MUHAMMAD ISHAQ Versus THE STATE
This appeal has been filed by Muhammad Ishaq son of Fateh Muhammad, against the judgment of Sessions Judge, Attock, dated 26-7-1990 in case F.I.R. No.393, dated 11-11-1987 under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979; whereby the learned Judge convicted and sentenced the appellant for two years and fine of Rs.1,00,000 in default of payment of fine to further undergo 6 months'. R.I.
2. Briefly facts of the case are that at 5-00 p.m. on 11-11-1987, Inayat Ullah, S.-I., Police Station Sadar, Attock, through Muhammad Afzal,-Constable No.768 sent complaint Exh.P.B. to the police station, for the registration of a case under Article 3/4 'of Prohibition (Enforcement of Hadd) Order, 1979, saying that at 5-00 p.m. he alongwith Akhtar Ali Khan, A.S.-I., Ghulam Shabeer, H.C. No.787, Zameer Ahmad, H.C. No.317, Abdul Samad C.No.650, Muhammad Afzal, Constable No.768, Khial Badshah, Constable No.786, Amjad Iqbal, Constable No.173 and Amir Dad, Constable No.575 (Zamir Ahmad, Abdul Samad, Muhammad Afzal, Khial Badshah and Amjad Iqbal, Constables not produced) while on patrol were present at Chowk Mirza, when a secret information was laid with him that Muhammad Ishaq accused who had a shop of electric goods in the village had imported a huge quantity of narcotics, comprising Charas and opium and a little before after storing it in the house owned and occupied by him and after locking the same reached his shop and a raid was conducted, the drugs in sufficient quantity could be recovered. On the receipt of the information alongwith his party men he collected Muhammad Ishaq accused from his shop, who led them to the close6y house, comprising of only one room. The door of the room was got opened from Muhammad Ishaq accused from alongwith the eastern wall three bags of Charas, two bags containing 48 packets each and one bag containing 50 packets, total 146 packets which on weighing came to weight one kilogram each. The total drug came to 146 kilograms. Close by from a polythene bag opium was recovered which on weighment came to 3300 grams. From all the packets small quantity of Charas and total of which came to 146 grams were taken out as sample Charas and rendered into sealed parcel whereas the rest of the Charas was sealed into three bags, two containing 48 packets each and one containing 50 packets. From the recovered opium 10 grams was taken out as a sample and rendered into a sealed parcel whereas the rest made into another sealed parcel. The seal contained the identification of M.H. The Charas and opium were taken into possession through memos. He claimed that Muhammad Ishaq accused by keeping Charas and opium on him had committed an offence under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979. On the said complaint formal F.I.R. Exh.P.A./1 was recorded and a case registered against the accused under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and the accused Muhammad Ishaq was arrested.
3. The prosecution examined as many as ten P. Ws. in support of its version; gave up Fazal Ellahi P.W. as being unnecessary and tendered in evidence report of the Chemical Examiner Exh.P.P.
4. P.W.1 Inayat Ullah, S.-I. fully supported the version of prosecution; who had received the secret information; had headed the raiding party recovered the opium; drafted the complaint Exh.P.B.; arrested the accused; investigated the case and got challaned the convict, P.W.2 Mian Muhammad, S.H.O., Police Station Attock Khurd did not support the version of prosecution and deposed being S.H.O. of the police station under the orders of P.W.5 Malik Muhammad Bashir, D.S.P. got the convict discharged and submitted the challan against Bahrain Shah and Bashir Ahmad, accused hence acquitted. P.W.3 Ijaz Hussain, Constable and P.W.4, Amir Dad, Constable were the formal witnesses who supported the prosecution version. P.W.5 Muhammad Bashir, D.S.P. deposed that in his investigation entrusted to him by the S.P. found the appellant innocent; found Behram Shah and Bashir Ahmad the actual culprits; directed the S.H.O. to let off the appellant and to arrest Behram and Bashir being the culprits. P.W.6 Ghulam Sarwar, H.C. being member of the raiding party and recovery witness fully supported the prosecution version; P.W.7 Akhtar Ali, S.-I. received the secret information; headed the raiding party; recovered Charas vide sealed memo. P.1 to P.3; drafted complaint Exh.P.B. investigated the case and got the appellant challaned. P.W.8 Mst. Safia Begum deposed that the appellant born from the womb of her real sister; had rented out the house being real owner to Bashir and Behram; hence acquitted accused from where Charas was recovered. P.W.9 Javed Khan deposed that Bashir Ahmad hence acquitted accused had shown him bags full of Charas and of opium and had asked to find out customers for him on commission basis. P.W.10 Ihsan Ullah deposed that Bashir accused had informed him that he had hired the house for suttering material.
5. The appellant/convict was examined under section 340, Cr.P.C. and pleaded innocence as he was declared innocent by the police during investigation and produced in his defence certified copies of the orders Exh.B.D. and Exh.D.E.
6. The learned counsel for the petitioner vehemently contended that the appellant was declared innocent and was got discharged from the Ilaqa Magistrate by the prosecution; further the mandatory provisions of section 103, Cr.P.C. were not complied with and the prosecution failed to prove its case beyond doubt; while the learned counsel for the State was unable to refute the arguments of learned counsel for the appellant.
7. I have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.
8. Admittedly the appellant was found innocent by the P.W.5 during the investigation entrusted to him by the S.P. and was got discharged by the P.W.2 Mian Muhammad S.H.O. Behram Shah and Bashir Ahmad neither named in the F.I.R. nor arrested or present at the spot were found being actual culprits by the P.W.5 Muhammad Bashir D.S.P. and were challaned but were acquitted by the learned trial Judge as benefit of doubt was granted to them.
9. The observation by the learned trial Judge that it is a case which can be cited as a classic example of the police somersault and a living example of the secret long hands of. the drug traffickers is not without force. The manner the prosecution case had been damaged and re-investigation was conducted; appears to be extremely unusual and certainly was a result of a strong prompt from behind the curtain as even at the trial stage the District Attorney pleaded innocence for the appellant and claimed the other two, accused, hence acquitted, as guilty; the learned trial Judge's predecessor made a query, to which the S.P. and the S.M. reported innocence of the appellant. The manner P.W.5 Muhammad Bashir, D.S.P. turtled the entire case of the prosecution was result of strong pressure.
10. The learned counsel's contention that the prosecution failed to prove its case beyond shadow of doubt is not without force as the appellant was found innocent by the P.W.5 D.S.P. during the investigation entrusted to him by the S.P. was also found innocent by the D.M. and S.P. on the query of learned trial Judge's predecessor.
11. The learned trial Judge convicted the appellant in spite of the fact that the prosecution claimed innocence of the a0pellant and did not give weight to the opinion of prosecution as well as to the opinion of D.S.P. and S.P. It is the prosecution who is duty bound to prove its case beyond any shadow of doubt; the Court has to decide a case on the basis of evidence led before it and cannot convict and accused on surmises and of its own opinion. The prosecution had not been fair in the case from the beginning as all the witnesses in the case were only police officials; got the appellant discharged; had enough time after receipt of secret information to obtain search warrant and to associate public witnesses in compliance of section 103, Cr.P.C. being mandatory in nature; legally speaking, the prosecution did not in fact prosecute the appellant but has been prosecuted by the Court as in fact a heinous crime though committed but had been let off because of hidden hands.
12. I am of the opinion; the conviction on the basis of prosecution evidence is unwarranted and the appellant like the others is entitled to the benefit of doubt; hence acquitted.
13. Though the accused/appellant is entitled to acquittal but those who played havoc with the prosecution case in which huge quantity of opium and Charas was recovered; should not be left unchecked but be dealt with iron hand; being in fact the actual culprits; the case in hand being a classic example of the police somersault and a living example of the secret long hands of the drug traffickers; a copy of the judgment alongwith the order of learned trial Judge be sent to the Cheif Secretary, Government of the Punjab and the Deputy Inspector General, Rawalpindi Division who shall take necessary action against the delinquent officers/officials who were instrumental in destroying the prosecution case under intimation to this Court.
14. With these observations, the appellant is acquitted of the sentences awarded to him. The appellant is on ball, his bail bonds stand discharged.
N.H.Q./M-73/L Appeal accepted.