STATE Versus NAZAR MUHAMMAD

NAZIR AHMAD BHATTI, J.- -- This criminal appeal filed by the State is directed against judgment, dated 4-10-1993 of Mr. Arif Iqbal, Magistrate First Class, Lahore whereby Shaikh Nazar Muhammad and the other respondents were acquitted of the charge under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order. 1979 while exercising powers under section 249-A, Cr.P.C.,

2. It is necessary for the proper appreciation of the matter to narrate the facts in some detail. Altaf Hussain Bhatti, Senior Intelligence Officer (Custom and Excise), Islamabad registered F.I.R. No-34/88 on 13-5-1988 at Police Station Tarnol against one Mian Haroon Shah under Articles 3 and 4 of the Prohibition Order on the allegation that the latter had transported and delivered 18 maunds Charas to Shaikh Nazar Muhammad and Shaukat Ali respondents No.1 and 4 herein, resident of 276 Pak Block, Allama Iqbal Town, Lahore. On 28-5-1988 the said Haroon Shah pointed out the said house but it was found to be locked then. The house was kept under surveillance and some time later two persons came in a car and entered the said house. A raid was conducted by police party and on search of the house 160 kilograms of Charas was recovered and taken into possession, Shaikh Nazar Muhammad, Ijaz Hussain and Mst. Bushra respondents Nos.1 to 3 herein were apprehended and F.I.R. No.296/88 was recorded in Police Station Wahdat Colony, Lahore on 13-7-1988 for offences under Articles 3 and 4 of the Prohibition Order. After investigation all the four respondents were sent up for trial before Mr. Muhammad Ilyas, Magistrate 1st Class, where an application under section 249-A, Cr.P.C. was moved by them which was accepted by the said learned Magistrate by judgment, dated 4-6-1990 and the respondents were acquitted without recording any evidence. Aggrieved by this order the State had filed Criminal Appeal No.369/L of 1990 in this Court 'which was accepted by a learned Division Bench by judgment, dated 29-4-1992 and the learned Magistrate was directed to record evidence and to further proceed according to law. The case was remanded for such compliance. After the remand the case was entrusted to Mr. Arif Iqbal, Magistrate 1st Class who recorded evidence of two prosecution witnesses. Both the said witnesses were alleged to be marginal witnesses of the memo prepared after the recovery of the Charas but both stated that they were made to put their signatures on a plain paper. As such they have not- supported the prosecution story. In the meantime another application under section 249-A, Cr.P.C. was moved by the respondents on 15-5-1993 on the ground that all the witnesses were police officials and they were avoiding service and the respondents were entitled to be acquitted. This application was accepted by the learned Magistrate and the respondents were again acquitted through the impugned judgment.

3. We have minutely perused the entire record of the case and have heard the learned counsel for the parties at length. Most of the prosecution witnesses are of police officials and we have found from the order sheet maintained by the learned Magistrate that summons were issued for their appearance in the Court many times but the same were either returned on the plea that sufficient time was not available for service upon them or the witnesses were not available and could not be served. It appears that deliberate attempts were being made to delay the conclusion of the trial and to prolong the agony of the respondents on account of the rigours of trial.

4. In the circumstances the learned Magistrate was justified in making the impugned order. We do not find any merit in this appeal which is dismissed accordingly.

N.H.O./877/FSC

Appeal dismissed.