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Criminal Appeal No. 87/K of 1986, decided on 22nd December1981 .

---Art.4--Criminal Procedure Code (V of 1898), Ss.410 R 423(1)(b)---Accused charged with. and convicted of offence under Art. 4 of Order 4 of 1979 on evidence of complainant (Excise Inspector) and two witnesses S & Q--Appeal against conviction--Appellant producing photo copies of two F.I. Rs. which showed the same Excise Inspector and Q as witnesses--Appellant stated that photostat of the two F.I. Rs. were procured after the impugned decision and hence prayed that case be remanded and defence allowed opportunity to confront witnesses with documents procured--On no objection by State, Federal Shariat Court accepted the prayer and remanded case to Trial Court for decision, afresh after allowing defence to confront witnesses with said documents.

Criminal Appeal No.36/K of 1986 (unreported) ref.

Khawaja Naveed Ahmad for Appellant.

Akhlaq Ahmad Siddiqi for the State.

Date of hearing: 22nd December, 1986.

This is an appeal from the judgment of IIIrd Additional Session; Judge, Karachi, dated 10-8-1986, whereby the appellant has beer convicted of offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) for having been found in possession of 250 grams of heroin and sentence( to suffer R.I. for five years, ten stripes and to pay a fine of Rs. 2,000 or in default of payment of fine to further undergo R.I. for six months.

2. The allegation against him was that Excise Inspector Shaukat Bukhari held the appellant near Masjid-e-Mustafa Singo Lane, Karachi on 28-11-1985 in presence of Abdul Qadir (P.W.1) and Shahid (not examined) and secured five purris of heroin each containing 50 grams each. Such mashirnama was prepared and F.I.R was lodged on the same day. The recovered heroin was sent to the Chemical Examiner whose report is positive. After completing investigation the appellant was sent up for trial.

3. In support of the prosecution case there is evidence of P. W." Shaukat Bukhari complainant and mashir P.W.i Abdul Qadir. In cross-examination both these 'witnesses were asked whether Abdul Qadir had been a witness in any other case of this complainant. Both the witnesses replied in the negative.

4. Khawaja Naveed Ahmad, learned counsel for the appellant hill produced photostat copies of two F.I.Rs in which Shaukat Bukhari t complainant and Abdul Qadir has been shown as a witness of recovery."

He has stated that these copies were procured after the decision of this case and therefore, he should be allowed an opportunity to confront the witnesses with these documents. He has also cited an unreported decision in Criminal Appeal No. 36/K of 1986, in which the case was remanded on similar ground i.e. for confronting the witnesses with the documents to challenge their credibility. The learned counsel for the State has no objection if the case is remanded for the above purpose. The learned counsel for the appellant has produced photostat copies of the two F.I.Rs. which may be kept on the record.

5. The case is remanded to the trial Court for the purpose of recalling the two witnesses namely Shaukat Bukhari, Excise Inspector and Abdul Qadir (P.W.1) to enable the defence counsel to confront the witnesses with these documents and then decide the case afresh. The trial Court shall also be at liberty to call the other mashir Shahid, who has been given up by the prosecution and examine him A as Court witness.

6. Consequently the conviction and sentences are set aside an the case is remanded to the trial Court to decide it afresh in the light of the above observations. The appellant is in custody and he shall continue to be in custody pending the decision of the trial Court, subject to the discretion of the learned trial Judge under section 497, Cr. P. C., which he shall exercise on merits, if moved in this behalf.

K.B.A/351/Sh.F. Retrial ordered.

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