GHULAM RASOOL ALIAS WAKIL Versus STATE

IBADAT YAR KHAN, J--- In this appeal, Ghulam Rasool alias Wakil has challenged his conviction Article under 4 of the prohibition (Enforcement of Hadd) Order, 1979.He has been sentenced to five years R.I., ten strips and a fine of Rs.5000. He was tried and convinced by Syed Iqbal Hussain Rizvi, learned Session Judge, Karachi Central, vide judgment dated 21-7-1990.

2. The case started on the complaint of Muhammad Latif, an Inspector of C.I.A. alleging that on 10th January, 1989 he was on patrol duty alongwith other members of his staff. At about 15‑00 hours when the patrol party reached in the area of Gulbahar Police Station near Ali Gohar Hotel in Haji Murid Goth, they observed a man with a Thcla in his hand. The movements of this man created doubt and suspicion in the mind of the Police Inspector and he decided to search the man. Consequently, first the Thcla was opened and as a result four cloth bags were found in the Thela. When these bags were opened each bag was found to contain four kilograms of opium. The Inspector drew samples for the purpose of chemical examination from each bag and sealed these samples. The remaining quantity contained in the three bags was also separately packed and sealed. The samples were sent to the Chemical Examiner. The Chemical Examiner vide his report Exh.P.1 certified that the material was opium. The report of the Chemical Examiner Exh.P.1 has been produced by the Chemical Examiner himself who has been examined in Court as P.W.1. The prosecution has tried to prove the recovery by producing the leader of the raiding party namely Muhammad Latif, complainant who is also the Investigating Officer and one Mushtaq Ahmad who has been produced as I P.W.4.

2. P.W.2 Muhammad Latif in his statement in Court has repeated what he had already said in the F.I.R. He was cross‑examined particularly on the point why he did not associate any independent witnesses in support of the recovery. It is evident from the prosecution story that the time of occurrence is 3‑00 p.m. and the place of occurrence is a very busy place so much so that it is situated near a hotel and at the afternoon time in a winter month there would be quite a number of people taking their evening tea. Neither the manager nor any one from members of the staff of the hotel or any customer has been approached. It appears that the Inspector took the matter so casually and showed such unexplained indifference in the investigation which to say the least amounts to negligence and unpardonable failure in performing his duties. His replies to the question in cross‑examination bear out the fact that this Inspector is not even fully conscious of his obligations in conducting such a raid or the caution to be shown in recoveries of narcotics from persons who are hardly trapped and if trapped rarely confess their guilt. Some of the replies offered by the Inspector are worth noting:‑‑‑

"I had seen hotel from outside. I did not pay attention about availability of the owner of the hotel. I did not feel any necessity for collecting any other private person for making him as Mashir. I had received spy information about 5‑10 minutes earlier:"

The only other witness which he has produced in his support is admittedly a stock witness and is available at convenience to this Inspector whenever he wants. It is on record that he has appeared in at least twenty cases during search conducted by this Inspector. This witness is not a resident of the area and his place of residence is more than 12 miles away from the place of occurrence. Further, he is working as a labourer in some Spinning Mills. His duty hours are 8 a.m. to 6 p.m. and yet he has shown his presence on the place of occurrence at 3 p.m. in order to prove the recovery. With the above‑noted credentials the evidence of this witness would hardly inspire any confidence.

3. Mr. Azizullah Shaikh, the learned counsel for the appellant had much to say during his arguments about involvement of the appellant in this case. Learned counsel brought to our notice several cases in which the appellant has been, according to the learned counsel, victimised. The learned counsel referred to a complaint filed by the present appellant against certain police officers in Gulbahar Police Station on 28‑6‑1988. While this complaint was pending disposal in Court, the police registered a case against this appellant on 31‑8‑1988. By order, dated 10‑10‑1989 this case against appellant was, however, dismissed and the appellant was acquitted. The present prosecution is the second in the series where the appellant has been charged with possession of opium. Another circumstance pointed out by the learned counsel for the

Appeal accepted.