1993 P Cr (PLP)

Muhammad Taqi Khan for Appellant. Muhammad Akhtar, Addl. A.-G. with M. Saleem Shad for the State. Date of hearing: 10th March, 1993. This appeal is directed against the judgment, dated 1-11-1992 passed by the learned Section 30 Magistrate, Sheikhupura, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to suffer R.I. for two and half years, fifteen stripes and fine of Rs.2,500 in default to undergo S.I. for three months more.

2. It is case of the prosecution that on 27-8-1990 P.W.1 Muhammad Riaz succeeded in purchasing heroin for amount of Rs.20 from the appellant. Thereafter, a raid was conducted on the appellant by P.WA Muhammad Umar Farooq, A.S.I. From his possession 24 grams of heroin was recovered. Recovery memo. was prepared accordingly. F.I.R. for the offence was registered at Police Station `A' Division, Sheikhupura. The material was sent to the Chemical Examiner, whose report is in positive. After usual investigation the appellant was challaned to face trial before the Court. The case came up for trial before the Court of the learned Section 30 Magistrate, Sheikhupura, where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined P.W.1 Muhammad Riaz, Constable, fake purchaser, P.W.2- Abdul Sattar, Constable, who received the parcel on 28-8-1990, P.W.3 Ghulam Shabbir, he handed over the parcel to P.W.2 Abdul Sattar, P.W.4 Muhammad Umar Farooq, A.S.I., the head of the raiding party and P.W.5 Zahid Ghani, Excise Inspector, member of the raiding party.

3. In his statement recorded under section 342, Cr.P.C. the appellant denied the allegation and canvassed innocence. However, he examined D.W.1 Basharat All Butt in his defence. The learned trial Magistrate did not believe his defence version and while relying on the prosecution evidence convicted and sentenced him as mentioned hereinabove. Hence this appeal.

4. Mr. Muhammad Taqi Khan, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate-General with Mr. M. Saleem Shad, Advocate, appeared for the State.

5. With the assistance of the learned counsel for the parties I have gone through the evidence produced by the prosecution, the statement of the appellant, defence witness and the judgment passed by the learned Magistrate. The peculiar circumstances of the case' are that the witnesses produced by the prosecution are not clear as to where the contraband material remained from 28-8-1990 to 9-9-1990. I have gone through the five witnesses of the prosecution. They are silent in respect of the same. The entire material has been sent but only the sample, hence the unexplained delay in sending the material to expert cast a doubt in my mind. The learned State Counsel has candidly conceded that the Chemical Examiner's Report cannot be relied upon. In such view of the fact I am inclined to accept the appeal, set aside the Conviction and sentences of the appellant recorded by the learned trial Magistrate on 1-11-1992 and acquit the appellant of the charge. He be set at liberty forthwith if not required in any other case. The appeal is disposed of accordingly. N.H.Q./813/FSC Appeal accepted.