1992 MLD 1866
This appeal is directed against the judgment, dated 26‑12‑1991, passed by the IIIrd Additional Sessions Judge, Hyderabad, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer R.I. for ten years.
2. It is case of the prosecution that on 13‑11‑1989, Sohrab Khan, Assistant Excise and Taxation Officer, Hyderabad and his associates on spy information apprehended the appellant from his house in Jurial Shah Colony, Hyderabad. He was searched. From his possession 150 grams of heroin was recovered. 15 grams of heroin was taken for sample. Inventory in respect of the same was prepared. The sample was sent to the Chemical Examiner, whose report is in positive. The F.I.R. was registered at the Excise Police Station, Hyderabad against the appellant. After usual investigation the appellant was challaned before the Court. The case came for trial before the Court of the learned IIIrd Additional Sessions Judge, Hyderabad, where charge under Article 4 of the Order was framed against the appellant whereto he did not plead guilty and claimed trial.
3. In support of the case the prosecution examined P.W.1 Abdul Latif, Excise Head Constable, and P.W.2 Sohrab ZV Assistant Excise and Taxation Officer.
4. In his statement recorded before the trial Court the appellant denied the allegation and showed enmity with the police. His statement under section 340(2), Cr.P.C. is as under:‑ .
"The case against me is false. It is absolutely incorrect that I was raided by the Excise Police and arrested me near my house in the street and secured 150 grams of heroin. In 1986 my brother Ghulam Hussain was killed at Sakrand, wherein Muneer Ahmad Alvi, D.S.P. Police, Shah Muhammad Soomro, Sub‑Inspector Police and others were accused. These police officials pressed me to compound the case of murder with them which I refused. At that time complainant in this case Sohrab Khan and Mir Hyder were also with the police officials. This case is still pending in this Court. My mother moved such applications in the Court after my arrest. I produce photo copy of two applications at Exh.13 and 14. I also produce photo copy of the F.I.R. and challan in the murder case at Exhs.15 and 16.1 was also involved in a false case of Police Station Phulcli under section 20 of Hudood Ordinance and challaned in the Court of Vth Additional Sessions Judge, Hyderabad, from where I was acquitted. I produce certified copy of the judgment as Exh.17. I am innocent."
However, Muhammad Aslam was examined in defence. The learned trial Judge after relying on the evidence of the prosecution and rejecting the defence version convicted the appellant for the offence under Article 4 of the Order and sentenced him for the same as mentioned herein above. Hence this appeal.
5. With the assistance of the learned counsel for the parties I have gone through the evidence produced by the prosecution and the defence version. It is an admitted fact that there exists enmity between the appellant and police officers of Police Station Sakrand where Mst. Mukhan, mother of the appellant, had lodged report of murder in respect of Ghulam Hussain, brother of the appellant. Against the appellant a case was registered at Police Station Phuleli, where he was acquitted of the charge on 22‑5‑1989. Sh. Azizur Rahman, the learned counsel for the State candidly conceded that the case is o victimization. Hence benefit of doubt be extended in favour of the appellant. I have gone through the material on the record which reflects such false implication. I am, therefore, inclined to agree with the contentions raised by the learned counsel for the appellant as well as the State counsel and accept the appeal, set aside the conviction and sentence awarded to the appellant by the IIIrd‑Additional Sessions Judge, Hyderabad, on 26‑12‑1991 and acquit the appellant of the charge. He be set at liberty forthwith if not required in any other case.
N.H.Q./682/FSC Appeal accepted.