MUHAMMAD RIAZ Versus THE STATE
This appeal was sent from Jail by Muhammad Riaz son of Muhammad Siddique Arain. By judgment, dated 3‑4‑1995, Judicial Magistrate (Section 30, Cr.P.C.) Sialkot, convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to R.I. for three years and a fine of Rs.1,000 and in default to further undergo R.I. for six months. The appeal was admitted to regular hearing by order, dated .25‑4‑1995 and Mr. Muhammad Naeem, Advocate, was nominated to represent the pauper appellant. However, Mr. Muhammad Naeem could not appear on account of illness and had handed over the file to Mr. Mian Abdul Qayyum Anjam, Advocate. Today Mr. Mian Abdul Qayyum Anjam, Advocate, is present. He is nominated to represent the appellant. Mr. Muhammad Anwar Dholan, learned counsel for' he State is also present. Both counsel have been heard and with their assistance the record has been perused.
2. According to the complaint of A.S.I. Munawar Khan of P.S. Rangpura on 7‑7‑1993 at 7‑00 a.m. police party headed by the complainant was patrolling on Jammu Road, Sialkot when complainant received information from a 'Mukhbar' that the accused was bringing heroin from Gujranwala. On receiving such information, the police party went to Jinnah Stadium, Sialkot, where the accused was apprehended and, from a shopper bag in his right hand, heroin weighing 855 grams was recovered out of which ten grams were separated and sent for Chemical Examination. Rs.600 were also recovered from the pocket of his shirt. The appellant was arrested and, after completion of investigation, he was challaned.
3. During the trial, only one recovery witness, namely, P.W.1 Constable Mushtaq Ahmad, gave evidence for the prosecution. The only other witness who was examined was P.W.2 Muharrir Muhammad Arif of P.S. Rangpara, who had formally recorded the F.I.R. and had also received the parcels containing the recovered contraband. The complainant, A.S.I. Munawar Khan, who had recovered heroin from the person of the appellant and was also the Investigating Officer did not appear during the trial. In the impugned judgment it is mentioned that though many opportunities were granted to produce the prosecution witnesses, but the witnesses failed to turn up and in the circumstances the prosecution case was closed. The entire case of the prosecution, therefore, depends on the solitary statement of P.W.1 Constable Mushtaq Ahmad.
4. It was argued on behalf of the appellant that in this case no witness from the public was associated in the recovery proceedings and the appellant was handicapped on account of non‑appearance of the Investigating Officer during the trial, who was also head of the police party and the complainant in this case. It was also pointed out that though the `Murasila' sent by A.S.I. Munawar Khan gives the time as 7‑00 a.m., according to the solitary witness Constable Mushtaq Ahmad the police party had left the police station at 7‑30 a.m. for patrolling. It was further pointed out by learned counsel that the appellant has been in continuous custody since 7‑7‑1993 when he was apprehended i.e. for over two years now.
5. In this case, the appellant has been greatly handicapped on account of the Investigating Officer not appearing in the witness box as a prosecution witness. It has already been observed that A.S.I. Munawar Khan, Investigating Officer, was also the complainant and headed the police party which apprehended the appellant and he had also searched the appellant. By examining only Constable Mushtaq Ahmad as a witness, who could not answer, various questions which could have been answered by the Investigating Officer cum‑Recovery Officer. Investigating Officer is not a formal witness. He is an important witness from whom the defence can bring on record several facts which might help the defence and to ascertain the truth and, in this case, it was all the more necessary that A.S.I. Munawar Khan should have been examined as a prosecution witness as he was the recovery officer also. No explanation has been given on behalf of the prosecution for non‑examination of A.S.I. Munawar Khan and other recovery witnesses. The impugned judgment shows that a number of opportunities were given to the prosecution to produce the witnesses, but, for reasons not brought on record, the witnesses were not examined. In the facts and circumstances of the case, I am of the view that it was unsafe to base the conviction of the appellant on the uncorroborated testimony of Constable Mushtaq Ahmad.
6. The next question for consideration is whether the case should be remanded for re‑trail to enable the prosecution to produce the Investigating Officer and other witnesses. In my view, it Will not be in the interest of justice if the case is remanded for re‑trial as the appellant has already undergone more than two years in custody. He was arrested on 7‑7‑1993 and since then he has been in continuous detention. It is a fit case where conviction be set aside.
7. As a result, this appeal is allowed, the judgment, dated 3‑4‑1995 of the trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith unless required in some other case.
N.H.Q./1003/FSC Appeal allowed.