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Criminal Appeal No.116-K of 1986, decided on 2nd July, 1987.

---Art.4--Possession of contraband--Description of packing of material as recovered and mentioned in 'mashirnama' differing with description given by witnesses, Chemical Examiner and with the one opened in Court--Contradiction existing in statements of prosecution witnesses qua apprehension of accused and case of prosecution becoming high doubtful--Conviction and sentence set aside in circumstances.

Sardar Muhammad Ishaque for Appellant.

Syed Sarfraz Ahmad Asstt. A.-G. for the State.

Date of hearing: 2nd July, 1987.

Appellant Nagat Ram has challenged through this appeal the order dated the 28th of November, 1986, passed by the learned Sessions Judge, Karachi, South, convicting him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. By that order the appellant was sentenced to five years' R.I with whipping numbering ten stripes and a fine of Rs.5,000 (five ,w thousand) . In default of payment of fine he was to suffer six months' R.I., further.

2. The occurrence took place on the 24th of June, 1986 at 9.30 a.m., at Miran Naka Lyari near Fire Brigade Karachi. Ghulam Hussain Baloch, Excise Sub-Inspector, under the supervision of Muhammad Hafeez Rajput, Excise Inspector and with Mansoor Ahmad, Abdul Khaliq Shah, Tufail Ahmad Shah and other Excise Staff raided the above place in the presence of 'mashirs' Ghulam Abbas and Muhammad Anwar. There, they found Jagat Ram appellant standing in a suspicious condition. He was holding in his right hand a white cloth bag, He was stopped under the order of Muhammad Hafeez, Excise Inspector and after necessary introduction, the cloth bag was taken into possession. On opening, it was found to contain another white cloth bag in it. The said bag contained Heroin powder weighing One kilogram.

On his personal search a photo copy of his Identity Card was recovered from his right hand side pocket, alongwith currency notes of 60 rupees. Jagat Ram was arrested at the spot and 'mashirnama' prepared in, the presence of, the witnesses .and read over to them.

3. The prosecution examined two witnesses. Ghulam Abbas P.W.1 is the 'mashir' while Ghulam Hussain P.W.2 Excise Sub-Inspector, had made the complaint and was a member of a raiding party.

4. The appellant in his statement under section 342 Cr.P.C., denied the allegation against him and in answer to a question, "do you want to say anything" made a detailed statement. He also appeared as his own witness and stated on oath as under:----

"I came to Karachi about. 45 days prior to this incident, in which I had been involved. I stayed with Pandrol in Bilal Colony, Landhi area. I came to Karachi for going to Dubai. I had already with me an International Passport and my Identity Card. I had brought in all 62,000,rupees from Swat out of which I -had to send to my brother in Swat tea and water coolers of various qualities for my shop in Swat. The remaining amount of Rs.22,000 was for my expenses towards Dubai. I had not spent the amount of Rs.40,000 or any other amount except Rs.2,000 which I had kept separately for daily expenses and personal use. This incident of my arrest took place on 23-6-1986 at about 9.30 p.m. when I was sitting in the quarter of Pandrol who was also present. Some person knocked at the door which I opened. Few persons in plain clothes including a lady searcher entered the quarter and after disclosing their identity they asked us about Hazrat Shaikh and others to which I and Pandrol showed our ignorance because we did not know any person of that name. The Police Officer then told us that they had spy information about some dealings in intoxicants. They started taking search of the quarter but found nothing. The police officer then asked me to open my brief-case. I was forced to open it which contained Rs.60,000 Pakistani currency, Passport and my N.I.C. I explained to the officer that I was a guest and also told purpose of my visit He did not listen to me and took my brief-case with cash and also took away myself and Pandrol to his office. In the office at about 2.00 or 2.30 in the night I found a Sindhi and his wife also sitting there. The police party then had a dealing of some illegal gratification for the release of that lady and went with her for the money. Thereafter, the lady was released but her husband Allah Dino was involved in a case of Charas of 6 kilos. The Inspector then told me that I should forget about the cash which was in the brief-case and threatened me that I will have now to go to jail for 10 years. I was not arrested 'from Lea Market area as stated falsely by the witnesses and the Excise Officer. I produce a photostat of Press cutting showing the arrest of Allah Dino as Ex.14 in which the arrest of Allah Dino one Pathan and Pandrol is also mentioned. Pandrol is the same person who was taken by the police party with me to the police station. I have two relatives of mine-in Dubai."

5. He also produced 4 other witnesses in defence apart from himself. D. W.2 Pandol Khan stated that Jagat Ram was living not with him but with another person whose name he did not know. He further stated that Jagat Ram was brought to the Police Station and falsely involved in the case. Muhammad Rauf D.W.3 stated that Jagat Ram was living with Pandrol and Muhammad Khan and that the Police party had rounded up Jagat Ram and Pandrol Khan and had taken a brief-case with them. Jamal Khan D.W.4 and Sanaullah Khan D.W.5 supported the D.W.3.

6. This case was taken up previously on 24th of March, 1987. It was argued by the learned counsel for the appellant that the result of the Chemical Examiner was not valid and that fresh samples be sent for re-verification of the material. The reason given was that the description as given by the witnesses differed with that of the Chemical Examiner. We, therefore, required of the prosecution to send another sample to the Chemical Examiner as the previous result was doubtful. At that Ghulam Hussain, complainant appeared to state that the case property has been destroyed vide order of 31st of December, 1986 of the Minister for Excise and Taxation and that the order of the Court cannot be complied with. It may be noted that though prosecution is not required to destroy case property till the finalization of the litigation yet in the case there is a specific order that the heroin powder shall be destroyed only after the period of appeal is over. The time provided for appeal is sixty days whereas the, material was destroyed in this case on 8th of January, 1987.

7. In view of the above situation we called upon the Director General Excise, Sind, to inquire into the matter, fix the responsibility of this illegal action and refer the names of the responsible persons to us. The 1st report submitted by the Director-General, Excise and Taxation had with it an explanation of Mr.Ghulam Hussain who stated that he thought that the period of appeal was 30 days and after lapse of that time he recommended the destruction of the case property. In his later report the Director-General stated that on the receipt of the information about the properties which were required to be destroyed, the Director (Legal and Inspection) held meetings with the Directors and the Excise and Taxation Officer concerned who verified that the information supplied was correct. The report further says that the said Ghulam Hussain, who was the Investigating Officer, never pointed out that any appeal was pending in any of the cases. The Director-General, added in his own hand, in the typed report that "He (Ghulam Hussain) added the case of Jagat Ram to the list later on".

8. It appears from the above that Ghulam Hussain Baloch complainant did not point out that the appeal had been filed by Jagat Ram. The Director-General further stated that in this destruction order which comprised 139 case properties only one I.O., i.e., Ghulam Hussain Baloch has failed to indicate the correct information in two cases (including the present one) in which appeals were pending in the Federal Shariat Court. He has added that the Investigating Officer is the only person who can supply the abovesaid information and the Department has to rely on him. In this view of the matter the Director- General has placed Mr.Ghulam Hussain 'Baloch under suspension for concealment of facts, gross negligence of duty and misconduct.

9. In this view of the situation the Court is obliged to consider the material on record and decide the case on merit. We have, therefore, gone through the statements of the two prosecution witnesses. Ghulam Abbas P.W.1, Mashir stated that white bag found in the hand of the appellant was opened and it contained inside it another bag containing Heroin powder in a plastic bag. In his cross-examination he was referred to the 'mashirnama' where plastic bag is not mentioned. Ghulam Hussain P.W.2 had stated that the white bag contained another white bag in which there was a plastic bag containing Heroin. In his cross-examination he was also confronted with the 'mashirnama' wherein he had not mentioned the plastic bag. The Chemical Examiner's Report also shows that parcel contained white cloth bag which contained one brown paper 'thaili' in a plastic cover. The bag was also opened in the trial Court and shown to Ghulam Abbas P.W. it contained two white bags and a plastic cover containing Heroin powder.

10. It will thus be seen that the description of the packing of the material as recovered and mentioned in the 'mashirnama' differs with the description given by the witnesses, the Chemical Examiner and the one opened in the Court. It may further be seen that according to Ghulam Abbas P.W.1 he and the other 'mashir' were picked up in a Pick Up and taken some distance before they apprehended the appellant at the Fire Brigade. Ghulam Hussain P.W.2, on the other hand, stated that he picked up the two mashirs on reaching the Fire Brigade and apprehended the appellant after walking 100/150 paces. The plea taken by the appellant in 340(2) was also suggested to Ghulam Hussain in his cross-examination. The case of the prosecution thus becomes highly doubtful and may be the version given by the appellant in his statement under section 342 Cr.P. C. , is correct.

11. In this view of the matter, we allow the appeal, set aside the conviction and the sentences and acquit the appellant of the charge against him. We further direct that he shall be released forthwith unless he is wanted in any other case.

12. Before parting with the case we, in pursuance of our power under Article 203, DD of the Constitution, direct that the statement of the appellant shall be treated as a complaint and a case under the relevant provisions of the law shall be registered against Ghulam Hussain Baloch P.W.2. It shall then be investigated and dealt with in accordance with law.

13. We further find that as according to the report of the Director General, Ghulam Hussain Baloch P.W.2, prima facie interfered with the course of justice in either withholding the information that an appeal had been filed or in surreptitiously interpolating the particulars of the present case in the list of case properties meant for destruction. He shall be asked to show cause as to why he should not be punished under .the law of Contempt of Court.

M.Y.H./359/F.Sh Appeal allowed.

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