FAWAD HUSSAIN Versus THE STATE Muhammad Asif , Abdul Qayyum Sarwar

GUL MOHAMMAD KHAN, C.J. --Fawad Hussain petitioner was convicted by Mr. Ataur Rehman Lodhi, Magistrate 1st Class, Mardan, vide his order, dated the 13th of July, 1988, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to two years' R.I. with a fine of Rs.5,000 was to suffer six months' R.I., further in case of default in payment of fine. His appeal before Mr. Mohammed Salim Khan Mina Khel, Sessions Judge, Mardan, also failed and was dismissed by an order, dated 15th of April, 1987, He has now filed the present revision petition challenging both the orders, praying that the' conviction be set aside and. he may be acquitted of the charge.

2. The occurrence took place on the 31st of January, 1985, at 14-30 hours in a street of Mohalla Hoti in Mardan Town, where the petitioner was found in possession of 9 grams of heroin. Yar Muhammad Khan. Inspector P.W.3, 'who was leading the raiding party sent a 'Murasala' for registration of the case. It was stated therein that Yar Muhammad Khan alongwith other police officials were on patrol duty. They found the present petitioner in a suspicious condition. He, therefore, asked Ali Rahman P. W.1 to search his person, who recovered 9 grams of heroin from the pocket of his shirt. One gram out of it was separated and the two quantities were sealed into two separate parcels. One gram was sent to the Chemical Examiner for chemical analysis. The report of the Chemical Examiner showed that it was heroin.

3. The prosecution examined four witnesses to support its case. Ali Rahman P.W.1 deposed that he had recovered the contraband material while Yar Muhammad Khan, Inspector P.W.3 and Fazlur Rahman, A.S.I., P.W.4, supported him. Jehanzeb, A.S.I. P.W.2stated that he had only recorded the first information report on the receipt of the letter sent by Yar Muhammad Khan, Inspector. The petitioner in his statement under section 342, Cr.P.C., denied the allegation and stated that he had been involved at the instance of his enemies. He, however produced no witness in defence.

4. It is contended by the learned counsel-for the petitioner that the evidence on the record is so discrepant and contradictory that no conviction should have been made. He has referred to the statement of Ali Rahman P.W.1 which gave the impression that he was alone present at the time of the recovery and he thereafter took the accused/ petitioner to the police station where the recovered material was weighed as 9 grams. Yar Muhammad Khan, Inspector, P.W.3, on the other hand, stated that he was leading a patrol party and on suspicion Ali Rahman was asked to search the petitioner. He recovered 9 grams of heroin from his pocket. In his cross-examination he stated that the heroin was weighed at the spot with the scale, which he had with him. He further stated that he had 3/4 weights alongwith the scale. In answer to another' question he deposed that he had raided only one place before the arrest of the accused but had not arrested any person in that raid. Fazlur Rahman, A.S.I. P.W.4 though supported the recovery of the material yet stated that he did not know if they had raided/arrested other accused before the case in hand. He further stated that the scale and the weights were with the I.O.

5. It will be seen that Ali Rahman does not mention the presence of the other witnesses at the time of the search and, recovery- He added that the accused was taken to the police station where the heroin was weighed. The other two witnesses, on the other hand, stated that they were present at the spot where the heroin was recovered. In their presence and weighed at the spot. Fazalur Rahman, however, did not know if any other raid had been conducted on that date. The contradictions stated above do go to the root of the case and it is doubtful whether the occurrence had taken place at all. The witnesses belied each other in material respects, and therefore, these contradictions cannot be ignored.

6. The result is that we allow this revision petition, set aside the conviction and the sentences and acquit the petitioner of the charge. The petitioner is on bail. His bail bonds are discharged.

S.A. / 404/F.Sh. Petition accepted.