2008 PLP 1978 (YLR)

ALI NAWAZ CHOWHAN, J.

Iftikhar Ahmad and Allah Dad appellants were convicted under section 6 of the Control of Narcotic Substances Act, 1997 by the learned Additional Sessions Judge, Sargodha vide judgment, dated 25-11-2002 in case F.I.R. No.170, dated 4-6-2001 registered at Police Station Jhal Chakian District Sargodha and sentenced to six months' R.I. each with a fine of Rs.5000 each, in default whereof to further undergo imprisonment for a period of one month each. They were given the benefit of section 382-B, Cr.P.C.

2. Briefly the prosecution case is that on 4-6-2001 at about 12-00 noon on a spy information Muhammad Masood Inspector along with other police officials apprehended the appellants and on their personal search 200 grams heroin was recovered from the Shalwar pocket of Iftikhar Ahmad and 250 grams opium was recovered from the right side pocket of his shirt and 160 grams heroin was recovered from the pocket of Shalwar of Allah Dad.

3. The prosecution to prove its case examined as many as four witnesses. Muhammad Akram Moharrir P.W. drafted formal F.I.R. Exh.PA/1 on the basis of complaint Exh.PA. He also deposed about the safe custody of the parcels containing heroin and opium in the Malkhana of the police station. Muhammad Khan 1213/C P.W.2 transmitted the sealed parcels said to contain heroin and opium to the office of Chemical Examiner Rawalpindi. Mukhtar Ahmad A.S.-I. P.W.3 is the witness of recovery memos. Exh.PB, Exh.PC, Exh.PD and Exh.PE. Muhammad Masood Inspector P.W.4 reiterated the contents of the F.I.R. and prepared the site plan Exh.PF. The learned D.D.A. after tendering the report of the Chemical Examiner Exh.PG closed the case for prosecution. The accused were examined under section 342, Cr.P.C. They denied all the allegations and recovery of narcotics. Both the accused made their statements under section 340(2), Cr.P.C. and also produced Basharat Ali DW-1 in disproof of the allegations. The accused closed their defence evidence after tendering F.I.R. No.138 Exh.D-1 and F.I.R. No.171 Exh. D. 2.

4. The following excerpts from the statement of Muhammad Masood Inspector (P.W.4) are relevant. "It is correct that the sealed parcel opium is not signed by me. I do not know whether Abdul Aziz had borrowed Rs.47000 from the accused persons for the pervi of the above said case registered against the brother of Abdul Aziz A.S-I. I do not know whether the accused party demanded for the return of above said amount and Abdul Aziz offered a Honda Motor Cycle in the exchange of above said amount. I do not know whether the accused party went to P.S. to get proposed motor cycle and that it was recovered in the F.I.R. No.138/2001 from Rustam Khan accused, and that at that time there was exchange of hot words between the accused Iftikhar Ahmad and Abdul Aziz A.S.-I. and consequently Abdul Aziz A.S.-I. injured Iftikhar accused with knife/blade and both the F.I.Rs. Nos.171 and 170 were registered against the accused at the instance of Abdul Aziz A.S.-I." In their statements under sec tion 342, Cr.P.C. the appellants pleaded their innocence whereas appellant Iftikhar repeated what he had suggested to the said Sub-Inspector. In support of the theory advanced the appellants produced Basharat Ali according to whom Abdul Aziz A.S-I. had taken loan from him which remained unpaid. Iftikhar appellant appearing as his own witness supported his version although he could not produce any receipt of the amount said to have been given to the said A.S-I. He went on to say that in connection with the demand for return of the amount a physical altercation had taken place with the A.S-I. and this led to the registration of a criminal case in which he had obtained his bail. Allah Dad appellant also came up with the same story.

5. The recovery is of 200 grams of heroin from one of the appellant i.e. Iftikhar Ahmad and 250 grams opium from Allah Dad along with 160 grams of heroin as well from him.

6. The possibility of planting the same is there. In such like cases it is rare to see people of the vicinity appearing as defence witnesses. In this case the defence witnesses supported the defence version and the plea taken up by the appellant. While in juxta position we have only the official witnesses. The police is infamous for planting narcotics against its adversaries in quantities shown as recoveries in the case. When it comes to believing under the circumstances of this case we feel that the testimony of public witnesses should be given weight in this case. We, therefore, giving the benefit of doubt to the appellants acquit them of the charge. Their appeal is thus accepted. N.H.Q./I-25/L Appeal accepted.