1992 PLP 1079 (MLD)

Appellant, Aurangzeb, is sentenced to undergo R.I. for four years with ten stripes and fine of Rs. ten thousand in default to suffer R.I. for six months more.

2. Appellant, Mst. Inayat Bibi, is sentenced to undergo R.I. for two years and two months with two stripes and fine of Rs. one thousand, in default to suffer R.I. for one month more.

3. Briefly the facts of the prosecution case are as under:‑ That on 29‑11‑1990, Ghulam Akbar, S.I. of Police Station Gujrat received spy information that Aurangzeb was selling heroin. He was apprehended at 2‑25 p.m. and 95 grams of heroin was secured. The case was registered as Crime No.313/90. On same day i.e. 29‑11‑1990 at 4‑15 p.m. Ghulam Akbar, S.I. got information that one woman was selling heroin near High School. Mst. Inayat Bibi was apprehended and 60 grams of heroin was recovered. A case Crime No.315/90 was registered. After investigation both accused, namely, Aurangzcb and Mst. Inayat Bibi were sent up for trial and convicted. Aurangzeb and Mst. inayat Bibi were tried separately by Sessions Judge, Gujrat for the offences punishable under Prohibition Order, 1979 and have been convicted vide judgments, dated 7th April, 1991 and 8th April, 1991. They being aggrieved against their conviction filed Criminal Appeal No.67/L of 1991 and Criminal Appeal No.68/L of 1991.

4. I propose to dispose of both the appeals by this common judgment, as date of incident in both cases is same. The witnesses in both cases are common. Appellant, Aurangzeb is son of appellant Mst. Inayat Bibi.

5. The charge was framed against both the appellants separately on 20‑2‑1991 to which they pleaded not guilty. Therefore, prosecution in support of case examined P.W. 1 Ghulam Abbas, A.S.I., P.W.2 Muzaffar Hussain, A.S.I., P.W.3 Abid Rasul, Foot Constable, P.W. 4 Bashrat Hussain, A.S.I. and P.W.5 Ghulam Akbar, Sub‑Inspector in both cases.

6. Appellants denied the allegations in their statements under section 342, Cr.P.C. They also gave statements under section 340(2), Cr.P.C. on oath in disproof of the charges and examined common witness, Nazir Ahmad, in their defence.

7. P.W.1 Ghulam Abbas in both cases has stated that on 29‑11‑1990 he was posted at Police Station B. Division Gujrat. He recorded formal F.I.R. as Exh.P.A/1 (both cases). P.W.2 Muzaffar Hussain in case The State v. Aurangzeb, stated that on 29‑11‑1990 he was posted at Police Station B. Division Gujrat. He received two sealed parcels from Ghulam Akbar, S.I. which he kept in Malkhana for safe custody and on 2‑12‑1990 he handed over one sealed parcel of sample of heroin to Abid Rasul, F.C. for onward transmission to the Office of the Chemical Examiner, Lahore intact. In case of Mst. Inayat Bibi he has stated that on 29‑11‑1990 he received two sealed parcels from Ghulam Akber S.I. and deposited m Malkhana intact and on 6‑12‑1990 he handed over the parcel of sample to Abid Rasul, F.C. for onward transmission to the Office of the Chemical Examiner, Lahore. In cross -examination he has stated that he did not hand over the parcels to Abid Rasul on 2‑12‑1990. P.W. 3 Abid Rasul in case The State v. Aurangzeb stated that on 2‑12‑1990 he received one sealed parcel which he delivered in the Office of the Chemical Examiner on the same day. In cross‑examination he has denied to have delivered the parcel in the office of the Chemical Examiner on 6‑12‑1990. The same is the evidence of Abid Rasul in case of Mst. Inayat Bibi. He has stated that on 2‑12‑1990 he received one sealed parcel and handed over in the Office of the Chemical Examiner, Lahore and he denied the suggestion that parcel was delivered in the office of the Chemical Examiner on 6‑12‑1990. P.W. 4 Basharat Hussain, has stated that on 29‑11‑1990 he along with Ghulam Akbar, S.I. and some constables was present near Shahdaula Chowk when at about 2‑00 p.m. informer told them that Aurangzeb was selling heroin near Shahdaula Darbar. They went and apprehended Aurangzeb and recovered 95 grams of heroin from his right pocket of shirt. Two grams were taken as sample. The memo. (Exh.PB) was attested by him. He has also stated that on same day he was present along with Ghulam Akbar; S.I. and other Constables at Pakistan Chowk, Gujrat where Ghulam Akbar, S.I. received secret information that a woman was selling heroin in Mohafaz Ali Mosque. On this information Mst. Inayat Bibi was apprehended and sixty grams of heroin was recovered from her hand. The accused threw heroin on the ground in their presence on seeing police party. Two grams were separated and put into sealed parcels separately. Memo (Exh.PB) was prepared which he attested. P.W.5 Ghulam Akbar, Sub‑Inspector, has stated that on 29‑11‑1990 he was posted at Police Station B, Division Gujrat. He was present at Shahdaula Gate along with police officials when at about 2‑00 p.m. a secret informer supplied information that Aurangzeb was selling heroin near shrine of Shahdaula. He formed raiding party and apprehended Aurangzeb at about 2‑00 p.m. and from his personal search 95 grams of heroin was recovered. Two grams of sample was taken and put into sealed parcel. Recovery Memo. (Exh.PB) was prepared. He drafted complaint and sent to police station for registration of case. He recorded statements of witnesses and arrested the accused. He handed over two sealed parcels to Moharrir and after completion of investigation challaned the accused. In other case of Mst. Inayat Bibi he stated that on 29‑11‑1990 he was posted at Police Station B. Division Gujrat and on that day he along with other staff was present at Pakistan Chowk Gujrat when he received information the one woman was selling heroin in an open place near Islamia High School. He constituted raiding party and reached that place at about 4‑00 p.m. On seeing the police, Mst. Inayat Bibi started going towards eastern side but she was hauled up. Thereafter she threw `Lifafa' on the ground which was picked up and sixty grams of heroin was recovered from it. The Memo. (Exh.hD) was prepared. Two grams were taken as sample and put into sealed parcel. He drafted complaint and sent to police station for registration of case. He recorded statements of witnesses and arrested the accused. On completion of investigation accused, Mst. Inayat Bibi was challaned. He handed over parcels to Moharrir.

8. Aurangzeb, in his statement under section 342, Cr.P.C. stated that one day prior before occurrence local police came to their house and made a search without any permission or warrant from any Court. He has stated that S.H.O. was searching the person of his sister. He entered the house and lost control and asked him as to why he had trespassed in their house and was disrespecting a lady. The S.H.O. got infuriated, abused him, he also used hot harsh words against him. The police personnel then left their house extending threats. He has stated that he was challaned in false case and he is innocent. He has given statement on oath and stated the same facts: He has stated that Police searched the persons of his sister and mother but nothing was recovered. He has stated that police challaned his mother, sister, Mst. Shame and younger brother, Faisal. The same is the statement of Mst. Inayat Bibi but she has stated that she never indulged in narcotics. She is 60 years old having large family. In her statement on oath she has denied the allegation and stated that she, her son, her daughter and younger son, Faisal were challaned in different cases. She has stated that their neighbours, Ghulam Rasul and Nazir came to the spot.

9. D.W. Nazir Ahmad has stated that Aurangzeb is known to him. He was never involved in any case of narcotics. He is of good character and has no association with bad characters and 4 months ago at about 9‑10 p.m. four police officials came to the house of accused and searched the house. Thereafter they searched the persons of Mst. Inayat Bibi and her daughter, Mst. Shame. In the meanwhile Aurangzeb came there with two persons. He objected to the search of his sister and mother and lost his control and used hot words against the police officials. The police left the house threatening that accused would be taught a lesson and on next day, the police constables came and took the accused and his mother on a tonga.

10. I have heard M/s. Muhammad Rashid and M. Ashraf Tanvir Mian, counsel for the appellants and Mr. Muhammad Akhtar along with M/s. Haider Ali Shah and Malik Khuda Bakhsh, counsel for the State. It is argued that this is the case of highhandedness of police in which all the members of the family were falsely challaned in different cases. It is argued that there are material contradictions in the evidence of prosecution witnesses and cases are false. Mr. Muhammad Akhtar, Additional Advocate General has fr6kly submitted that cases are not free from doubt and he does not support the conviction.

11. It is an admitted position that Mst. Inayat Bibi is mother of Aurangzeb. They both are residing in the same house. The prosecution examined five common police witnesses in both the cases. Aurangzeb, according to prosecution, was arrested at 2‑15 p.m. when his mother, Mst. Inayat Bibi, was arrested at 4‑15 p.m. and in both cases, the evidence is that Ghulam Akbar, Sub‑Inspector received spy information that Aurangzeb and Mst. Inayat Bibi were selling heroin but they did not care to take any person from public though present incident is alleged in the heart of Gujrat City. It has been admitted in cross‑examination by Basharat Hussain A.S.I. that there are 15/20 shops near the place of recovery and many people were collected there while they were preparing the parcels. They reached the police station at 3‑30 p.m. The recovery from mother of Aurangzeb is shown at 4‑15 p.m. by the same witness. Ghulam Akbar, S.I. in cross‑examination in case of Aurangzeb has admitted that no person from public was called to join the raiding party though there are many shops near the place of incident. He has admitted that one hour was consumed in completing all the proceedings. In case of Mst. Inayat Bibi, P.W.4 Basharat Hussain, has stated that they proceeded from the police station at about 3‑00 p.m. Earlier in case of Aurangzeb he has stated that after completing investigation of that case they reached the police station at 3‑30 p.m. Therefore, there are material contradictions to the extent whether actually they went to the place of incident. This witness also admitted in the present case that there were so many shops. He has admitted that daughter of Mst. Inayat Bibi was also challaned later on in a theft case by Shahdaula Police. Mst. Inayat Bibi in the cross‑examination according to statement given on oath, has admitted that her daughter, Mst. Shama is addict of heroin which fact came to her knowledge after going to jail. She has stated in examination that Mst. Shama was arrested in a theft case after her arrest and her son, Aurangzeb, therefore no one was left to pursue the cases.

12. Samples were separated on 29‑11‑1990 on the day of incident and were received by Muzaffar Hussain, A.S.I. on the same day. He in case of Aurangzeb stated that on 2‑12‑1.990 he handed over sealed parcel to Abid Rasul for onward transmission in the Office of the Chemical Examiner, P.W.3 Abid Rasul has stated that on the same day i.e. 2‑12‑1990 he handed over the parcels in the Office of the Chemical Examiner. In case The State v. Mst. Inayat Bibi, Muzaffar Hussain, has stated that on 6‑12‑1990 he handed over the parcel of heroin to Abid Rasul for onward transmission to the Office of the Chemical Examiner, Lahore. He voluntarily stated in cross‑examination that packets were prepared on 2‑12‑1990 and delay in sending the parcels was caused due to special duty. This fact has been contradicted by Abid Rasul and he categorically stated that parcels were given by him to Abid Rasul on 2‑12‑1990. From, the report of Chemical Examiner, it is very clear that these parcels were deposited on 2nd October, 1990 but were received by the Chemical Examiner on 6th December, 1990. Complainant and Investigating Officer, Ghulam Akbar, in case State v. Mst. Inayat Bibi has stated, in cross examination, that according to report parcels were received by the Chemical Examiner on 6‑12‑1990 and in the report it is correctly recorded that on 2‑12‑1990 parcels were given to Abid Rasul. He has stated that he enquired from Abid Rasul about keeping parcels from 2‑12‑1990 to 6‑12‑1990 who stated that he immediately delivered the parcels in the Office of the Chemical Examiner intact. He did not call for his explanation. In cross-examination Abid Rasul has not given exact time by which he started for patrolling.

13. The story of prosecution in both cases is improbable that on the same day they received secret information about mother and son for selling heroin a. public place. The witnesses are common. It has come on record that mother, son and daughter and another son were challaned. There are material contradictions and it has been proved from the evidence that parcels of samples were handed over to the Constable who kept in his possession from 2‑12‑1990 to 6‑12‑1990 and not handed over in the Office of the Chemical Examiner. The story of the defence is probable and Mst. Inayat Bibi, a lady of 60 years has frankly, in examination, admitted that later on she came to know that her daughter, Mst. Shama, was addict of heroin. This may be the cause that police had gone to their house and they protested due to which entire family was involved in different cases. I have taken very serious note of this highhandedness on the part of police. The cases are false and prosecution has failed to prove the cases against Aurangzeb and Mst. Inayat Bibi. Criminal Appeal No.67/L of 1991 and Criminal Appal No.68/L of 1991 are allowed. Both the appellants are acquitted. They are in custody. They shall be released forthwith if not required in any other case. SA./659/F.S.C. Appeals accepted.