1987 PLP r (PCRLJ)

FAKHRUDDIN H. SHAIKH, J.‑‑This is an appeal from the judgment of Mr. Zaheer Ahmed Khan, Sessions Judge South, Karachi, dated 28th September, 1986, whereby the appellant was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to suffer R.I. for four years, whipping numbering five stripes and to pay fine of Rs.2,000 (Rupees two thousand) or in default of payment of fine to further undergo R.I. for six months.

2. The allegation against him was that on 4‑5‑1986 at‑2‑30 p.m. he was found in possession of 700 grams of heroin in front of Happy‑Day Hotel, Karachi.

3. Mr. Sher Ali Shah Shirazi, F.I.O. of Narcotics Control Board, Karachi, received spy information that the appellant was possessing heroin. He collected two mashirs namely, Muhammad Saleem and Imdad Ali and proceeded to Happy‑Day Hotel. It is alleged that the appellant was standing in front of the Happy‑Day Hotel. He was arrested and his person was searched. It is further alleged that a packet containing 700 grams of heroin was secured from the pocket of his pant.

4. Mr. Sher Ali Shah Shirazi recorded F.I.R., sealed the heroin and sent up the case for trial. Two small portions of heroin were sent as sample to the Chemical Examiner, whose report is positive.

5. In support of the prosecution case there is evidence of P.W.1 Muhammad Saleem, P.W.2 Imdad Ali and P.W.3 Mr. Sher Ali Shah Sherazi. They have deposed generally about recovery of a packet weighing 700 grams from the front pocket of trouser of the appellant.

6. There are several contradictions in the evidence of the above three witnesses which have rendered the prosecution case doubtful. We had sent for property and examined the bulk of about 700 grams and found that it was not possible to keep this much mass of the bulk in the pocket of a pant or trouser. The trouser or the pang was not secured in order to enable the Court to ascertain whether, the bulk involved in this case would be put in the pocket.

7. So far as P.W.1 Muhammad Saleem is concerned, he has stated that he was picked up from the footpath opposite Regal Cinema. This version is not supported by P.W.2 Imdad Ali and P.W.3 Mr. Sher Ali Shah Shirazi, who had deposed that Muhammad Saleem was picked up from a place near the shop of Sanaullah, which is situated about, 60/70 yards from Happy‑Day Hotel. According to P.W.1 Muhammad Saleem, the place from where he was picked up was one furlong away from the Happy‑Day Hotel, in front of which the appellant is said to be standing. Due to this material discrepancy even the trial Court has not believed Muhammad Saleem.

8. So far as P.W.2 Imdad Ali and P.W.3 Sher Ali Shah Shirazi are concerned, there are discrepancies on some important points Imdad Ali stated that scale for weighing to packet of heroin was sent for from a 'Thelawala', but in cross‑examination he stated that the party had walked to the 'Thelawala' for 'turazo'. Imdad Ali P.W.2 has given varying versions about the weighing scale. In examination -in‑chief he stated that the scale was sent for from a 'Thelawala'. It is not known whether the scale was sent for from a 'Thelawala' or the raiding party had itself gone to the 'Thelawala' and weighed the quantity there.

9. From the F.I.R. it would appear that Mr. Sher Ali Shah Shirazi was in his office on 4‑5‑1986 when he had received the spy information. But in his deposition he stated that he was on patrol duty and when he reached Zaib‑un‑Nissa Street he received spy information that a person standing in front of Happy‑Day Hotel was in possession of heroin. The learned counsel for the State was unable to reconcile these varying versions about the recovery. We, therefore, hold that the case against the appellant has not been proved beyond a reasonable doubt.

10. Consequently we allow the appeal, set aside the conviction and sentences and direct that the appellant shall be released forthwith if not required in any other case. S.A. /365/F‑Sh. Appeal accepted.