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Criminal Appeal No. 73/L of 1985, decided on 4th December, 1985.

‑‑‑Art. 4‑‑Recovery of 3 Kgs. of Heroin‑‑Heroin packed in locked suit case‑‑Suitcase recovered from house of accused at pointing out of co‑accused‑‑Key of suitcase also with co‑accused‑‑Accused not present at time of alleged recovery‑‑No evidence available to suggest that accused knew about contents of suitcase or even presence of suitcase in his house‑‑No case was made out against accused in spite of high powered raiding party‑‑Challan against accused found to be baseless‑‑Appeal of accused was accepted in circumstances.

‑‑‑Art. 4‑‑Recovery of Heroin‑‑Recovery allegedly at instance of accused‑‑No evidence of arrest of accused or recovery of key from him with which box containing Heroin was opened‑‑No witness having deposed about disclosure made by' accused about box containing Heroin or being placed in house of co‑accused‑‑Raid conducted at a busy place at 4‑30 p.m.‑‑None of public witness joined in recovery of proceedings or investigation‑‑Superintendent of Police who was head of raiding part, not produced‑‑Investigating Officer, a D.S.P., knowing nothing about facts, place of recovery or type or number of vehicles used for raid Prosecution evidence on record, did not inspire confidence and arise was either totally false or prosecution had purposefully failed to perform duty imposed on it by law which resulted in miscarriage of justice-‑Conduct of Investigating Officer was not understandable Appeal was therefore, accepted and accused acquitted of charge in circumstances.

Ghaus Muhammad Ch. for Appellant.

M.M. Saeed Baig for the State.

Date of hearing: 4th December, 1985.

The appellant assails the order dated 17th of February, 1985 passed by Mr. Muhammad Akram, Magistrate Section 30 at Lahore. He convicted him and his co‑accused Muhammad Umar under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced each of them to 4 years' R.I., with a fine of Rs.5,000. In default of payment of fine they were to suffer 6 months' R.I., further. Muhammad Umar has also filed a separate Appeal No. 121/L of 1985 which shall also be disposed of by this order.

2. The occurrence took place on the 23rd of March, 1984 at 4‑30 p.m. at Nisbat Road (house of the appellant) near Chowk Mayo Hospital, in which 3 kilograms Heroin was recovered at the pointing out of the co‑accused Muhammad Umar. Muhammad Mushtaq, D.S.P., P.W.5, sent a written report Exh. P.A. to the Police Station, on which Muhammad Ilyas, A.S.I., P.W.2 registered a formal F.I.R.

3. The allegations raised in the complaint were that Muhammad Umar who had been arrested in another case F.I.R. 84, dated 22nd March under Article 3/4 of the P.0.7 of 1979, disclosed that he had kept 3 kilograms Heroin in a locked suitcase in the house of his companion the present appellant Sher Muhammad at 63, Nisbat Road and that he can point out the same for being recovered. Consequently, a raiding party headed by Sh. Khalilul Hassan, S.P. Crimes Branch, Punjab and consisting of 4 named D.S.Ps, one Excise Inspector, 2 Sub‑Inspectors, 2 Assistant Sub‑Inspectors, one F.I.O., 5 Constables and 2 Drivers were organised. All of them alongwith Muhammad Umar went to the house of the appellant who got recovered a grey suitcase from behind quilts near the fire place. It was opened with the key supplied by Muhammad Umar and 3 packets of 1 kilogram each were recovered from it. The samples of the recovered material were sent to the Chemical Examiner, who reported vide Exh.P.D. that the same was Heroin.

4. The prosecution examined 5 witnesses in support of its case. Habib Hussain, foot constable, P.W.1 had taken the samples of the recovered material to the Chemical Examiner for analysis. Muhammad Ilyas, A.S.I., P.W.2 stated that he registered the first information report on the complaint sent by Muhammad Mushtaq, D.S.P., P.W. 5. Muhammad Akram Ranjha, F.I.O., P.W.3 is the recovery witness. He had also participated in the raid. Muhammad Sadiq, Excise Inspector, P.W.4 was also present at the time of raid and supported the prosecution version. He is also the recovery witness.

5. Muhammad Mushtaq Khan, D.S.P., P.W.5 stated that on the 22nd of March, 1984 they, on the information of Muhammad Umar co‑accused reached the house of the appellant and recovered 3 kilograms of Heroin from attache‑case A‑1. The key of the suitcase had already been taken into possession from Muhammad Umar co‑accused. He took the three samples and made them into a parcel vide memo. Exh.P.B. The parcels were sent to the Chemical Examiner who gave his report Exh.P.D in the positive. In his cross‑examination he stated that Umar co‑accused was apprehended from Tollinton Market and taken to the Crimes branch and then taken to the house of Sher Muhammad. The raiding party consisted of 12/13 persons. The witness did not know that they had taken one vehicle or more. He also did not remember if the vehicle was jeep or any other type. The number of the vehicle was also not known to him. He also did not know whether the vehicle used was open or close. He also did not know if there were other houses in the street or not or whether this house was on the road.

6. It is to be noted that no statement on the record connects the appellant with the offence. It is stated by Muhammad Mushtaq Khan, P.W.5 as well as Muhammad Akram Ranjha, P.W.3 that the suitcase, in question, was recovered on the pointing out of Muhammad Umar. Even the key was with him. Sher Muhammad was not present at the spot and A so the recovery was made in his absence. There is no other evidence on the record even to suggest that Sher Muhammad knew about the contents of the suitcase or even the presence of the suitcase in his house. This appears to be a very strange case in which such a high powered raiding party was organized but no case is made out against Sher Muhammad at all. Rather, the very facts stated show that even his challan was baseless if the only evidence against him is the one brought on the record. The conduct of Muhammad Mushtaq Khan, D.S.P., is also not understandable. He knew nothing about the case though he was not only a member of the raiding party but also the Investigating Officer. This is an alarming situation and the Government must be very much concerned with it in order to seriously combat this ever growing menace or in the alternative to protect and preserve the rights of the people.

7. The same evidence which is given above had been used against Muhammad Umar appellant. The only thing stated against him is that the recovery was made at his pointing out. There is no evidence of his arrest or the recovery of the key from him. Not a single witness C stated that Muhammad Umar stated before him that he kept a suitcase with 3 kilograms Heroin in the house of Sher Muhammad. No witness produced deposed that Muhammad Umar produced or gave the key of the suitcase to so and so in his presence. It is not known who was the recipient or the carrier of the key.

8. In any case, the evidence on the record does not inspire any confidence whatever. The raid in question is said to have been conducted in a busy place like Nisbet Road at 4‑30 p.m. According to the F.I.R. the raiding party consisted of one S.P., Crimes Branch, four D.S.Ps., one Excise Inspector, one S.I., two A.S.Is. , one F.I.O. and five Constables, two Drivers and two other employees. None of the public witnesses has however, been joined in the recovery or the investigation. The S.P. who is said to have headed the raiding party have not been produced. Muhammad Mushtaq, D.S.P., P.W.5 who was a member of the raiding party and had investigated the case also knew nothing about the facts, the place of recovery or the type or the number of the vehicles used.

9. I am, therefore, clear that this is either totally a false case or the prosecution had purposefully failed to perform the duty imposed on it by law, resulting in miscarriage of justice. In any event, the Government might be interested to know more about it. The result is that both the appeals succeed and so the conviction and sentences of the two appellants are set aside. The appellant Sher Muhammad is on bail. His bail bonds shall stand discharged. The other appellant Muhammad Umar shall be set at liberty unless wanted in any other case.

S.A. Appeal accepted.

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