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Criminal Petition No.57‑R(S) of 1985, decided on 16th September, 1985.
(From the judgment of the Federal Shariat Court, Islamabad, dated 29‑4‑1985 in Criminal Appeal No. 27/P of 1984).
‑‑Art. 203‑F‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3‑‑Leave to appeal‑‑Accused while travelling in a bus was found to be in possession of Charas‑‑Police official who searched accused was solitary witness‑‑No other witness of search produced‑‑Held, there was no law that deposition of one witness should not be believed or accepted nor it was in contravention of any principle of law‑‑Concurrent findings of fact by two Courts below particularly when recovery witness had no animus against accused, ordinarily were not interfered by Supreme Court in its jurisdiction to entertain appeal through petition for leave to appeal‑‑Leave refused.
‑‑‑S. 103‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4‑‑Recovery‑‑Testimony of police official as solitary witness, held, could not be disbelieved merely because of his being a police official‑ Application of S. 103, Cr.P.C.‑‑Extent.‑‑[Recovery].
Muhammad Shah etc. v. The State P L D 1984 S C 278 and Muhammad and others v. The State P L D 1981 S C 635 applied.
Abdur Rehman Khan, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record (absent) for Petitioner.
Bashirullah Khan, Asstt. A.‑G., N.‑W.F.P. for the State.
Date of hearing: 16th September, 1985.
‑Leave to appeal has been sought from judgment, dated 29‑4‑1985; whereby, the Federal Shariat Court while dismissing the petitioner's appeal upheld his conviction under Article 3 of the Prohibition (Enforcement of Hadd) Order (No.4) of 1979, and maintained the sentence of rigorous imprisonment for 3 years and 10 stripes but reduced the sentence of fine from Rs.30,000 to 10,000.
The petitioner was caught red‑handed by Shahji Gul Constable who made a search in the bus in which the passenger was travelling. He was carrying contraband Charas weighing 2,000 grams in a packet.
The main evidence against the petitioner was in the deposition of Shahji Gul Constable who it is admitted by the learned counsel had no reason to falsely implicate the petitioner, the latter's plea, however, was of denial and false implication.
Learned counsel contended that the solitary statement of one recovery witness should not have been believed; and further that search made in the bus and of the petitioner by the said Constable was in contravention of section 103 of the Criminal Procedure Code as no other witness was associated.
The first question raised by the learned counsel related to the weight and appreciation of evidence. There is no law that deposition of one witness should not be believed and accepted nor it was in contravention of any principle. In any case the concurrent findings o: fact by the learned two Courts below particularly when the recovery witness has no animus against the petitioner, ordinarily are not interfered with by this Court in its jurisdiction to entertain an appeal through leave to appeal.
The second argument of the learned counsel has no basis because a search was made by the Foot Constable on his own initiative, section 103 would not be attracted. And even if it would have been attracted the law in that behalf stands already declared in Muhammad Shah etc. v. The State P L D 1984 S C 278 and Muhammad and others v. The State P L D 1981 S C 635 which are of no assistance to the petitioner. This petition fails, accordingly leave to appeal is refused.
M . B . A . Petition dismissed
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