MUHAMMAD BAKHSH Versus STATE C.M. Sarwar , Nemo

The appellant Muhammad Bakhsh and his son Shahbaz faced their trial under section 4 of Prohibition (Enforcement of Hadd) Order, 1979. Vide judgment, dated 7-6-1987, Shahbaz co-accused was acquitted while the appellant was found guilty on the aforesaid charge. Accordingly, the appellant was convicted and sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.200 in default of payment of fine, to suffer R.I. further for a term of one month.

Aggrieved by his conviction, the appellant has filed this appeal, which shall be disposed of through this judgment.

2. The prosecution case in brief is that on 6-2-1985, Inam-ud-Din, Assistant Excise and Taxation Officer, lodged complaint Ex. P.A. with the S.H.O. Police Station Chak Jhumra alleging therein that he had been informed that the appellant was in possession of narcotics. Accordingly, a raiding party consisting of Inam-ud-Din, A.E.T.O., Sh. Muhammad Zahid, Inspector, Qurban Ali, A.S.I., five police constables, one Excise Constable and two persons from the public namely Tariq Mahmood and Abdur Rashid was formed and it conducted a raid at the house of the appellant and at that time, he was found sitting on a cot in the street, in front of his house, situated in New Colony, Chak Jhumra. Appellant was arrested and then the raiding party entered the courtyard of his house. In the courtyard, they found acquitted co-accused Shahbaz son of the appellant, sitting on a cot packing chars and opium in the bags. On seeing the raiding party in the courtyard, the acquitted co-accused Shahbaz climbed on the roof of his house through a wooden staircase and succeeded in running away, leaving behind the two bags of cloth and one plastic envelope on the cot lying in the courtyard. On the search of the appellant, 100 grams opium and 150 grams Charas was recovered from his possession.

From the bags lying on a cot in the courtyard, which were being dealt with by the acquitted co-accused; from one, 500 grams opium was recovered and from the other 375 grams of Charas was recovered and from another plastic bag, 325 grams of heroin was recovered.

3. The samples of these narcotics were sent to the Chemical Examiner for analysis. On the receipt of the complaint in the police station, the formal F.I.R. Ex.P.A./1 was registered and after usual investigation, the 'appellants were sent up to face their trial. `d ,;

14. In support of the prosecution case;, 111,1111-ud-Din, A.E.T.O. appeared as P.W. 3 who supported the complaint lodged by him as well as the recovery from the appellant. Tariq Mahmood, a witness from the public appeared as P.W.4. He attempted to oblige the defence by giving some concessions He stated that Shahbaz acquitted co-accused, was not found in the courtyard but it was some other person. Similarly, he stated in Court that he did not see the recovery from the appellant but he was told by P.W.3 Inam-ud-Din that narcotics had been recovered from the appellant.

Ourban All, A.S.I. and Sh. Muhammad Zahid, Inspector appeared as P.W. 5 and P.W: G respectively. They corroborated the statement of Inam-ud-Din, P.W.3 and proved the recovery. They were cross-examined at length but their credit could not be shaken by the defence. Abdur Rashid, another witness from public was given up by the prosecution as it was stated that he had been won over by the defence.

5. The appellant denied the charge and stated that he had been falsely implicated in this case due to enmity with Ourban Ali, A.S.I.

Two defence witnesses,, were produced by the appellant one of them was Abdur Rashid, a recovery witness who had been given up by the prosecution. Abdur Rashid stated that no recovery had been effected from the spot but he had affixed his thumb-impression on a blank paper, at the instance of the Police, upon which the recovery memo was prepared. Chiragh Ali appeared as D.W.2 He stated that at the time of raid, he was present in the house of one Bashir, a neighbour of the appellant and on hearing alarm, he also came out of the house and saw that the police was searching the person of the appellant who was lying on a cot but nothing was recovered from him. The witness further stated that the acquitted co-accused Shahbaz was also not present in the house and nothing was recovered from there.

The appellant also appeared in his own defence and denied the charge.

6. I have carefully gone through the entire record of the case and I have also heard the learned counsel for the appellant at length.

The learned counsel for the appellant mainly replied upon the concession given by Tariq Mahmood a witness from the public I am not impressed by his statement. The other witness Abdur Rashid, had been won over and that's why, he appeared from the defence side. Similar is the position of Tariq Mahmud, therefore, obliging concession made by him would not help the defence in view of the statement of other witnesses.

The evidence of Inam-ud-Din A.E.T.O. P.W.3 and Qurban Ali A.S.I. i P.W.5 and Sh. Muhammad Zahid, Inspector, P.W.6 cannot be disbelieved. They have fully supported the prosecution case and there is nothing on the record to show that they are deposing against the appellant maliciously or out of animus. Even Tariq Mahmood, the witness from the public, who had obliged the defence, admits that lie was a member of the riding party when the raid was conducted. It cannot be believed that officials would plant such narcotics on the appellant from their own source.

In this view of the matter, I do not find any substance in the appeal and the same is hereby dismissed. The appellant is on bail, he shall be taken into custody forthwith to serve out the un-expired portion of his sentence. However, he will be entitled to the benefit under section 382-B, Cr.P.C.

S.A./M-2011/L Conviction upheld.