1990 P Cr (PLP)

KAMAL MUSTAFA BOKHARY, J.‑‑‑ Mubarik Ali son of Mehmand Bakhsh, Fateh Muhammad son of Mehar Din, Muhammad Arif son of Ahmad Din and Karosh son of Masihullah were convicted by Syed Ali Aqdas Shahzad, Magistrate with Section 30 powers, Lahore, under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, on 10‑7‑1988, for possession of 10 Kilograms of heroin in all. Each of them was sentenced to rigorous imprisonment for seven years, to whipping numbering 15 stripes and to fine of Rs.10,000 or in default to suffer simple imprisonment for one year.

2. The convicts have filed four separate appeals (Criminal Appeals No.241/L of 1988, 248/1, of 1988, 253/1, of 1988 and 260/1, of 1988) against their convictions and sentences. This judgment will dispose of all these appeals since it has arisen out of the same judgment of the trial Court.

3. The prosecution case as disclosed in F.I.R. lodged on the complaint of Mukhtiar Hussain (P.W.) Sub‑Inspector, Police Station Naulakha, Lahore, was that on 25‑11‑1987 at 6‑30 a.m. under instructions of the S.H.O. he headed a raid party which comprised two Sub‑Inspectors, two Assistant Sub‑Inspectors, six Police Constables and accompanied by a public witness, Muhammad Munshi, as well as Ahmad Faheem accused in another case, he reached bus stop of Chowk Boharwala, Lahore, in an official Jeep. He found the appellants present at the bus stop for going to Hadiara and apprehended them on the pointation of Ahmad Faheem accused in custody. Karosh appellant was carrying a bag in his right hand which contained three packets of heroin weighing one kilogram each, Mubarik Ali appellant had a bag in his right hand containing three packets of heroin weighing one kilogram each, Muhammad Arif appellant was having a Purna in his right hand which contained two packets of heroin weighing one Kilogram each and Fateh Muhammad appellant was found carrying two packets of heroin weighing one kilogram each wrapped in a cloth which was carried by him in his right hand. All the heroin was taken into possession and was sealed into parcels after preparing samples of one gram from each of the packets which samples were separately sealed into parcels. A formal F.I.R. was registered at Police Station Naulakha, Lahore, on the same day at 6‑40 a.m. After investigation the appellants were challaned in Court.

4. At the trial prosecution examined Muhammad Munshi, a witness from public, Muhammad Farooq A.S.I. and Mukhtiar Hussain, Sub‑Inspector, all members of the raid party to prove recovery of heroin from the appellants. Positive report of the Chemical Examiner was tendered in evidence which disclosed that the sample parcels contained heroin. Arif Hussain, H.C. had kept parcels in the Malkhana and Abdul Hameed, F.C., had taken parcels to the Chemical Examiner.

5. The appellants denied recovery of heroin and allegations against them. They stated that the police had brought them from their houses and had falsely involved them in this case. Mubarik Ali and Muhammad Arif appellants stated that they were arrested on 19‑11‑1987 from village Kahna. Both of them appeared as their own witnesses in disproof of the allegations against them. They also examined D.W s. 1 to 9 in support of their defence plea showing that they were brought by the police from village Kahna and nothing was recovered from them. According to them police involved them because they refused to meet their illegal demands for paying money for their release. Fateh Muhammad stated that he was present in his house in village Narwar near Hadiara attending Qul ceremony of his mother, on 23‑11‑1987, when police brought him and falsely involved him at the instance of relations of Mukhtar Hussain P.W., Sub‑Inspector. In support of his plea he made a statement on oath and also examined D.W.10 to D.W.13 to prove that no heroin was recovered from him. Karosh stated that he lived in a portion of House No.109/P, Gulberg, Lahore from where the police brought him on suspicion and falsely involved him because the appellant threatened to proceed against them for false involvement in the case. He also appeared and made a statement on oath that no heroin was recovered from him. He examined Shah Rahim, Abdul Hameed and Ahmad Faheem accused as well as Shaneel Shaheen (D.W.1 to D.W.4) who deposed that police brought Karosh from his house and no heroin was recovered from him. 6 On behalf of Mubarik Ali, appellant, learned counsel argued that Muhammad Munshi (P.W.1), a witness from public, was a liar and his testimony be ruled out of consideration while the remaining two recovery witnesses were police officials whose testimony was not confidence inspiring. It was submitted that the defence plea was plausible and the Assistant Commissioner in an inquiry had exonerated Mubarik Ali. Learned counsel for Fateh Muhammad, appellant, contended that Muhammad Munshi (P.W.) had exonerated Fateh Muhammad and provisions of section 103, Cr.P.C. had been violated because the prosecution failed to examine two respectables of the locality to prove recovery from Fateh Muhammad, appellant. Learned counsel for Muhammad Arif, appellant, submitted that Muhammad Munshi (P.W.) did not name Muhammad Arif and refused to identify him in Court, that Muhammad Farooq (P.W.) also did not mention name of Muhammad Arif as accused due to which recovery from him was doubtful. It was submitted that uncorroborated testimony of Mukhtar Hussain who was alleged to have demanded Rs.2,000 as illegal gratification be not relied upon. Learned counsel who appeared for Karosh appellant, stated that his client was not represented before the trial Court at the early stage of trial due to which the prosecution witnesses could not be effectively cross‑examined resulting in prejudice to the accused particularly because Karosh did not kilo", the language of the Court being Iranian. It was also submitted that his defence plea was plausible as it had been proved that Karosh was arrested from his house on suspicion.

7. We were taken through the evidence and have perused it with the assistance of learned counsel for the appellants and for the State. The prosecution examined Muhammad Munshi (P.W.1) from public, Muhammad Farooq (P.W.4j, A.S.I,, and Mukhtar Hussain (P.W.1), Sub‑Inspector, to prove recovery of three kilograms of heroin from Mubarik Ali, two kilograms of heroin each from Fateh Muhammad and Muhammad Arif and three kilograms of heroin from Karosh, appellants. Muhammad Munshi did not fully support the prosecution and made A concessions in favour of the appellants. He deposed that heroin was recovered from four persons but he did not know their names and identified only two of them, namely. Mubarik Ali and Karosh, appellants. After perusal of his testimony we have reached the conclusion that he is a liar and rule his testimony out of consideration. Mukhtiar Hussain was leader of the raid party. He was posted as Sub‑Inspector at Police Station Naulakha. He deposed that on 25‑11‑1987, at 6‑15 a.m. the S.H.O. of that police station made over to him custody of Ahmad Faheem accused in a different first information report No.575/87 registered at the same police station under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. He took him to bus stop Chowk Bohar Wala, Lahore. On the pointation of Ahmad Faheem he apprehended the appellants who were then standing near the wall of Railway Rest House. From the possession of Karosh, appellant, he took over a navy blue colour bag which contained three packets of heroin weighing one kilogram of heroin each. He separated one, gram heroin from each of the packets and sealed it into parcels. He then secured from colour containing three packets of heroin weighing one kilogram each. Three sample parcels of one gram from each packet were also separately sealed. Thereafter, on search of Muhammad Arif he recovered two packets of heroin weighing one kilogram each wrapped in a Parnah (piece of cloth). a gram heroin from each packet was separated and was made into sealed parcels. On the search of Fateh Muhammad he took into possession two packets of heroin weighing one kilogram each which were packed into a Parnar and sample parcels of one gram each from the packets were prepared and sealed A recovery memo., Exh. P.C., was prepared. Muhammad Farooq, A.S.I. who was a member of the raid party, corroborated him. Both of them were cross‑examined at length but nothing material could be brought out in favour of the appellants. The discrepancies pointed out in their testimony are not on any material point and are likely to occur with passage of time. The officials are competent witnesses in law. Both of them had no ill‑will against the appellants to implicate them or substitute them for the real culprit. The appellants were apprehended by them on the disclosure of Ahmad Faheem and in a successful raid 10 kilograms of heroin was recovered from the four appellants who were found standing on a bus stop at Chowk Bohar Wala near Railway Station, Lahore for taking heroin to a border town. We have considered the contentions raised before us and find no force in it. The defence plea was not plausible. The trial Court rightly rejected it. After perusal of evidence we find that prosecution had established its case against the appellants beyond reasonable doubt and trial Court rightly convicted them. In the matter of sentence no doubt lenient view was taken by the trial Court but it did not give them benefit under section 382‑B, Cr.P.C. We do not consider it lit to enhance their sentences in the circumstances of present case.

8. For the foregoing reasons we find no merit in the appeals and dismiss all the four appeals. S.A./510/FSC Appeals dismissed.