EHSAN ULLAH Versus STATE

By judgment, dated 22-2-1994 of the Judicial Magistrate (Section 30, Cr.P.C.) Vehari, the petitioner, Ghulam Muhammad son of Ahmad, was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and awarded 25 stripes and a fine of Rs.1,000 and in default to undergo further S.I. for three months. The petitioner filed an appeal which was disposed of by the learned Additional Sessions Judge, Vehari by judgment, dated 9-3-1995. The appeal was dismissed on merits, but the sentence of stripes was converted by rigorous imprisonment of one year and a fine of Rs.1,000 and in default to further undergo three months S. I. Being aggrieved, the present revision petition has been filed. I have heard the arguments of Mr. Malik Waqar Salim, Advocate for the petitioner, and Mr. Imtiaz Ahmad Chaudhry, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.

2. According to the prosecution case (F.I.R. No. 117, dated 8-7-1992 of Police Station City Vehari) on 8-7-1992 at 7-00 p.m., while on patrol duty, the police party headed by P.W.2 S.-I Khizar Hayat (complainant and the Investigating Officer) apprehended the petitioner and recovered 250 grams of opium from him. After investigation, the petitioner was challaned. During the trial, the prosecution examined P.W.1 Constable Fiazur Rahim who had taken the parcel to the Chemical Examiner; P.W.2 is S.-I. Khizar Hayat the head of the raiding party, complainant and the Investigating Officer; P.W.3 is A.S.-I. Muhammad Siddique who had formally recorded the F.I.R. on the basis of the complaint received from S.-I. Khizar Hayat and P.W.4 is Head Constable Sardar Ali, also a recovery witness. Exh.P.D. is the Chemical Examiner's Report, according to which the sample sent was found to be opium. The statement of the petitioner was recorded under section 342; Cr.P.C., but, as observed, the petitioner was convicted by the trial Court and his appeal was dismissed on merits but the sentence of stripes was substituted by sentence of rigorous imprisonment of one year, but the fine was maintained.,

3. In support of the present revision petition challenging the conviction of the appellant, Mr. Malik Waqar Salim, learned counsel for the petitioner, has submitted that there is violation of section 103, Cr.P.C. there are contradictions in the evidence of the two recovery witnesses examined, namely, P.W.2 and P.W.4; the sample of ten grams was taken and sent to the Chemical Examiner for report, but, according to the Chemical Examiner's Report, the weight of the sample was 8 grams and this creates a doubt about the prosecution case.

4. On the other hand, it was argued on behalf of the State that police witnesses are competent witnesses and failure to examine public witnesses from the locality is not fatal to the prosecution case. According to Mr. Imtiaz Ahmad Chaudhry, learned counsel for the State, the contradictions pointed out by learned counsel for the petitioner are minor in nature and do not affect the prosecution case about the recovery, but learned counsel for the State could not give any reply about the entry in the Chemical Examiner's Report that the sample received weighed 8 grams whereas, according to all the prosecution witnesses as well as the F.I.R., the sample Which was sent weighed 10 grams.

5. It is an admitted position that the recovery was made near cattle market in the city, a very populated area, but no witness from the public was joined as recovery witness. No explanation has been given for this omission. There is violation of the mandatory provisions of, section 165 read, with I section 103, Cr.P.C. Reference may be made to the latest decisions of the Supreme Court of Pakistan in the case of Mirza Shah v. The State 1992 SCMR 1475 and Mahmood Ahmad v. The State 1995 SCMR 127.

6. Then the entire case of recovery depends on the report of the Chemical Examiner. The consistent version on behalf of the prosecution in the F.I.R. and the evidence of the prosecution witnesses is that, from the recovery, ten grams were separated and sent to the Chemical Examiner for report. However, the Chemical Examiner's Report (Exh.P.D.) shows that the sealed packet received by the Chemical Examiner, Multan, weighed 8 grams. No explanation appears on record in the evidence of the prosecution witnesses about this discrepancy. Learned counsel for, the State also could not give any reply about this discrepancy. A doubt has been created whether the report of the Chemical Examiner (Exh.P.D.) is in respect of the sample sent by the police in this case or it relates to other sample of some other recovery. A doubt has been created about the contents of the recovery from the petitioner, benefit whereof has to go to the petitioner.

7. It has also been noticed that there are some contradictions in the evidence of the two recovery witnesses, namely, P.W.2 Khizar Hayat and P.W.4 Sardar Ali. According to S.-I. Khizar Hayat, head of the raiding party the entire raiding party had gone on motor-cycles and he specified the different motor-cycles used by the members of the party. However, P.W.4 Head Constable Sardar Ali, a member of the raiding party stated in very clear terms that all the members of the raiding party had gone on foot.

8. In view of the above reasons I am of the view that the case against the petitioner had not been established by the prosecution. As a result, this revision petition is allowed, the two judgments of the trial Court and the learned Additional Sessions Judge (Appellate Court) are set aside and the petitioner acquitted of the charge.

On close of the arguments in this case earlier today, by a short order, this revision was allowed. Detailed reasons for the short order are contained in the present judgment.

N.H.Q./992/FSC Revision accepted.