STATE Through The Advocate General, N. W.F.P., Peshawar vs SOHAIL SARDAR

MUHAMMAD RAFIQ TARAR, J.---This petition by the State through Advocate-General, N.-W.F.P., seeks leave to appeal from the judgment of the learned Federal Shariat Court dated 22-3-1993 whereby Sohail Sardar respondent was acquitted of the charge under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979. One Nasir Ali tried alongwith the respondent was acquitted by the trial Court.

2. The prosecution version was that on 11-2-1991 at 11.30 a.m, a plastic bag containing one kilogram heroin was recovered by a police party from the tool-box of Vespa Scooter which was being driven by aforesaid Nasir Ali with Sohail Sardar respondent on its rear seat. .

3. The trial Court convicted the respondent, only on the basis of his confessional statement made before Mr. Farukh Sair Khan, M.I.C., wherein he admitted having purchased the heroin from Jamrud and concealed it in the tool--box of the scooter when Nasir Ali was away for taking tea.

4. The learned Federal Shariat Court observed that heroin was recovered from the tool-box of the scooter and it was for the prosecution to prove as to "which of the to accused was owner of the said heroin. The appellant could also not be held guilty under Article 3 of the Prohibition Order, for the simple reason that actually he was not transporting the heroin. At the relevant the the acquitted accused Nasir Ali was the master of the scooter. Besides the confession there was no evidence on the record either to prove the ownership of the appellant over the heroin or to prove that he was transporting the same. There was neither any corroboration of the confessional statement nor the same could be relied upon as it was retracted during the trial. Moreover the fact of the confession having no authenticity had also become doubtful as the same was recorded after 4 days of the arrest of the appellant who had alleged that he was tortured in this respect. "

(sic)

5. Learned counsel appearing for the State has contended that the confession made by the respondent before Mr. Farukh Sair Khan, M.I.C. Was unjustifiably discarded by the learned Federal Shariat Court as it was made voluntarily.

6. After giving our careful consideration to the submissions made at the Bar in the light of evidence available on the record we do not feel inclined to interfere with the impugned judgment for the reason that admittedly the .Respondent on his arrest on 11-9-1991 was kept continuously in police custody till 15-9-1991 when he was produced before the Magistrate from the said custody. In cross- examination Mr. Farukh Sair Khan, M.I.C. Stated that the respondent was produced before him on 12-9-1991 and he remanded him to police custody for 3 days. He did not make any statement before him on 12-9-1991. On 15-9-1991 he was again produced before him and he recorded his confessional statement. Since the respondent had remained continuously in police custody for 3 days before he was produced before the Magistrate for recording his confessional statement, it will be unsafe to record a finding of conviction on the basis of such a statement. Consequently this petition is dismissed.