ABID HUSSAIN and another vs THE STATE
This matter arose from a criminal appeal before the Federal Shariat Court against the judgment of the 1st Additional Sessions Judge, Karachi South, who convicted and sentenced the appellants under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 for possession of heroin. The core legal question before the court was whether a conviction based solely on the uncorroborated testimony of police officials, without independent private witnesses despite apprehending the accused in a populated business area, could be sustained. The court held that while police officials are competent witnesses, their evidence must be scrutinized with skepticism where false involvement to demonstrate efficiency cannot be ruled out. The absence of independent witnesses created reasonable doubt regarding the recovery and weighing of the alleged contraband. The Federal Shariat Court allowed the appeals, set aside the convictions and sentences, and acquitted the appellants. The principle re-affirmed is that failure to associate independent witnesses from a populated crime scene renders the prosecution case doubtful, entitling the accused to the benefit of doubt.
- Does the absence of independent private witnesses during a recovery made in a populated area create reasonable doubt in favor of the accused?
- Can a conviction for possession of narcotics be sustained solely on the uncorroborated evidence of police officials where no independent witnesses were associated?
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
' 1st Additional Sessions Judge, Karachi South has convicted the present two appellants and one Habib-ur-Rehman under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and has sentenced accused persons Habibur Rehman and Attaullah to undergo R.I. For two years and one month each and fine of Rs,500 each and, in default to further undergo S.I. For one month each and accused Abid Hussain sentenced to undergo R.I. For two years and three months and a fine of Rs,500 and, in default to further undergo S.I. For one month.
2. The case was initiated on the F.I.R. Lodged by Sub-Inspector Muhammad Ameen Khokhar of Chakiwara Police Station on 23-6-2000, alleging that he along with his police party, on spy information apprehended the appellants and secured from their possession 'heroin' powder and some cash. According to F.I.R., the police recovered from appellant Abid Hussain 20 grams of 'heroin, powder in four wrappers of equal weight and Rs,35. From Attaullah appellant, the police recovered 15 grams of 'heroin' powder in three wrappers of equal weight and Rs,25. From Habibur Rahman, the third accused person, the police recovered 15 grams of 'heroin' powder. And Rs,45.
3. According to prosecution case, the powder was sent to Chemical Examiner for report and the Chemical Examiner found that without wrapper the weight of 'heroin' powder contents was more than mentioned in the F.I.R. By the police. However, the report was that it was 'heroin' powder.
4. The main contention of the learned counsel for the appellants is that despite the fact that the appellants were allegedly apprehended from a populated area and at a business time, no independent witness was involved to prove recovery of the 'heroin' powder from possession of the appellants. All the three witnesses examined are police officials. According to them the wrappers recovered from possession of the A appellants and the third accused were of equal weight of five grams. Prosecution witnesses do not clearly state how they weighted the alleged `heroin' powder and whether it was actually weighed at all. Of course, the police officials are witnesses like any other witness but, in the circumstances, their evidence is to be scrutinized with a deal of skepticism because possibility of false involvement by police just to show their efficiency cannot be ruled out.
Absence of independent witnesses, other than the police officials themselves, makes the case doubtful and the benefit of doubt is going to the appellants. Both the appeals are, therefore, allowed and the conviction and sentence of both the appellants are set aside. Appellant Abid Hussain is on bail. His bail bond stands discharged. Appellant Attaullah is in jail. He be released in this case forthwith.