MUHAMMAD IQBAL Versus THE STATE S. Nadeem Saqlain , Faiz-ur-Rahman
GUL MUHAMMAD KHAN, C.J. --Muhammad Iqbal appellant challenges the order, dated 7th of January, 1988, passed by Mr. Muhammad Aslam Sumra, Additional Sessions Judge, Gujrat Camp at Phalia, whereby he convicted him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to three years' R.I. with whipping numbering two stripes. He was also fined a sum of Rs.500 and was to suffer three months' S.I. in case of default in payment. When the case came up for the suspension of sentence we directed to issue a notice for enhancement of the sentence as if the offence for possession of 500 grams of heroin stood proved the sentence awarded may be too short. This order shall also dispose of Criminal Suo Motu No. 8/L of 1988.
2. The occurrence took place on the 16th of November, 1985, at Bus Stand Mandi Bahauddin. Muhammad Aslam Butt, S.I. complainant, P.W.4 received a secret information while he was present on patrol duty at Chowk College, He was told that a person, who was dealing in heroin had alighted from a bus and if he was apprehended heroin could be recovered from him. Consequently, the police party led by Muhammad Aslam Butt, S.I. P.W.4 went to the General Bus Stand where they found the present appellant. He was apprehended and on his personal search 500 grams of heroin was found in a polythene envelope hanging inside the Shalwar. It weighed 500 grams. 10 grams as sample were taken and sealed separately for chemical analysis. The case was then challaned on the receipt of the report in positive Exh.P.D. of the Chemical Examiner.
3. The prosecution produced Muhammad Afzal Shah, A.S.I., P.W.1, who had kept the sealed parcels in the Malkhana after they were given to him by Muhammad Aslam Butt, P.W.4. Noor Hussain Shah, Inspector P.W.5 appeared to state that he recorded the first information report on the complaint of Muhammad Aslam Butt, S.I. P.W.4. Muhammad Aslam Butt, appeared to narrate the version as given in the first information report. He was supported to some extent by Mumtaz Ahmad P.W.3, Muhammad Zaman Jafri, P.W.2, who is a person from the public stated that the accused in Court was not the same person who was apprehended and searched. He was declared hostile but no substantial material beneficial to the prosecution was brought on the record.
4. The appellant in his statement under section 342, Cr.P.C. denied the allegation against him and stated that he had been involved due to enmity on the basis of false evidence.
5. It is contended by the learned counsel for the appellant that the evidence on the record did not justify the conviction and therefore, the appeal is likely to be accepted. It is contended by him that Muhammad Aslam Butt, S.I. P.W.4 stated that recovery had been made from the appellant on the basis of information received by Muhammad Aslam Butt P.W.4 that the accused had alighted from the bus and was leaving. Mumtaz Ahmad, Head Constable, P.W.3 deposed that a bus was stopped and recovery was made on the basis of the search carried therein. Muhammad Zaman Jafri, P:W.2; on the other hand, denied that it was accused who was apprehended and searched.
6. It is to be noted that according to Mumtaz Ahmad, Head Constable, P.W.3 the packet of the heroin was kept by the accused tied with the string of his Shalwar. According to Muhammad Aslam Butt, S.I., P.W.4. the packet of heroin was held inside the Neffa of his Shalwar. The allegation in the F.I.R. was that the packet of heroin was hanging inside the Shalwar.
7. The learned counsel for the State is not in a position to explain or meet any of the objections. Undoubtedly, three witnesses materially contradicted each other. In this view of the matter, there is no reasonable ground for the conviction. This appeal is, therefore, ? allowed, the conviction and the sentences are set aside and the appellant is acquitted of the charge. We further direct that the appellant shall be released forthwith unless he is wanted in any other case. The suo motu notice issued against him shall also stand discharged.
S.A./421/F.S.C. ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.