NAZIR AHMAD vs THE STATE

' This is a jail appeal by Nazir Ahmad who has been convicted by Mr. Muhammad Ilyas, Additional Sessions Judge, Khushab, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to undergo rigorous imprisonment for three years, whipping by 15 stripes and a fine of Rs,3,000 or in default, to suffer further rigorous imprisonment for three months.

2. The prosecution case is that during Nakabandi by police at Noorpur Morh (crossing) in the area of Police Station Gunjail, District Khushab, on 1st February, 1992, at about 12 noon, the appellant came up to the said Morh on Mianwali Road, but on sighting the police he tried to make a retreat.

This caused suspicion in the mind of Muhammad Ramzan, Head Constable, Ghulam Hussain, Foot Constable and others who had arranged, the Nakabandi. They caught hold of the appellant and arrested him. On search of his person, 50 grams of heroin was recovered from his possession. Out of the heroin so recovered, six grams was taken out as sample and sealed into a parcel. Then, they drew up complaint, Exh.P.B. Whereupon a case was registered against him. The sample was sent to the Chemical Examiner for examination. It was reported by him that it contained heroin. His report is Exh.P.D. Mushtaq Ahmad A.S.I. Investigated the case. While so doing, he prepared site plan, Exh.P.C. Ultimately, the appellant was challaned and sent up before the learned Additional Sessions Judge to face trial under Article .4 of the Prohibition (Enforcement of Hadd) Order, 1979.

3. The appellant pleaded innocence and claimed that a false case had been cooked up by the police authorities to show their efficiency.

4. Prosecution examined the said Muhammad Ramzan, Ghulam Hussain and Mushtaq Ahmad as P.Ws.1, 2 and 3 respectively and also produced documentary evidence to prove its case. The appellant did not appear as his own witness and also did not produce any evidence.

5. In view of the evidence adduced before him, the learned Additional Sessions Judge found the appellant guilty and convicted and sentenced him as aforesaid.

6. It was contended by the learned counsel for the appellant that except two police officials no' witness was produced to depose that the heroin in question was recovered from the appellant. It was added by him .That according to the statement of Muhammad Ramzan (P.W.1) there were hotels and petrol pump near the place of occurrence but no person from the public was associated with the recovery proceedings. It was also pointed out by him that according to the prosecution it was at the said Morh that heroin in question was recovered and also weighed with the scale carried by Muhammad Ramzan, but it was stated by Muhammad Ramzan that all these proceedings were conducted at the check post near the said Morh. In addition, it was submitted by the learned counsel that there was an unexplained delay of nine days in despatching the said sample to the Chemical Examiner. It was, therefore, the plea/Of the learned counsel that the prosecution had failed to prove its case and the appellant deserved to be acquittal.

7. In reply, it was urged by the learned counsel for the State that the police officials who appeared as eye-witnesses were as good witnesses as those from the general public and their statements could not be discarded simply for the reason that they happened to be employed in the police service. According to him, delay in the despatch of the sam'ple by itself, did not warrant rejection of the prosecution version. He felt that there was no material discrepancy in the evidence of the prosecution and, therefore, the appeal was liable to be dismissed.

8. I agree with learned counsel for the State that mere delay in the despatch of the sample does not justify the acquittal of the appellant but this factor coupled with the other circumstances do make the case against the appellant highly doubtful. One such circumstance is the failure of the police officials to associate any person of public with the recovery proceedings although, as testified by Muhammad Ramzan, who is one of the two eye-witnesses, there are hotels at a distance of 5 or 6 Karams from a check post. Site plan, Exh.P.C. Indicates that the check post is at some distance from the above Morh. Muhammad Ramzan further stated that there is a petrol pump which is about 500 Karams from there. Further, according to Ghulam Hussain, the other eye- witness, the heroin was allegedly recovered from the appellant at the said Morh and it was also weighed there but Muhammad Ramzan had deposed that all the proceedings referred to him by him (including the one relating to recovery of the heroin and its weighing) were completed at the check post. When cross-examined, in the first instance, Ghulam Hussain contradicted Muhammad Ramzan by saying that there was no hotel near the Morh but ultimately he had to concede that the hotels were there although, in his words, they were near the petrol pump. Even this statement of Ghulam Hussain runs counter to the statement of Muhammad Ramzan who stated that the hotels were at a distance of 5 or 6 Karams but the petrol pump was about 500 Karams away from the check post. I do not dispute the proposition that the police officials are as good witnesses as others but when prosecution case entirely rests upon them, their testimony should be scrutinized with utmost care and caution; and if there is any discrepancy in their evidence which creates doubt regarding their truthfulness, their evidence alone would not justify the conviction of the accused. In view of contradictions and other defects pointed out by me coupled with failure of the police officials to associate any member of the public with them in the matter of launching a criminal case against the appellant and delay in the despatch of the sample. I believe that the prosecution has failed to establish the guilt of the appellant beyond the shadow of reasonable doubt. He, therefore, deserves to be acquitted. In taking this view, I am fortified by the judgments reported as Muhammad Nasir Jamal v. The State 1989 MLD 732, Khuda Bakhsh v. The State 1992 P Cr. L J 1158, Muhammad Suhail v. The State PLD 1988 FSC 26 and Badar-uz-Zaman v. The State PLD 1987 FSC 9.

9. In result, I accept this appeal, set aside the judgment of the learned Additional Sessions Judge by which he convicted and sentenced the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and acquit him, by giving him the benefit of doubt. He shall be set at liberty forthwith if not required in any other case.