1994 P Cr (PLP)

Rao Khalil Ahmad Khan for Appellant. Malik Muhammad Nusrat Mehal for the State. Date of hearing: 26th April, 1994. Rab Nawaz Khan, A.S.I. of Anti-Narcotic Staff, Sargodha alongwith some police officials had laid a picket in War Colony, Sargodha on 9-2-1993. At about 16-15 hours he received information that Ghulam Ali appellant herein, was present in a vacant plot opposite his house in Block "C" War Colony, Sargodha and was selling Charas and opium. Thereupon the said A.S.I: alongwith the police party went near Block "C". F.C. War Iqbal No.868 was present in the police party in civilian clothes. He was given a currency note of Rs.50 carrying signatures of the said A.S.I. and was sent to the appellant as a fake purchaser. The latter after purchasing Charas from the appellant raised his right hand as a signal whereupon the police party raided the spot and apprehended the appellant. After the personal search of the latter one plastic bag containing Charas and opium was recovered which was lying in the lap of the appellant. It was taken into possession. The weight of Charas was 1,800 grams while that of opium was 250 grams. The said A.S.I. also recovered Rs.100 from the right side pocket of shirt of the appellant wherein the signed currency note of Rs.50 was also recovered. The said A.S.I. separated 12 grams of opium from the bulk and 50 grams from the Charas as samples for chemical analysis and prepared different parcels. The Charas which was purchased by the fake purchaser was also handed over to the A.S.I. and it came to be 20 grams. The A.S.I. prepared parcels of the same as well. The complainant then sent written Murasila, the samples and the bulk' narcotics and the appellant to Police Station Urban Area, Sargodha for registration of the case.

2. After investigation the appellant was sent up for trial before Mr. Ijaz Hussain Baloch, Magistrate 1st Class, Sargodha who charged him under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, to which he pleaded not guilty and claimed trial.

3. After the conclusion of the trial the learned Magistrate convicted the appellant under Article 3 of the Prohibition Order and sentenced him to undergo rigorous imprisonment for 2-1/2 years, to suffer 10 stripes and to pay a fine of Rs.10,000 or in default to further undergo simple, imprisonment for 3 months. The convict has challenged his conviction and sentence by the appeal in hand sent from jail.

4. I have minutely perused entire record of the case with the assistance of the learned counsel for the parties and have also heard them. The impugned judgment will show that the learned Magistrate accepted the prosecution evidence regarding fake purchase of Charas from the appellant and convicted and sentenced him for the said offence whereas the appellant was acquitted of the offence under Article 4 of the Prohibition Order. In so far as the evidence regarding fake purchase is concerned, there was brought on the record only the statement of War Iqbal, Foot Constable as P.WA He stated that he approached the appellant and purchased Charas 20 grams from him for Rs.50 and gave him the marked currency note which was given to him by complainant Rab Nawaz, A.S.I. but no evidence was brought on the record to prove that any person had seen this witness purchasing any narcotic from the appellant. It was his oral word which was believed by the learned Magistrate. It also transpires that the recovery of the marked currency note from the appellant also weighed much with the learned Magistrate for arriving at the conclusion that the appellant was a narcotics peddler. There was no independent witness of circumstance of purchase of Charas from the appellant by P.W.4 Zafar Iqbal, F.C. He being a police official, his testimony about fake purchase cannot be accepted. No doubt a police official can be a competent witness of recovery of any narcotic from the personal possession of an accused but a fake purchaser police official cannot be accepted as an eye-witness of the allegation of sale of any narcotic by an accused. Actually this practice tantamounts to first luring any person to commit an offence and then to catch him for the same 13 accusation. The testimony of a police official cannot be given any legal weight in respect of purchase of any narcotic as a fake purchaser from any accused. There must be produced some independent corroborative evidence about this allegation.

5. The learned counsel for the appellant also contended that the appellant had submitted an application to S.S.P., Sargodha on 2-2-1993 against the complainant Rab Nawaz, A.S.I. complaining that the latter had forcibly entered a house on 30-1-1993 in the Mohalla and had maltreated and insulted the female inmates. His contention was that the said A.S.I. had fabricated a false case against the appellant seeking personal vendetta. Mark "A" is a photo copy of the said application and there are reasons to believe that the complainant initiated the case against the appellant in retaliation.

6. The learned State counsel had no point to urge in this respect. On the contrary he suggested that the conviction of the appellant under Article 3 of the Prohibition Order be converted into conviction under Article 4 thereof on the ground that more narcotics were also recovered from the possession of the appellant after his personal search by the police party. This contention can also not be accepted for the simple reason that the appellant was also 'charged for an offence under Article 4 of the Prohibition Order but since he was not convicted and sentenced for the same it would mean that he was acquitted of that charge and as such in the absence of an appeal against acquittal for the said offence he could not be convicted and sentenced for an offence under Article 4 of the Prohibition Order. It would be seen that the learned Magistrate did not discuss the prosecution evidence produced regarding charge under Article 4 of the Prohibition Order, which would mean that he did not believe it.

7. For the aforesaid reasons this appeal is accepted. The conviction and sentence of the appellant recorded on 13-9-1993 by the learned Magistrate 1st Class, Sargodha is set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. N.H.Q./895/FSC Appeal accepted.