MUHAMMAD IJAZ Versus State
ALI NAWAZ CHOWHAN, J.--- Muhammad Ijaz son of Khan Muhammad appellant was convicted under sec tions 6/9-C of CNSA 1997 by the learned Additional Sessions Judge, Bhalwal vide judgment dated 23-10-2002 in case F.I.R. No. 63 dated 17-4-2001 registered at Police Station Phularwan District Sargodha and sentenced to six years with a fine of Rs.15000 in default of which to further undergo S.-I. for six months while giving him the benefit of section 382-B, Cr.P.C. By the same judgment Khan Muhammad was acquitted of the charge and the case of the minor Qasim Khan was separated for trial by a Court constituted under the Juvenile Justice System Ordinance 2000.
2. Briefly the prosecution case as gathered from the F.I.R. Exh.PA/1 is that on 17-4-2001 at about 5.30 p.m. on a spy information Ghulam Abbas Inspector along with other police officials reached at the designated place and blocked the road. At about 6-00 p.m. three persons namely, Muhammad Ijaz (appellant), Khan Muhammad and Qasim Khan coming from Salam Chowk on the road on seeing the police tried to run away. After chase the police apprehended Qasim Khan while Muhammad Ijaz and Khan Muhammad succeeded to run away. On personal search of Qasim Khan one kilogram Charas was recovered from his possession tied with his waist in a polythin shopper. The Charas thrown by Muhammad Ijaz and Khan Muhammad was three kilograms. From the whole quantity two hundred grams was separated for chemical analysis.
3. The prosecution to prove its case examined as many as six witnesses who are Muhammad Mumtaz A.S.-I. P.W.1, Muhammad Anwar A.S.-I. P.W.2, Ghulam Hussain MHC P.W.3, Muhammad Akram constable P.W.4, Malik Ghulam Abbas Inspect P.W.5 and Ali Mardan S.-I./ Investigating Officer P.W.6. The learned D.D.A. after tendering in evidence report of the Chemical Examiner Exh.PD closed the case for prosecution whereafter the accused were examined under section 342, Cr.P.C. who denied all the allegations and pleaded their innocence. They did not opt to appear as their own witnesses under section 340(2), Cr.P.C.
4. Narrating the facts of the case Malik Ghulam Abbas Inspector made the following statement:--
"At about 6 p.m. all the three accused were coming from Salam Chowk and on seeing the police party they tried to run away. Thereafter raiding party followed the accused and one of the accused Qasim Khan was apprehended, while other two accused namely Muhammad Ejaz and Khan Muhammad ran away after throwing the Charas. On personal search of accused Qasim got recovered one kilogram of Charas from him which was tied with his waist in a polythene shopper. The Chards which was thrown by the accused was three kilograms in weight."
He went on to say that Khan Muhammad accused was about 60 years of age and made the further statement in cross-examination as under:
"Khan Muhammad accused is aged about 60 years. Khan Muhammad and Ejaz ran towards the East."
Ali Mardan (P.W.-6) had the following statement to make:---
"I obtained physical remand of Ejaz accused for four days. During physical remand, nothing was recovered from Ejaz accused. Khan Muhammad accused was declared innocent by me in my investigation. ASP verified my investigation regarding innocence of Khan Muhammad accused."
5. From the facts .of the case it is apparent that Khan Muhammad was declared as innocent although it was alleged that he had thrown away the Charas and had made good his escape along with appellant Ijaz and was, therefore, not apprehended at the spot, unlike Qasim their co-accused. No reasons have been given for separating the case of Khan Muhammad. Ijaz was also not apprehended at the spot and the story of his decamping was in the same tone as of Khan Muhammad who has been acquitted. Besides the police witnesses there is none to affirm the throwing of the Charas by the appellant at the time when Qasim co-accused was apprehended. The possibility that he too was not involved in the trafficking of the Charas as his co-accused Khan Muhammad is strong and so is his false involvement. Qasim's case any how is being tried separately and no opinion can be expressed in that connection.
6. Under the circumstances we feel that this is not a case fully established against the appellant Ijaz who is acquitted of the charge. The appeal is accordingly allowed.
H.B.T./M-535/L Appeal allowed.