1997 P Cr (PLP)

2. The case of prosecution, briefly stated is that on 20-2-1990, at about 9-00 p.m., Athar Rashid the Sub-Divisional Inspector Baghdadi, was patrolling the area along with his subordinate staff. He received spy information about the appellant trafficking in narcotics trade. He found the appellant standing in suspicious circumstances near Crown Cinema, Maripur Road. He arrested him and on his search found a plastic bag containing fifty grams of heroin powder from right side pocket of his shirt. He secured the heroin powder in presence of witnesses, P.C. Muhammad Akram and H.C. Muhammad Iqbal. Heroin was sealed on the spot and Mashirnama prepared by them. He then Sent a written complaint to the Duty Officer, Police Station, Kalri, Karachi for registration of the F.I.R. The F.I.R. was registered at Kalri Police Station as Crime No.57/90 of that police station. Further, steps in the investigation were taken by the said Sub-Divisional Inspector and ultimately the case was sent up for trial.

3. The prosecution during trial examined Sub-Divisional Inspector Ather Rasheed (P.W.3) and one of the two of his subordinate staff, Muhammad Akram (P.W.2). Besides, Muhammad Aslam, Sub-Inspector of Police, Police Station Kalri (P.W.1) was also examined to prove the F. I. R.

4. The appellant in his statement recorded under section 342, Cr.P.C. generally denied the allegations of the case of the prosecution and claimed that he was in fact arrested from his house due to enmity with the police. He neither examined himself on oath nor led any defence.

5. The trial Judge after appraising the case of the prosecution found the appellant guilty of the offence and convicted and sentenced him as stated above. The trial Judge awarded him minimum sentence prescribed by law, as he found that the appellant was of advanced age (72 years).

6. Mr. Shahadat Awan, Advocate for the appellant in support of his present appeal has mainly contended as under:-- (i) That two Police Officers who have been examined as eye-witnesses have given a contradictory statements regarding the time of arrest of the appellant, description of the vehicle used by them and the time taken at the spot in conducting the investigation. (ii) That out of sentence of two years awarded to the appellant, he has already undergone sentence of one year when he was released on bail under the orders of this Court. In support of his contention, Mr. Shahadat Awan has relied on the cases reported in 1987 PCr.LJ 713, 1989 MLD 734 and 1989 PCr.LJ 601.

7. Mr. Abdul Hakeem Bijarani, Assistant Advocate-General does not support the appeal as according to him, the discrepancies in evidence, pointed out by the Advocate for the appellant, are of trivial nature and not material for the purpose of decision of this appeal. He further contends that the appellant had already been awarded minimum sentence prescribed under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979.

8. Mr. Shahadat Awan, Advocate for appellant has correctly pointed out the contradictions made in the statements of the only two Police Officers examined by the prosecution in the case. Their evidence on such point is indeed discrepant. The Police Officers, who are normally either educated or at least literate, cannot be taken to be on par with ordinary illiterate witnesses and are expected to be alert to facts confronted by them in investigation of an offence and correctly state the same during trial. Besides such witnesses have advantage of the case diaries, which contains the details of the investigation undertaken by them. I also find, that Athar Rasheed Butt who claimed to be incharge of Special Team for the sub-division, for the investigation of cases of narcotics having jurisdiction of the four police stations, stated in his cross-examination that he did not even remember that on the date he had apprehended the appellant he had also looked into other heroin cases. He was further confronted that on that date if he had apprehended one person Mohabat. To this question too, he said that he did, not remember his case. The Sub-Divisional Officer who is specially made incharge of detection of such cases of a Sub-Division indeed sought to have replied in positive terms at least in respect of action taken by him in performance of his official duties. His evasive replies render credibility of such witness to be of doubtful nature.

9. Taking all the circumstances mentioned above into consideration, the evidence of the two Police Officers in this case, indeed do not inspire confidence and it will be unsafe to base conviction on such evidence. Accordingly, the judgment impugned in this appeal is set aside. The appellant is reported to be on bail. His bail bonds are discharged and the appeal is allowed. N.H.Q./M-136/K Appeal accepted