MUHAMMAD TUFAIL ALIAS PAPPU Versus THE STATE

Muhammad Tufail alias Pappu son of Allah Bakhsh, caste Khokhar, resident of Mohallah Kalandar Pak, Hujra Shah Muqeem, has filed this appeal against the judgment of Additional Sessions Judge, Okara, Camp at Depalpur, dated 19-9-1989, convicting him under Article 4 of the Prohibition (Enforcement of Hadd) Order IV of 1979, sentenced him to two years' R.I. with five stripes and a fine of Rs.2,000 or in default of payment of ~ne to further undergo R.I., for six months.

2. According to the prosecution, A.S.I. Muhammad Iqbal (P.W.4) in pursuance of a spy information received by him on 8-1-1988 that the appellant was selling heroin near Tankiwala Mohallah, conducted raid on him and recovered from him il packets said to be containing one gram heroin each and currency notes of Rs.25 and seized them under memo. Exh.P.B. in the presence of Sardar AA Constable (P.W.2) and Zafar Ali, a tonga driver (P.W.3). The A.S.I. then drew up a complaint (Exh.PA.) and sent it to Police Station Hujra Shah Muqeem whereupon F.I.R. (Exh.PA./1) was recorded by S.I./S.H.O.~Nasrullah Khan (P.W.1). Out of eleven, one packet was sent to the Chemical Examiner for analysis and according to Chemical Examiner's report (EXh.P.D.) the said packet contained heroin. The appellant was accordingly challaned.

3. At the trial, prosecution story was supported by A.S.I. Muhammad Iqbal (P.W.4) and the two witnesses Sardar Ali, Constable (P.W.2) and Zafar Ali (P.W.3). The appellant in his statement under section 342, Cr.P.C. denied the allegation and stated that he owned a Tikka Kabab shop. The Police Officers of Police Station Hujra Shah Muqeem used to utilize his chairs lying at his shop. On the day of occurrence he closed the shop and gave a chair to a Constable, who was on duty there, for sitting purpose. On the following day the chair was missing. He demanded the same back whereupon he was taken to the police station and involved in the case. He examined two Councillors namely, Syed Safdar Ali Shah (D.W.1) and Nazir Ahmad (D.W.2) in his defence who supported this version. However, they stated that they did not see the quarrel taking place between the Police Officers and the appellant, themselves.

4. Learned trial Court discarding the defence version and believing the prosecution story convicted and sentenced the appellant as indicated in para 1 above, hence this appeal.

5. Learned counsel appearing on behalf of the appellant submitted that the case is false and that evidence of witnesses of recovery did not inspire confidence inasmuch as Muhammad Iqbal and Sardar Ali P.Ws. belong to police force whereas Zafar Ali tonga driver is a police Razakar and admittedly appeared as witness also in other police cases. Lastly he submitted that the sentence at any rate is excessive. Learned counsel for the State, however, defended the impugned judgment.

6. Considering the facts and circumstances of the case I am of the view that there is overwhelming evidence as to the recovery of 11 packets containing 11 grams of heroin from possession of the appellant. No doubt, two out of three witnesses of recovery are police officers and third is a tonga driver of the locality. It is now well-settled that evidence of a police officer is to be treated as that of an ordinary citizen and cannot be brushed aside merely because the A witnesses belong to Police Force. By going through the evidence of recovery witnesses I find that it inspires confidence, since it is consistent and there exists E3 no animosity whatsoever between them and the appellant. Therefore, I find that the conviction on its basis has been rightly recorded.

7. As for the sentence, I would say that it must be commensurate to the quantum of heroin recovered from the appellant. In this case 11 packets containing 11 grams of heroin in all were recovered from the appellant but only one packet was sent to Chemical Examiner for analysis and according to Chemical Examiner's report that packet was found to be containing heroin. It cannot, therefore, be held that the remaining 10 packets which were not sent for analysis also contained heroin, as such the appellant can be punished for possessing one gram of heroin only. In this view of the matter, I find that sentence of two years' R.I. with five stripes plus fine is definitely harsh. Consequently while maintaining the conviction I reduce the sentence to the period of imprisonment already undergone by the appellant which is little above one month. The appellant is on bail. He is discharged of his bail bonds. The appeal is decided in the terms indicated above.

N.H.Q./M-1244/L Sentence reduced.