MUHAMMAD NADEEM Versus THE STATE

MUFTAKHIRUDDIN, J .-- This appeal is preferred by Muhammad Nadeem son of Muhammad Tufail Qureshi (Mir Alam) resident of Garh Ghazi 'Chowk Police Station Renala Khurd Tehsil and District Okara against the judgment and order, dated 18-7-1987 passed by Qazi Muhammad Ashfaq Qureshi, Magistrate 1st Class, Khanewal whereby the appellant has been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months with ten stripes, under Article 3 .of the said Order and three years' R.I. 'with a fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for six months under Article 4 of the said Order. The sentences are to run concurrently.

2. The brief facts of the prosecution story are that on 2-2-1987 at about 3-00 p.m.- or so on receipt of a spy information at Police Station City Khanewal a raiding party was formed to apprehend and arrest a person who according to the information used to sell heroin at Colony No. 3 near Hameedia Masjid Khanewal send Muhammad Jameel F.C. 213 was entrusted with three notes of Rs.l0 denomination to purchase heroin. The said police constable purchased heroin from the accused/ appellant and produced before the police which was weighed one gram and was sealed and a recovery memo.' prepared therefor.

Later of the pointataon of Muhammad Jameel the accused was found sitting on a bench outside the 'Hammam' owned by Younas Barber and situated at Kachhi Road in Colony No. 3 Khanewal. He was apprehended. On the personal search of the accused three grams of heroin wrapped in paper was found in his right pocket of the shirt. The tainted notes were also recovered. One gram out of the recovered heroin was separately sealed. The recovery memo prepared in this behalf was witnessed by Muhammad Jameel and Mushtaq Ahmad (Excise Constable). The complaint was drafted by Tariq Hafeez, Excise Inspector, Khanewal and through Rustam Ali A.S.I. Police Station City Khanewal a member of the raiding party sent to Than& and the formal F.I.R. was registered by Muhammad Rafiq. The three parcels were kept in Malkhana and later through Ghulam Akbar F.C. the two sample parcels were sent to the Chemical Examiner, Multan. The investigation was conducted by Rustam Ali and on receipt of the Chemical Examiner's report the challan was put up in Court. The accused denied all the allegations and the prosecution produced six witnesses. They are P.W.1 (Ghulam Akbar), P.W. 2 (Muhammad Jameel), P.W.3 (Tariq Hafeez Khan, Excise Inspector, the complainant), P.W.4 (Rustam Ali A.S.I.), P.W. 5 (Mushtaq Ahmad, Excise-constable) and P.W.6 (Muhammad Rafiq). The report certifying that the packets sent to the Chemical Examiner contained heroin were tendered in evidence. The accused in his examination recorded under section 342, Cr.P.C. denied the accusations and 'produced Muhammad Younas Barber in his defence. The trial Court found the accused guilty of the charges and sentenced him as mentioned above.

3. The prosecution case is mainly based on the evidence of Muhammad Jameel (P.W.2), Tariq Hafeez (P.W.3), Rustam Ali (P.W.4) and (Mushtaq Ahmad). Ghulam Akbar and Muhammad Rafiq deposed about the cusoty and remittance of the parcels to the Chemical Examiner.

4. Mr. Birjees Nagy, Advocate, appearing for the appellant before us has assailed the judgment/order passed by the trial Court and has submitted that all the witnesses including the recovery witnesses belong to the police or Excise Department and no effort was made to associate any public witness which speaks of the mind of the police. The alleged recovery is a purely close private affair of the police and the proceedings conducted by the police offend the provision contained in Section 103 Cr.P.C. and the prosecution story is opened to serious doubt, The learned counsel complained that if this practice is encourged nobody would be safe and every once would become indefensible.

5. We have gone through the record and minutely examined the evidence. It has come through Rustam Ali.(P.W.4) that the spy information was received at the police station where Excise Constable Mushtaq Ahmad and. Tariq Hafeez Excise Inspector were present. The raiding party proceeded on a wagon driven by Excise Inspector Taria Hafeez as the place of raid was at some distance and one has to pass through a bazar and the place raided is surrounded by the residential; houses. The accused was found sitting on a bench in front of the Hamam which was not closed. The proceedings of search and the preparation of the recovery memo took about 3/4-hours and according to the prosecution witnesses even by that time the owner of Hamam did not turn up. This is simply unbelievable. D.W.1 (Muhammad Younas) the owner of the "Hamam" has categorically stated that he was there in the shop and had even come before the police after a few minutes as he was busy in attending to a customer. The prosecution' witnesses therefore, do not appear to have stated the truth that nobody, was available on the spot and as such no public person was associated with the search. The learned trial Court has even gone a step further and has expressed himself in the judgment that even if any person was there, none would have come forward to appear for the prosecution. With due respect to the learned trial Court, this conclusion drawn by the Court is simply unacceptable in law. Such an argument is fallacious on the face of it as it renders nugatory: the mandatory provision of law contained in Section 103 Cr.P.C. The raiding party had started from the police station with the only object to search and apprehend the accused yet none from the public was associated though it was not difficult to have an independent person to act as fake purchaser and that would have inspired the confidence of a judicial mind. The submission of the learned counsel for the appellant cannot be easily ignored that the alleged recovery is purely a close private affair of the police and is in violation of the law. The interest of the Excise and Police official is patent as the police was interested in having the accused convicted to bring the investigation to a successful conclusion and thus add a feather to its cap. In chain of cases that have come up before us for some time. We have found that a pattern has been set wherein the recoveries are attested by the police official alone. Normally a disinterested person would be preferred over an interested person for production in Court to prove the recovery. Actually the point involved in this matter is not that who should be believed or not believed. It involves a point of law which the law-makers intended that the police officers at the time o search should be accompanied by two independent persons who should be other than police officer. The principle behind this idea is that it should be ensured that the testimony given, in the Court in regard to the result of a search should not be taken upon the police officers alone but also upon the evidence of independent persons so that all possibility of mischief in the case of the search should be minimized. There is no such a question that the police officers are not the respectable persons or their evidence should not be believed. They are equally respectable persons but the law-makers have not left things to their mercy only particularly in cases of search and public should repose confidence in the administration of justice and this is a golden rule ordained by Islam. Almost the similar view was expressed by a Bench of this Court in Muhmmad Shafi's case reported in PLD 1987 FSC 16. The-Supreme Court of Pakistan in Muhammad Khan v. Dost Muhammad and others PLD 1975 SC 607, has pointed out that the object is to guard against possible chicanery and concoction and the Court will ordinarily insist on a strict compliance with this, requirement and view its non-compliance with suspicion unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court.

Respectfully following the law laid down by the Supreme Court we hold that non-association of the public witnesses in the instant case is deliberate on the part of the police. The decoy witness is witness of the recovery and this definitely creates a doubt in the prosecution case.. A Bench of this Court in Abdul Hameed's case 1987 P Cr. L J 1707 has taken the same view and there is no cogent reason to depart from the view. In this view of the matter when the recovery itself is not free from doubt the report of the Chemical Examiner, does not improve the prosecution case.

6. For the above reasons we are of the view that it would result in a failure of justice not to give benefit of doubt to the appellant in a case of this nature. Therefore we allow this appeal and, set aside the conviction and sentences passed against the appellant and he is acquitted of the offence he has been charged with. He is present on bail. His bail bond stands discharged.

M.Y.H/395/F.Sh ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.