ASGHAR ALI Versus STATE

1. RAJA AFRASIAB KHAN, J.--- On 14th of August, 1987 at 4-30 p.m., a case under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order) was registered against Asghar Ali with Police Station North Nazimabad, District Karachi on the statement of Manzoor Ali Rana, F.I.O. Incharge P.N.C.B. The complainant received information disclosing that the accused was likely to transport heroin in his Taxi Car No.815-250. A raiding party consisting of Manzoor Ali Rana, F.I.O., Raees Ahmad and other' employees of P.N.C.B. was constituted. On the day of occurrence, at about 3-30 p.m., raiding party intercepted and stopped the aforesaid vehicle which was heading towards Defence Housing Society, Karachi. In presence of Fareed Ahmad and Saeed Ahmad, search was made and in the result, a bag was recovered from the dickey of the car. On opening the bag, 17 bags were recovered which contained heroin. Every bag carried one k.g. of heroin. Samples for analysis were taken. Asghar Ali was arrested there and then. To prove its case, prosecution produced Raees Ahmad, P.W.1, Farid Ahmad, p.W. 2, Sheikh Ghulam Muhammad, C.W. and Manzoor Ali Rana, P.W.3. Raees Ahmad and Fareed Ahmad P.Ws. proved the recovery of heroin from the taxi car. Manzoor Ali Rana investigated the case. The accused denied the allegations and pleaded that he was merely a taxi driver and had been implicated on account of a quarrel which took place between him and Raees Ahmad P.W. and others. Asghar Ali, D.W. 1, Ghulam Abdul Qadir, D.W. 2, Mirza Nisar Baig, D.W.3, Moinuddin, D.W. 4 and Muhammad Irfan Malik, D.W.5 supported the plea of the appellant. On 18-8-1990, learned Sessions Judge, Karachi, South convicted the accused under Article 4 of the Order and sentenced him to 10 years' R.I. and 20 lashes. He was ordered to pay fine of Rs.20,000 or in default to suffer two years' R.I. Benefit of section 382-B, Cr.P.C. was given to him. The convict/appellant challenged his conviction and sentence through appeal which was disposed of by Federal Shariat Court on 2-4-1992 holding that 17 k.g. of heroin was recovered from him and that being so, there was no mitigating circumstance to reduce his sentence. Leave to appeal was granted by this Court on 15th of February, 1993.with the following reasons:--

2. According to the learned counsel, 34 packets of heroin were recovered while samples in respect of 17 packets were sent to the chemical examiner for their examination. Similarly, his argument was that five grams of heroin was taken as sample from each packet but, during analysis, it was weighed to be three grams only. There was unexplained delay of three days in sending samples to they chemical examiner, which would make the prosecution case doubtful. Learned counsel for the State was unable to justify the judgment of conviction and sentence in the face of weighty arguments of the learned counsel for the appellant.

3. After hearing the learned counsel for the parties at some length and carefully going through the record, we hold that prosecution did not succeed to prove its case beyond reasonable doubt against the appellant. The prosecution case was that from the taxi car 34 packets of heroin were recovered but only 17 packets were produced in evidence. No explanation could be given by the prosecution about the remaining packets of heroin alleged to have been recovered from the appellant. Testimony of Manzoor Ali Rana, P.W.3 may usuefully be referred in support of this argument which is as follows:--

4. "The 34 sample packets made by me at the time of recovery and sent for chemical examiner have not been produced by me in this Court, because the same have not been returned by the Customs Laboratories. "

5. Similarly, five grams from each packet as sample were taken but during chemical examination, they were found to be only three grams each. This assertion of defence was admitted to be correct by Muhammad Irfan Malik, D. W.5 who examined the drug in question. He stated as follows:--

6. "It is correct that in the figure of weight corrections made from 5 grams to 3 grams in the letter Exh.27. "

7. It would, therefore, follow that the prosecution itself was not sure about the quantum of contraband drug having been recovered from the appellant. There is also delay of 3 days in sending the samples to the expert for their examination. Possibility that the samples were tampered with during this period, could not be ruled out. Learned counsel has failed to reconcile the above material contradictions in the prosecution story. Learned Courts below did not consider this aspect and its effect on the case of the prosecution. This defect, in our view, is fatal to the case of the prosecution. Besides the above, the appellant was not the owner of the taxi car which belonged to someone else. He was proved to be a mere driver. He might be plying the tax car as an employee of its owner without knowing that it was carrying some forbidden article. Trend of evidence available on record does lend support to this line of thinking. The prosecution case, as a whole, has, therefore, become doubtful. It is a well-established principle of law that every doubt which may arise, would go in favour of the accused. Conviction of the appellant, in the given circumstances, is not sustainable and as such, it is set aside. He is acquitted of the charge by giving G him the benefit of doubt and shall be set at liberty forthwith if not needed m some other criminal case.

8. N.H.Q./A-1325/S Appeal accepted.