1993 PCr (PLP)

Nazir Ahmad Qureshi for the State. Date of hearing: 14th March, 1993. The appellant was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to two years' R.I., fine of Rs.5,000 or in default thereof six months' R.I. and whipping of five stripes by learned Additional Sessions Judge, Gujrat vide judgment, dated 9-7-1990. He has appealed.

2. Awais Aslam Butt, Assistant Superintendent Jail, Gujranwala (P.W.6) sent complaint (Exh.P.A.) to the police station on 5-11-1988 whereon Muhammad Ismail (P.W.1) registered a formal F.I.R. (Exh.PA./1) at 3-50 p.m.

3. The version given in the F.I.R. was that the appellant, who was an under trial in jail and had returned after hearing of his case in Court, was checked at the main gate of the jail and was found to be in possession of 19 grams of heroin. Muhammad Ashraf, Head Warder (P.W.3) and Ahmad Hassan, Constable (P.W.4) were on duty at the gate and it is in their statement that on checking on return from the Court, the petitioner was found to be in possession of 19 grams of heroin, they reported the matter to Awais Aslam Butt (P.W.6) and Muhammad Majeed, S.I. (P.W.5) reached the jail and recovered the heroin.

4. The appellant at the close of the trial pleaded that he was innocent. Akbar and Nawabi Dogar were murdered by the Jail Authorities and on account of this there was an agitation. He had participated as a leader of the agitation as a result of which a quarrel took place between the agitators and the jail authorities. He was falsely involved.

5. Learned counsel for the appellant after having taken us through the record contends that no case is made out against the petitioner. There is much force in the argument. It was Muhammad Majid, S.I. (P.W.5) who had recovered the heroin in the presence of Muhammad Ashraf, Head Warder, Ahmad Hassan, Constable and Mr. Awais Aslam Butt, Assistant Superintendent Jail, P.Ws. The S.I. has not said a single word that the heroin on being recovered was sealed into a parcel. He only felt content by saying that it was taken into possession vide memo. (Exh.P.B.). However, it is there in the memo. that it was sealed into a parcel. The S.I. further stated that 5 grams of heroin was sent to the Chemical Examiner. How it was sent there is again no evidence. Muhammad Nadim, Constable (P.W.2) stated that Muhammad Ismail Moharrar of the police station had given to him one sealed parcel of the present case which he delivered at the office of Chemical Examiner, Lahore. Neither the Moharrar has been produced nor it is the statement of the Sub Inspector that the sealed parcel of the specimen of heroin or the main packet of heroin in sealed cover were given to the Moharrar. So, we have no evidence that the heroin allegedly recovered was sealed into a parcel or the specimen also sealed or the same sent to the Chemical Examiner in due course. The other evidence would be of no use to the prosecution.

6. The upshot is that the appeal succeeds. The conviction and the sentence are hereby set aside. The appellant is on bail and stands discharged of the bail bonds. N.H.Q./M-915/L Appeal accepted.