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Criminal Appeal No.35/ K of 1987, decided on 7th July, 1987.

---Art.4--Benefit of doubt--Heroin allegedly recovered from accused one of Mashir declared hostile--Other resident of 10 miles away for place of recovery- -Mashir though illiterate, Mashirnama yet purporting; to be signed by him--Defence version of enmity with police substantiated--Prosecution case, held, was not free from doubt- Acquittal ordered in circumstances-

Sardar Muhammad Ishaque for Appellant.

Rashid Tariq for the State.

Date of hearing: 7th July, 1987.

.--The appellant was convicted by IIIrd Additional Sessions Judge, Karachi South, by his judgment date, 6-6-1987 under Article 4 of Prohibition (Enforcement of Hadd) Order. 1979, and sentenced to suffer R.I. for three years, whipping numbering five stripes and to pay fine of RS.500 or in default of payment of fine to further R.I. for three months. The appellant has challenged his conviction and sentences by this appeal.

2. The charge against him was that he was found in possession of 12 grams of heroin on 23-8-1984 in Railway Colony Cantt. Karachi.

3. PW.3 Wasif Hussain Shah, ASI, Frere Police Station, was on patrol duty on the above date when he received spy information that a person named Qazi Saeed was roaming about in Railway Colony in suspicious condition. He proceeded towards the above locality alongwith mashirs Muhammad Anwar and Abdul Wahid and held the appellant. His person was searched and it is alleged that a cloth bundle was secured from him which contained 48 purris of heroin and five pawas of charas. The heroin powder was said to be 12 grams in weight. The above articles were sealed and memo (Exh.7) was prepared. An FIR was also recorded and the sealed parcels were sent to the Chemical Examiner for examination and report.

4. In support of the prosecution case three witnesses namely PW.1 Muhammad Anwar, PW.2 Abdul Wahid and PW.3 Wasif Hussain Shah were examined. PW.1 did not support the prosecution case, therefore, he was declared hostile. PWs Abdul Wahid and Wasif Hussain Shah have given prosecution story and supported it.

5. The appellant has alleged enmity with the Frere Police on the ground that he was involved in a case under section 420/406, PPC and that in spite of bail before arrest the police had arrested him. He further alleged that when the fact of bail before arrest was brought to the notice of the police, the heroin and the charas was foisted upon him to justify the arrest.

6. Out of the two mashirs Muhammad Anwar has already been declared hostile. So far as Abdul Wahid is concerned, his presence at the spot appears to be highly doubtful, because he is resident of Keamari, which is ten miles away from the scene of offence. Hs evidence is also made doubtful due to the fact that he is an illiterat person, according to his own admission, and still mashirnama (Ex.7) bears his signature. His identity card was also examined by the tria court on which he had affixed his thumb mark, which proves that h is unable to sign. We, therefore, hold that the evidence of Abdul Wahid cannot be relied upon.

7. So far as PW.3 Wasif Hussain Shah is concerned, it is proved by the defence evidence led by the appellant that he was in fact on bail before arrest in a case registered at Frere Police Station. DW.1 Ghulam Asghar has proved this fact. It is also alleged that 6hulam Asghar had arrested the appellant in spite of the bail before arrest and later on the appellant had been implicated in this case. There is substance in the defence plea supported by no other than the police officer concerned himself. The prosecution case is, therefore, not free from doubt. We allow this appeal, set aside conviction and sentences and acquit the appellant of the offence he has been charged with. He is on bail. His bail bonds are discharge.

S. A. /355/F.Sh. C. Appeal accepted.

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