Mst. IQBAL BIBI vs THE STATE

' This appeal is directed against the judgment and order, dated 14-9-1999 passed by learned Sessions Judge, Haripur whereby the appellant was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to undergo two years' R.I. And to pay a fine of Rs,5,000 or in default of payment of fine to undergo six months' R.I. Benefit of section 382-Be Cr.P.C. Was also given to the accused-appellant.

2. Brief facts of the case are that on 29-6-1996 Muhammad Safdar Khan, S.H.O., Police Station Khalabat Township alongwith constables namely Saeed Akhtar I.M.C. And Irshad H.C. No,235, Arshad No,271 and lady constable Fukhraj Bibi No,160 was present on Gasht at Chowk Syedan Sector No,2. In the meanwhile Mst. Iqbal Bibi alias Bali daughter of Abdul Latif came from street towards Chowk. On suspicion she was stopped. Lady Constable Fukhraj Bibi No,160 recovered a plastic bag from the hand of Iqbal Bibi which was checked and heroin was recovered from the bag which was weighed and found to be 50 grams. Out of the recovered heroin, one gram was sent for chemical analysis and remaining 49 grams were sealed in another parcel. The appellant/accused was arrested and Murasila for registration of case was sent to police station which culminated into registration of case vide F.I.R. No,263 at Police Station K.T.S. Haripur.

3. I have heard Mr. Saeed Akhtar Khan, Advocate the learned counsel representing the appellant and Mr. Muhammad Ayub, learned A.A.-G. Representing the State.

4. The argument of the learned counsel for the appellant that the prosecution has failed to establish its case beyond shadow of doubt and is full of material contradiction has a force in it.

Muhammad Irshad No,238 appeared as P.W.I. In his cross-examination he stated:- "After that he took one gram and packed and sealed into the parcel. He also placed a paper under the one gram heroin at the time of weighing one gram for chemical analysis. The empties Purries were also packed in a separate parcel after weighing the suspected material and the plastic bag was also packed into parcel. It is correct that we all went back to police station after the patrol duty alongwith accused and case property. I cannot tell the exact weight of a PWries from where the sample was taken."

5. His statement indicates that the sack in which the alleged heroin was recovered contained Puns but Muhammad Safdar, S.H.O. Who appeared as P.W.3 when cross-examined stated:-- "The alleged recovery was affected by Fukharj Bibi and then he produced the plastic sack and accused appeared before me and as per her statement she had recovered that sack from accused. There was no Purri in the plastic bag and the total heroin was lying in a lot in the plastic bag. I took one gram from total lot and not from one Purri because no Purri there."

6. On remand Mst. Fukhraj Bibi was examined as C.W.1, who in the cross-examination -stated:- "I did not check whether there was any Purri or not, I only handed over the sack to the S.H.O. The scale was in the investigating bag of the S.H.O. I cannot say that whether they placed the sack on one side or whether they placed the botts on other side or not. Because it was the job of police. In my presence sack was not weighed but one gram was taken out from material and was weighed."

' The statements of all the three P.Ws. Contradict on the material point of recovery. P.W.1, stated the sack contained Purris and out of one Purri only one gram was sealed and sent to F.S.L. Whereas Safdar P.W.3 stated that he recovered heroin in a lot and there was no Punt C.W.1 stated that the heroin was not weighed in her presence and only one gram was taken out from the sack and she was not aware as to whether the sack contained Purris or heroin in lot.

7. The other argument of the learned counsel for the appellant that the prosecution was duty bound to produce case property in Court but it failed to produce the same in Court. The case property being not available on record and the case against the appellant had become doubtful and benefit of which must be given to her has a force in it. It is an admitted position that no case property was produced during the trial although 50 grams were alleged to have been recovered from the appellant, out of which only one gram was sent to chemical analysis for examination and the rest, i,e,, 49 grams were retained as case property. There is nothing on record to show that the remaining recovered powder was ever destroyed by the prosecution on the order of the Magistrate or was not available on record because no such order of the Magistrate was placed on record. It is the duty of the prosecution to produce all evidence which is necessary to bring home the guilt of the accused beyond any doubt whatsoever. In the present case, as mentioned above although 49 grams were retained as case property but the same was neither produced before the trial Court nor any certificate of the concerned Magistrate regarding its destruction was produced on record.

Since there was no case property available on the record the matter had become doubtful, the benefit of which must go to the appellant.

8. The third argument of the learned counsel for the appellant is that there was delay of 5 days in despatching the parcel to F.S.L. Which makes the case of prosecution doubtful. This argument has force in it. The alleged recovery was affected on 29-6-1996 whereas the Report of the Chemical Analyst shows that one gram of heroin sent by prosecution was received in laboratory on 3-7-1996, i,e,, with the delay of 5 days. There is no explanation available on record as to in whose custody the said parcel was lying for 5 days. The delay in despatch of the recovered heroin has made the report of F.S.L. Doubtful and unreliable.

9. The fourth argument of the learned counsel for the appellant is that the recovery was allegedly effected from the appellant in a Chowk which is busy but no person from public was associated.

The recovery was only witnessed by the Police Officials, hence the entire recovery was doubtful.

This argument of the learned counsel has no force. Police officials had no mala fide or motive for falsely charging the appellant. There is nothing on record to show that the Police Authorities were inimical towards the appellant. People from public now-a-days do not come forward in such-like cases to be cited as witnesses and there are chain of authorities in which the police officials have been declared to be as good witnesses as that of public witnesses.

10. The net result of the above discussion is that the prosecution has not been successful to prove its case against the appellant beyond any reasonable doubt. As such, while giving benefit of doubt I accept the appeal and acquit the appellant. The conviction and sentence passed by the learned trial Court are set aside. The appellant shall be set at liberty if no more required in other case.