1993 PCr (PLP)

Muhammad Akhtar, Addl. A.-G. with Sh. Asghar Ali for the State. Date of hearing: 25th October, 1992. Khizer Hayat Goraya, Excise Inspector, Toba Tek Singh was on patrol duty on 2-3-1989 near Bridge Lundo, Kamalia, Rajana Road when he received information that one Tasawwur Ijaz alias Tasra resident of Chak No.185-GB of Police Station Rajana and Muhammad Afzal appellant herein resident of Chak No.250-GB were selling heroin in the house of the former. The said Excise Inspector arranged a raiding party and raided the house of the aforesaid Tasawwur Ijaz at about 11-45 hours and recovered heroin weighing 25 grams from the front pocket of shirt of the appellant. He handed over the appellant to the police as well recovered narcotics and the complainant whereupon investigation was carried out by the S.H.O., Police Station Rajana and appellant was sent up for trial before the Sessions Judge, Toba Tek Singh. The latter charged the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 to which the appellant pleaded not guilty and claimed trial. After the conclusion of the trial the learned Sessions Judge convicted the appellant under Article 4 of the Prohibition Order and sentenced him to undergo rigorous imprisonment for 5 years, to suffer 30 stripes and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for 2 years. The appellant has challenged his conviction and sentence by the appeal in hand.

2. The appellant and the aforesaid Tasawwur Ijaz are residents of two different villages which are 6/7 miles apart from each other. It looks very strange that both the said persons were selling heroin at one place. It is also not understandable as to why the aforesaid Tasawwur Ijaz would allow the appellant to sell heroin in his house.

3. The complainant Excise inspector was present at a place which is about 40 miles away from the placed occurrence and they must have taken at least 1 to 2 hours to reach the said place and they had to search a premises. In spite of that the complainant Excise Inspector did not care to get a search warrant from a Magistrate. Since the place of occurrence was very far away, there was no apprehension either of the absconding of the accused or the destruction of the case property. In such circumstance it was compulsory for the complainant to obtain a search-warrant. It is an illegality and a flagrant violation of the law. The Police and Excise Officials raided the aforesaid house and entered therein without any legal authority.

4. The meagre quantity of heroin recovered allegedly from the possession of the appellant has also created a doubt about its actual recovery. It could have been very easily planted against the appellant. There does not appear to be any reason as to why the appellant should be selling heroin in the house of Tasawwur Ijaz when allegedly the other person was also doing the same job in his own house.

5. The prosecution had failed to produce evidence of such a nature which could bring home the guilt to the accused without any doubt. Consequently the appeal is accepted. The conviction and sentence of the appellant are set aside and he is acquitted of the offence for which he was convicted and sentenced. He is present on bail. His bail bond stands discharged. N.H.Q./773/FSC Appeal accepted.