UMAR HAYAT Versus THE STATE Malik Noor Muhammad Awan , Muhammad Aslam Uns for the State.

IBADAT YAR KHAN, J.- -- Appellant Umar Hayat has been found guilty of offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer a term of five years' R.I. whipping numbering ten stripes and to pay fine of Rs.2,000 or in default thereof to further undergo R.I. for six months by the Sessions Judge, Mianwali vide judgment dated 12-4-1990. The incriminating article recovered from his possession on the day of occurrence is said to be 20 grams of heroin. He has filed this appeal against this conviction.

2. The prosecution has examined two witnesses of recovery. Both happened to be Police Officers.

3. P.W.3 Muhammad Arshad, A.S.I. posted at Police Station Daud Khel during the relevant period, has stated that on 28-10-1989 he, alongwith a number of police constables and Ghulam Murtaza, S.I./S.H.O, was on patrol duty for checking illegal arms and narcotics. At about 6-00 a.m. when the party happened to be at a place called Chowk Pakki Shah Mardan they received a secret information that Umar Hayat was selling heroin near his house at Daud Khel. The party proceeded to the place mentioned by the informer and round about 6-00 a.m. when they reached the place of occurrence they saw Umar Hayat appellant standing in front of his house in Daud Khel Town. The party apprehended him and Ghulam Murtaza, S.I. conducted personal search of the accused and recovered an envelope containing 20 grams of heroin. The heroin weighing two grams was separated from this recovery for the purposes of chemical examination. This sample and the remaining heroin were separately packed and sealed as Ex.P.1. under a recovery memo. (Exh.P.B.). This memo was signed by Muhammad Riaz, A.S.I. A sum of Rs.470 in currency notes of denomination of 50, 10 and 5 were also recovered and seized.

4. P.W.4 Ghulam Murtaza, S.I./S.H.O., has corroborated the statement of P.W.3 and made a similar statement as the P.W.3 mentioned above.

5. The appellant has denied the recovery. Indeed he has denied the occurrence itself. Actually he has disowned the amount of Rs.470, which is said to have been recovered from the possession of the appellant at the time of his body search on that morning. The appellant in answer to question No.7 has stated that he is a poor labourer and has a family including small children; that he has been falsely involved in the case by the police. The appellant has also made a statement on oath under section 340(2), Cr.P.C. and offered himself for cross-examination. In this statement, he has given full side of the picture. In substance the plea raised in this statement is that prior to this incident his young son had died and the people were coming to his house for condolence. One Noor Khan of Mauza Chab had come to condole the death of his son and was staying with him. On 27-10-1989 in the evening a constable from Police Station Daud Khel came to the house and told him that he was wanted by the Thanedar in the police station. The appellant and his guest accompanied the constable. When they reached the police station Ghulam Murtaza booked both of them in false cases on the charge of possession of heroin. As he did not return from the police station some Mohalladars, Lambardar and Councillor went to the police station to protest against his detention but the S.H.O. remained adamant and did not release them. The plea of defence has been supported by as many as three independent public witnesses, namely D.W.1 Abdullah Khan, Chairman Town Committee, Daud Khel, D.W. Ahmad Khan, a cultivator and immediate neighbour of the appellant and D.W.3 Sher Bahadur, a contractor, working in the area, who is also employer of the appellant. The appellant was working as a Munshi with this witness for about 6/7 years. All these three witnesses produced in defence have supported the version of the appellant that he was actually picked up from his house. To be precise, he was first called to the police station on the evening and detained there, for the night; that the people of the Mohallah had gone to the police station to enquire about the appellant but to no avail. They are all common on the point that no incident had taken place on the morning of 28-10-1989 and no recovery of heroin was ever made. Further, the accused appellant bears good character and had never indulged in drug trafficking.

6. The perusal of the evidence discloses that the two police witnesses swearing for the recovery of heroin from the possession of the appellant are contradicted by the statement on oath of the appellant himself as well as by the three independent respectables of the locality.

7. The learned counsel for the appellant has argued that the pre-dawn time in the cold winter month can be most unsuitable time for hawking about for narcotics. Neither the addicts usually use narcotics at that hour of the day nor indeed they would choose such a time for making purchases. This strong circumstance in favour of the appellant is, however, offset by the fact of admission of the appellant that there was no previous enmity between the police and the appellant. Any convincing reason for falsely involving the appellant without any enmity with the police is not forthcoming. The argument of the learned counsel that if it was a case of prior information as admitted by the Police Officers themselves there was no reason not to associate any independent public witness to witness the recovery, has some substance. Yet if we make this as a precedent for rejecting the statement of police it would have far reaching consequences and most of the cases brought to us would not withstand the test of scrutiny in the Courts. We, however, cannot help expressing that this is the most undesirable conduct of the police not to bring best evidence in support of recoveries in such matters even in case when they have time and opportunity to do so. We would say nothing in this regard, because in a number of cases observations have been made and even methods of investigation suggested in quite a number of our judgments. Reference may be made to our observations in the case of Fazal Qadeem v. The State 1990 M L D 1199 in which one of us had made the following observations:--

"(11) Before parting with the case we have to once again express our concern and anguish on the manner the investigation is conducted in these cases. Usually there are only two police witnesses; one Sub-Inspector and the other either a constable or Head Constable to prove the recoveries. In, practically, all the cases the recovery is denied and false implication is pleaded by the accused. If we reject the evidence of the two police witnesses either on account of quality or quantity then a large number of cases--a very big percentage indeed would result in acquittals. In all the cases when this meagre evidence is placed in juxtaposition to the plea of the accused that he has been involved as a scapegoat for some wealthy owner of the narcotic or on account of some questionable motive, judicial conscience remains disturbed. In quite a number of cases allegations of misconduct have been found to be true. Indeed in several cases of grave misconduct we have made observations against the Investigating Officer concerned and referred the cases to the Government concerned. Once again we have to point out that techniques of investigation in these cases should be improved. As the punishments are very severe under these laws, it is necessary that the standard of proof' should be commensurate to the quantum of punishment. The standard of proof should be upto the mark of the gravity of the charge.

(12) The investigation of the cases should be such that it should ensure adequate retribution to the real offender howsoever high he may be. At the same time there should not be slightest element of doubt that some innocent person however, low in social order he may be, is being hooked up or being harassed as an escaped goat for someone else.

(13) If the investigative methods and techniques are improved and brought in line with investigation of similar crimes in other countries and scientific techniques are employed in investigation to prove culpability of the accused it would not only cut down the number of witnesses but would also inspire more confidence in the investigation. Recoveries of heroin and other narcotics should be video filmed on the spot and statements of the accused and other witnesses taped at the time of recoveries. In the result very little scope would be left to the offender to advance a plea of his false involvement or to disown the recoveries.

(14) The charges of false involvement and corruption made by the accused should be taken a serious note of and investigated. If found true exemplary/deterrent action should be taken against the officials concerned. If charges of false involvement are persued in a few cases and exemplary punishment in addition to dismissal from service is awarded to the delinquent officer it would go a long way in curing the evils that prevail in the present situation. A witness once found to be unworthy or untruthful stands condemned for ever under the Islamic concept of Tazkiatul Shahood, which is now very much a part of our legal system."

8. The next leg of the argument of the learned counsel was that not a word has been mentioned about weighing the heroin and there is no evidence to establish that the quantity recovered was more than ten grams. By pressing this point the learned counsel wanted to take the case out of pale of the second proviso to Article 4 of the Order wherein the punishment provided is maximum two years if the quantity of heroin is not more than ten grams. As no positive evidence, not even a bare statement that the heroin was ever put on scale to determine its weight is forthcoming, the possibility of its being less than ten grams cannot be completely ruled out. If this possibility is accepted then the case would fall under the first part of Article 4 of the Order which runs as under:--

"Whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine."

9. Mr. Muhammad Aslam Uns, learned counsel for the State conceded that in the absence of weighment it cannot positively be asserted that the quantity was more than ten grams. A doubt is created and the benefit of this doubt must go to the appellant. As the punishment under the first part of Article 4 of the Order is maximum two years, we would reduce the sentence from four years to the period already undergone. The sentence of whipping is set aside. The fine is, however, maintained. The appellant shall be released forthwith on payment of fine. The appeal stands partly allowed to the extent indicated above.

N.H.Q./565/F.S.C.

? ?????????? Appeal partly allowed.