SAMUEL MASIH Versus STATE

Complainant Sakhawat Ali, Inspector Excise, Sargodha received information that appellant Samuel Masih was a drug peddler, he arranged a raiding party on 16-9-1991 and sent Amjad Ali, Excise Constable as a fake purchaser with a marked currency note of Rs.50, at about 4-35 p.m. The latter returned after 20 minutes and produced Charas weighing 20 grams which he had allegedly purchased from the appellant. The Excise Inspector separated 6 grams from the said bulk Charas as a sample for chemical analysis and prepared separate parcels. Thereafter the Excise Inspector carried out a raid on the appellant and recovered more Charas weighing 26 grams from the right side flank pocket of his shirt as also one gram heroin. The Excise Inspector sent the recovered narcotics and written complaint to Police Station Urban Area, Sargodha for registration of the case.

2. After investigation the appellant was sent up for trial before Mr. Ejaz Hussain Baloch, Magistrate 1st, Class, with powers under section 30, Cr.P.C. Sargodha who charged him under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, to which the appellant pleaded not guilty and claimed trial.

3. After the conclusion of the trial the learned Magistrate convicted the appellant for both the offences under Articles 3 and 4 of the Prohibition Order. For the offence under Article 3 of the Prohibition Order the appellant was sentenced to undergo rigorous imprisonment for 3 years, to suffer 30 stripes and to pay a fine of Rs.10,000 or in default to further undergo simple imprisonment for 6 months. For the offence under Article 4 of the Prohibition Order the appellant was sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.10,000 or in default to further undergo simple imprisonment for 6 months. The convict has challenged his conviction and sentence by the appeal in hand.

3-A. Although a test purchaser was sent who allegedly purchased 20 grams Charas from the appellant but no independent evidence was brought on the record to prove that the test purchaser Excise Constable had actually purchased Charas from the appellant. The recovery of only one gram of heroin and 26 grams of Charas from the personal search of the appellant is also doubtful and most probably both the narcotics were planted against the appellant. The latter had made a statement under subsection (2) of section 340, Cr.P.C. wherein he had stated on oath of Bible that on his information one Patris Masih a drug peddler was caught but he was freed by the Excise, Inspector about which he had made a complaint to higher officers and for that reason he had been falsely involved.

4. I have taken into consideration the aforesaid circumstances and I have come to the conclusion that the case was falsely fabricated against the appellant and he was involved in it.

5. For the aforesaid reasons the appeal is accepted. The conviction and sentence of the appellant recorded on 25-6-1992 by the learned Magistrate 1st Class, Sargodha are set aside and he is acquitted of the offence for which he was convicted and sentenced. He is present on bail. His bail bonds stand discharged.

N.H.Q./894/FSC ????????

Appeal accepted