SALEEM SHAH Versus THE STATE Hasan Jafar , S. Murtaza Hussain
ABDUR REHMAN KHAN KAIF, J .‑‑This appeal by Saleem Shah, son of Sikandar, resident of Patel Para, Karachi is directed against the judgment of the learned Sessions Judge, West Karachi, dated 4‑2‑1987 whereby on his conviction under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, he was sentenced to five years' R.I., whipping numbering fifteen stripes and a fine of rupees three thousand. In default of payment of fine, he was to undergo further R.I., for six months. The benefit of section 382, Cr.P.C. was, however, extended to him.
2. The prosecution case briefly stated is that Habib Ahmad, Inspector of Police Station Liaqatabad, was on patrol duty on 3‑4‑1986 at 8‑00 p.m. when he received a spy information that a person was selling heroin near the compound wall of Gulberg School Qasimabad, Sindhi Hotel, Karachi. He accordingly picked up Abdul Hameed and Mahmood Khan as Mushirs and raided the place of occurrence at 8‑30 p.m. Saleem Shah, accused was found there and as a result of his personal search a Khakhi paper bag was recovered from the right side pocket of his shirt. The packet contained heroin which on weighment was found 130 grams. The heroin so recovered was taken into possession in the presence of the witnesses and a case was registered in Police Station Liaqatabad, West Karachi at 9‑00 p.m. on the report of Habib Ahmad, Inspector.
3. After the usual investigation, a complete challan was submitted for trial against the accused.
4. The prosecution examined only two witnesses, namely, Mahmood Khan (P.W. 1) and Habib Ahmad, complainant (P.W. 2). Mahmood Khan (P.W. 1) is owner of a Shoe Factory. According to him, he had gone to meet a shoe‑maker and while he was returning, he saw police of Liaqatabad near Gulberg School Qasimabad Karachi. According to him, a man was selling heroin and the police arrested him and called him to appear as a witness of recovery. As stated by him, the police recovered heroin weighing 130 grams from the personal search of the accused which was taken into possession vide recovery memo (Exh. 5), which was bearing his signature as a recovery memo witness. Habib Ahmad, Inspector (P.W. 2) has reiterated the same facts as given in the F.I.R. and has deposed that as a result of the personal search of the accused, he recovered an envelope of Khakhi colour from the right side of his shirt which was found containing 130 grams of heroin. According to him the same was secured in the presence of witnesses vide recovery memo (Exh. 5).
5. In his statement under section 342, Cr.P.C. the accused denied the allegations and professed his innocence. According to him, he had arranged a trap through Anti‑Corruption Police and got arrested Zahid, F.C. and Asghar, H.C. while receiving an amount of Rs.25,000 from him on behalf of one Ch. Muhammad Shafi, S.H.O. and for that reason the police officials had a grudge against him and was accordingly involved in the present case.
6. We have heard the learned counsel for the parties and have also gone through the evidence available ‑on the record with their assistance.
7. As stated above, the entire evidence produced in this case is comprising of the statements of Habib Ahmad, Inspector (P.W. 2) who was S . H . O . , Police Station ? Liaqatabad at the relevant time and that of Mahmood Khan, son of Muhammad Ali, a recovery witness. Perusal of the recovery memo. (Exh. 5) reveals that the recovery was shown made in the presence of three witnesses, namely, Abdul Hameed, son of Abdul Jalil, Mahmood Khan, son of Muhammad Ali and H.C. Ahmad Hussain out of whom Mahmood Khan, was examined at the trial to prove the recovery of heroin from the possession of the accused. From the F.I.R. and the recovery memo, it is evident that all the proceedings leading to the recovery and sealing of the heroin recovered etc. were made at the spot but at the trial a somewhat different version was stated showing that some of the proceedings took place at a shop of a sweet‑meat seller. No such shop‑keeper was either cited as a witness or examined during the trial. The presence of Mahmood Khan (P.W. 1) at the spot at the relevant time is also highly doubtful for the reason that according to Habib Ahmad, Investigating Officer he picked up both the Mashirs on his way to the place of recovery whereas Mahmood Khan (P.W. 1) appearing as a recovery witness has stated that while he was returning from Sindhi Hotel, he saw police of Liaqatabad near Gulberg School apprehending the appellant and it was then that he was called by the police officials to witness the recovery. The name of this witness as given in the F.I.R. and the recovery memo (Exh. 5) is also somewhat different and doubtful. In his statement during the trial the Investigating Officer, Habib Ahmad (P.W. 2) has clearly stated that there was no light at the spot but he was directly contradicted by Mahmood Khan (P.W. 1) by stating that there was street light at the spot and that the recovery memo was prepared under the street light. Similarly, in his cross‑examination, Mahmood Khan (P.W.1) has shown ignorance as to whether the other recovery witness, namely, Abdul Hameed was already present at the spot or was subsequently called by the police to witness the recovery.
8. The accused in his statement has also made a specific reference to F.I.R. (Exh. 13) whereby on his report some police officials of this area were trapped in a corruption case regarding which specific questions were put during his cross‑examination to Habib Ahmad, Inspector (P.W. 2).
9. The learned counsel for the appellant took us through the F.I.R. and the report of Chemical Examiner (Exh. 10) and pointed out that the packet allegedly recovered from the possession of the appellant containing heroin also did not properly tally with one shown received by the Chemical Examiner.
10. On consideration of the facts stated above, we are, therefore, of the view that the recovery in this case, in the stated circumstances, is not free of doubt and the plea raised in his defence by the accused appears quite plausible in the circumstances.
11. For the reasons stated above, we find no good ground for upholding the impugned judgment. The appeal of Saleem Shah, son of Sikandar is accordingly allowed. His conviction and sentences are set aside and he is acquitted of the charge. The appellant shall be released forthwith if not required in any other case.
S.A./364/F‑Sh. ??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.