not sent Asif as a fake customer and that the whole story was a fabricated one. The suggestion that no recovery had been effected from the appellant and that he had challaned the accused in this case at the instance of his colleague Muhammad Anwar, A.S.I. was also denied by him. He stated that he did not know Mst. Shahnaz alias Shano. While stating that Muhammad Anwar A.S.I. was not related to him, he admitted that he had remained posted as A.S.I. C.I.A. at Mumtazabad Police Station. He expressed ignorance about Mst. Shahnaz alias Shano having filed writ petition in the High Court for registration of case against said Muhammad Anwar A.S.I. He also expressed ignorance that the accused in this case had forbidden Anwar A.S.I. from visiting Mst. Shahnaz alias Shano and that Muhammad Anwar was annoyed with him due to that.

5. Muhammad Asif P.W.4 stated that he had accompanied the raiding party headed by Nisar Ahmad, A.S.I. He stated that Nisar had given him two hundred rupees notes for purchasing heroin from the accused and that when he had delivered the notes to the accused and he was handing over heroin weighing five grams to him. Nisar Ahmad A.S.I. along with other members of the raiding party had reached and arrested the accused. He also stated that police had recovered currency notes of Rs.200 (Exh.P.l/1-2) alongwith five grams of heroin. He added that 265 grams of heroin was also recovered from the accused. According to him some more amount was also recovered from the pocket of the accused. During cross-examination he denied the suggestion that he was a stock witness. He admitted that the members of the raiding party were previously known to him. He stated that he did not know Mst. Shahnaz alias Shano. He expressed ignorance that Anwar A.S.I. used to visit Mst. Shahnaz alias Shano and committed zina with her. He also expressed ignorance that case was registered against said Anwar A.S.I. He denied the suggestion that Nisar A.S.I. had colluded with Anwar A.S.I. to involve the accused falsely in this case and that he was also a party to that. He denied the suggestion that nothing was recovered from the accused.

6. Muhammad Jamil constable who was accompanying the raiding party headed, by Nisar Ahmad, A.S.I. appeared as P.W.3. He stated that the A.S.I. had recovered two currency notes of Rs.200 denomination each from Tariq Iqbal. He stated that before the recovery the A.S.I. had given two notes of one hundred rupee denomination each to a person for purchasing heroin from him. He also stated that he had taken the samples of the heroin to the office of the Chemical Examiner and delivered the same to the office of the Chemical Examiner after getting objection removed. During cross-examination he admitted that he had appeared as a witness in many narcotics cases. He admitted that a case was registered against him and Rana Muhammad Anwar, A.S.I. C.I.A. for helping the narcotics paddlers and that he was arrested in that case. and lodged in jail. He added that he was released on bail. He expressed ignorance as to where from the A.S.I. had got

Rs.200 which he had given -- to the fake customer. Positive reports Exhs. PF and PF/1 were also tendered in evidence.

7. The appellant during statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question "Why this case against you and why the P.Ws. have deposed against you"? "The case against me is false. The heroin has been planted upon me. In fact it was planted upon me by Nisar Ahmad A.S.I. on the asking of Muhammad Anwar A.S.I. The true story which led to the registration of this case against me is that one Mst. Shahnaz alias Shano who is my close relative was married to Muhammad Ashiq who was a heroin addict. Mst. Shahnaz, therefore, instituted suit for dissolution of marriage and deputed me to pursue the case. In the meanwhile one Muhammad Ali S.I. arrested Muhammad Asif the son of Mst. Shahnaz aforesaid, who managed his release through the efforts of Muhammad Anwar A.S.I. In this way Muhammad Anwar started visiting Mst. Shahnaz, and the later when complained to me about the conduct of said Muhammad Anwar A.S.I. I requested him not to visit Mst. Shahnaz upon which Muhammad Anwar rushed grudge and started pressuring me I, therefore, was forged to institute a Writ Petition No.4508 of 1995 against him and his colleague in the Hon'ble Lahore High Court Multan Bench which caused further annoyance to said Muhammad Anwar. Said Muhammad Anwar in order to take revenge got me involved in this case. Mst. Shahnaz had also instituted a writ petition against said Muhammad Anwar because the latter used to commit zinc-bil jabs` with her and that upon her move a case F.I.R. No.91 of 1995 was also registered under the offence of Zina (EOH) 1979 with Police Station Old Kotwali. Muhammad Anwar, A.S.I. himself deals in selling and trafficking the narcotic and for that reason case F. I. R. No. 197 of 1995 was also registered against him with Police Station Loharigate Multan." He also tendered in evidence Exh. DA, copy of writ petition, Exh. DB, copy of another writ petition, Exh. DC, copy of order dated 29-9-1994 and Exh. DD, copy of F.I.R. No.91 of 1995, Exh. DE copy of order of remand dated 3-4-1995. Exh. DD is copy of F.I.R. which was registered at the statement of Mst. Shahnaz alias Shano against Muhammad Anwar, A.S.I. under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 3-4-1995. Exhs. DA Exh. DB are the copies of the writ petitions filed by Mst. Shahnaz alias Shano for registration of case against Rana Muhammad Anwar, A.S.I. under the offence of Zina (Enforcement of Hudood) Ordinance, 1979.

8. I have gone through the record and considered the contentions of the learned counsel for the parties.

9. In this case appellant had taken up the stance at the trial that Muhammad Anwar who had remained posted as A.S.I. C.I.A. Police Station Mumtazabad was inimical to him because he had stopped him (ASI) from paying clandestine visits to the house of his relative Mst. Shahnaz alias Shano and that Mst. Shahnaz who used to be forced by Muhammad Anwar A.S.I. for commission of zina had filed writ petitions for registration of case against Muhammad Anwar A.S.I. and as a result of the same a case under the Offence of Zina was registered against him. He had produced in defence copies of the writ petitions as well as copy of F.I.R. registered against Muhammad Anwar A.S.I. on the order of High Court.

10. Although Nisar Ahmad A.S.I. who had arrested the appellant and challaned him in this case on being questioned during trial had denied any special links with Muhammad Anwar A.S.I. but the appellant succeeded in bringing on record a link. In that Muhammad Jamil constable who was stated to be member of the raiding party and was named as a P. W and had appeared as P.W.3 admitted that he had served with Muhammad Anwar A.S.I., and that both of them had been proceeded against together and that a case had been registered against both of them. That being so the stance of the appellant cannot be thrown away all together. This observation does not amount to holding that the statements of the witnesses stated discarded merely on that account. However, in view of the above background the statements of these witnesses reads more careful assessment.

11. The important piece of evidence for proving allegation of commission of offence under Article 3 of the said Order are the statements of Nisar Ahmad ASI, P.W. 2 and Asif Awan fake customer P.W.4. Nisar Ahmad had stated that he had given two notes of hundred rupee denomination each after putting his signatures to Asif Awan (P.W.4) for passing on the same to the accused for purchasing heroin. Similar statement was made by P.W.4. The notes of hundred rupee denomination each alleged to have been recovered from the pocket of the appellant did not bear the signatures of the A.S.I. That being so, the only and the important link of the commission of offence under Article 3 of the said order p is not only missing but the non recovery of those notes in a way contradicts the claim of P.W.2 as well as P.W.4 that those notes had been passed on to the appellant and on receipt of those notes he had handed over a packet of five grams of heroin to Asif. There is no allegation that the appellant had thrown away or changed the notes bearing signatures of the A.S.I. That being the position it would not be in the interest of safe administration of justice that conviction of the appellant under Article 3 of the said order is maintained.

12. The statement of P.W.2 that 13 packets of heroin were recovered from the possession of the appellant, and he had been caught on being seen passing on a packet of heroin to Asif after receiving the money handed over to him by A.S.I. and that the said packets joined together weighed 265 grams of heroin is only partly corroborated by P.W. 4, in that he did not say that 13 parcels were recovered from the appellant. All he stated was that 265 grams of more heroin was recovered from the appellant and the same was taken into possession. Statements of both these witnesses i.e. P.W. 2 and P.W.4 stands squarely contradicted Muhammad Janul constable, P.W.3. Muhammad Jamil, in all, stated, that the A.S.I. had given Rs.200 to the fake customer for going to the appellant and purchasing heroin from him and that soon thereafter he was caught and Rs.200 were recovered from him. He did not say that the appellant after receiving Rs.200 had passed on heroin to Asif or that 265 grams of heroin was found in possession of the appellant and the same was also taken into possession by the A.S. I. This is a v6ry material contradiction.

13. Muhammad Jamil was a serving police constable. He had been appearing as a witness in any other narcotics cases. He would have known what type of statement he was supposed to make. He was not declared hostile. No permission even was sought from the court to cross-examine him. No request was even made for re-examining him. The evidence of recovery of heroin alleged to have been given by the appellant to Asif and the evidence of recovery of more heroin weighing 265 grams becomes very doubtful and not worth safely placing reliance upon.

14. Keeping in view the stance about the inimical posture of the Police witnesses discussed in the earlier part of the judgment, I do not feel it safe to P place reliance upon their testimonies particularly when there are wide discrepancies and insurmountable inconsistencies in their statements. For all the reasons noted above, grave doubts have arisen in my mind about the prosecution case The appeal is, therefore; allowed. The appellant is acquitted by way of grant of benefit of doubt. He shall be set at liberty forthwith if not required in any other case. N.H.Q:/1167/FSC Appeal accepted.