BADSHA KHAN Versus THE STATE
The appellant has challenged through this jail appeal the order, dated 28th of December, 1987, passed by Malik Muhammad Aslam, Magistrate 1st Class, Multan, whereby he convicted him under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to three years' R.I. with whipping numbering fifteen stripes under Article 3 and two years' R.I. under Article 4 of the said Order.
2. The occurrence took place on the 23rd of October, 1983, in the house of the appellant in Mohallah Shah Faisal Colony, Multan. The report in writing was lodged by Tanveer Elahi, Excise Inspector, P.W.3, on which a case was registered by Muhammad Akram Moharrir Head Constable (not produced), at Police Station Sadar, Multan. The allegations were that on a secret information Tanveer Elahi, Excise Inspector, P.W.3, formed a raiding party consisting of Mian Javed Haider Shah, Inspector, P.W.1, Mian Kamal Din, Excise Constable, P.W.2 and Mushtaq Ahmad, Excise Constable, P.W.4 in addition to 23 other persons. They went behind the Mohallah Amarabad and hid themselves behind a house. Ali Mohammad, Excise Constable was given a note of 50 rupees and its number noted for the purpose of giving it to a decoy witness to purchase Charas from the appellant. He went to Badshah Khan appellant, who was standing outside his house, gave him- the note of 50 rupees and purchased 50 grams Charas. He then gave a signal on which the raiding party apprehended Badshah Khan appellant and recovered from the right side pocket of his shirt a sum of Rs.50. On further interrogation Badshah Khan led them to a residential room of his house and got recovered from underneath a cot a sack containing 9 kilograms of Charas. Ten grams samples from each of the two materials were taken and the entire material sealed into separate parcels. These were then handed over to Javed Haider Shah, Inspector, P.W.
3. The prosecution examined four witnesses to support its case. Mian Javed Haider Shah appearing as P:W.1 supported the version as given in the first information report but failed to prove if the number of the note had been noted. He also did not say as to where he sent the material which was handed over to him by Tanveer Elahi, Excise Inspector, P.W.
3. Mian Kamal Din, Excise Constable, P.W.2 as well as Mushtaq Ahmad, Excise Constable P.W.4 also supported the prosecution story but they too failed to mention if the number of the note had been noted by any of the witnesses.
4. Tanveer Elahi, Excise Inspector, appearing as P.W.3 also gave the same version as in the First Information Report. He further stated that the recovered material as well as the samples taken therefrom were given to Mian Javed Haider Shah, Inspector. In his cross?examination, he categorically denied that he had either made a signature on the 50 rupees note or had noted its number. He further stated that though he had a made mark on the note yet he had not noted the same for record. He further stated that on the recovery of the note he had not seen the identification mark so as to find if the same note was handed over to the decoy witness for the purpose of making purchase of Charas. He was also shown recovery memo. Exh.P.D. of the Charas to show that the signature of Mushtaq Ahmad was not there. The explanation given by him was that his signature may not have been taken by mistake. He was also shown the duplicate copy which also did not contain his signatures.
5. The appellant in his statement under section 342, Cr.P.C., denied the allegations against him and stated that neither was any Charas purchased from him nor any recovery made from his house. According to him, he had been falsely involved by Mian Javed Haider Shah, Inspector, who wanted to prove that he was a very efficient Police Officer. He also charged him of taking from him a sum of Rs.7,500, a licensed revolver, 25 rounds and a watch. He produced two defence witnesses to prove that he was a man of good character and was not dealing in Charas or opium and that no recovery was made from him.
6. It is contended by the learned counsel for the appellant that even if the entire prosecution version is to be accepted as correct there is no evidence on the record to show that the material recovered from the appellant was an intoxicant to attract the offence of which he was charged. The learned counsel, has also sought support from the omission on the part of the prosecution to have produced All Muhammad as a witness. According to him, he was a very important witness for the reason that all other P.Ws. were standing behind the house and could not see if Ali Muhammad had infact purchased the contraband material from the present appellant. The learned counsel has also sought support from the omission on the part of the prosecution witnesses to have mentioned that the note which was given to decoy witness had any identification mark or that its number had been noted so as to see that it was the same note which had been given by the prosecution for the purpose of purchasing the said quantity of Charas.
7. The learned counsel for the State is not in a position to meet the objections of the learned counsel for the appellant that the material allegedly recovered from the appellant was an intoxicant so as to attract the offence of which he had been charged. Undoubtedly, the case of the prosecution is that the appellant was found in possession of contraband material which is an intoxicant as given in Article 2(g) read with Articles 3 and 4. It is in the evidence of all the persons that some material was recovered from the appellant. Tanveer Elahi. Excise Inspector, P.W.3, stated that he had given the material at well as the samples drawn therefrom to Mian Javed Haider Shah, Inspector, P.W.1. Mian Javed Haider Shah, Inspector, also supports the recovery but does not say that he received the material and send it onward either for safe custody or for analysis to the Chemical Analyst. There is also no other witness to say that the same material had reached the Chemical Examiner's office intact. Even Ali Muhammad the star witness of the case has not been produced and he wasp neither mentioned in the calender of witnesses nor any explanation given as to why he was being withheld.
8. This case was registered on the 23rd of October, 1983. The decision of the trial Court is dated 28th of December, 1987. It has, therefore, taken more than four years to conclude. It was a case o. raid and all the witnesses who were to be examined in this case were not only eye-witnesses but belonged to Police Department or the Excise Office. The case, therefore, could have been finished in less than one month. It is not clear from the record why it was inordinately delayed. I think that it is a case which the learned Sessions Judge, Multan shall enquire into, record the causes for this delay as it might amount to interference with the course of justice. A report shall be sent within a period of three months.
9. Even the conduct of the prosecution is not beyond objection. Ali Muhammad, the star witness of the case was neither cited nor produced as a witness and no explanation for it has been supplied. The prosecution version was that the witnesses were standing away from the sight of the appellant, for if this was not done Ali Muhammad would not have been able to purchase any Charas from the appellant. Consequently, none of them would see either passing of currency not or the alleged contraband material. In addition Mian Javed Haider Shah, Inspector, in whose custody recovered material had been given did not say a single word as to its custody or further despatch to the office of the Chemical Examiner for the purpose of analysis. No witness has been produced to say that the material was either kepi in safe custody or was delivered intact for analysis.
10. There is thus neither evidence of the sale of the material nor about the fact that what was recovered was an intoxicant covered by the Ordinance. It is also surprising that the report of the Chemical Examiner Exh.P.E. was placed on the record by Mr. Ayub Sohail, A.D. A., but he did not care to see if there was some evidence to connect the report with the material recovered. Even the accused/ appellant was not apprised of this report. The result is that it is one of those cases which the prosecution poorly neglected.
11. Normally, I would have sent this case back for retrial but the inordinate delay in the trial, the indifferent and negligent attitude of the prosecution and the deliberate or wilful effort on the part of Tanveer Elahi and Mian Javed Haider Shah to resile from the original D version of noting the number of the note show that no useful purpose will be served. Consequently, though I would like the authorities to inquire into the conduct of the witnesses and the prosecutor I would allow this appeal, set aside the conviction and the sentences anti acquit the appellant of the charges. The appellant shall be released forthwith if not required in any other case.
M.B.A./399/F.Sh. ??????????????????????????????????????????????????????????????????????????????? Appeal accepted.