1989 PLP 420 (SCMR)

Nemo for the State. Date of hearing: 2nd August, 1988. NASIM HASAN SHAH, J.‑‑This petition for leave is directed against the judgment of the Federal Shariat Court, Lahore dated 13‑1‑1988 passed in Criminal Appeal No337/L of 1987. The relevant facts briefly stated are that on the night between 15/16‑2 1985 Inspector Raja Abdul Khaliq, S.H.O. Police Station Saddar Attock alongwith Shaukat Hayat, Head Constable and Khafd Shaheen and Maloom Khan, Constables were present at the police Check Post Attock Khurd for the checking of illicit arms and narcotics when a flying coach coming from Peshawar side was stopped by them. Khalid Shaheen Constable entered the flying coach and on suspicion brought down the petitioner from the bus who was searched by the S.H.O./Inspector and during the search 30 grams of heroin were allegedly recovered from his right outer pocket of the coat and 100 grams of Charas recovered from his right inner pocket of the coat. On further search, a sum of Rs.300 was also allegedly recovered. The petitioner was, therefore, tried by the learned Additional Sessions Judge, Attock, who convicted and sentenced him under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979, for three years' R.I. alongwith 10 stripes and a fine of Rs.5,000 or in default to undergo further R.I. for 6 months. On appeal, the Federal Shariat Court reduced the sentence of rigorous imprisonment from three to two years; set aside the sentence of stripes but maintained the sentence. of fine. The petitioner now seeks leave to appeal. In defence, the petitioner in answer to the question; "Why this case is against you?" stated as follows:‑‑ "At the time of the present occurrence I was returning from Peshawar in a Flying Coach. I had purchased antibiotic injections from Peshawar and was taking them with me. When the Flying Coach stopped at the check post Khalid Shaheen Constable entered the coach for checking. The carton containing the injections was lying under my seat and I was sleeping. Khalid Shaheen had kicked the container and I asked him not to do so because it contained injections. Upon this there was an altercation between me and Khalid Shaheen and 1 was brought down from the Coach. No heroin or charas was recovered from me. I have been falsely involved in this case because of altercation between myself and Khalid Shaheen Constable. He supported his above statement under section 342, Cr.P.C. by appearing as a witness in his defence (under section 340, Cr.P.C.) and reiterated the above version depicting Khalid Shaheen Constable as the villian of the piece. Strangely, however, the learned A.P.P. did not consider it fit to produce Khalid Shaheen Foot‑Constable as a witness and gave him up as unnecessary resting his case only on the statements of Inspector Raja Abdul Khaliq, Shaukat Hayat Head Constable and Maloom Khan Constable. It is argued that as the petitioner vas travelling in a Bus, wherein several other persons were also travelling but none of the co‑passengers have been cited as fitness of the recovery. Moreover, Khalid Shaheen Constable was the most important witness in the case and giving him up as "unnecessary" was unwarranted and unjustified and this has prejudiced the case of the petitioner and occasioned a failure of justice granted. These submissions, especially the latter, prima facie, have force. Leave in the meanwhile. the sentence of the petitioner will be suspended on his furnishing a bail bond m the sum of Rs.20,000 with one surety in the like amount to the satisfaction of the A.C/Duty Magistrate, Lahore. M.1./Q‑18/S Leave granted.