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Criminal Appeal No. 156/L of 1986, decided on 25th November, 1986.

‑‑‑Art. 4‑‑Evidence‑‑Accused charged simultaneously in case under Arms Ordinance and possession of heroin‑‑Heroin allegedly recovered from accused during investigation of case under Arms Ordinance‑‑Accused charged in case under Arms Ordinance for licensed gun of his employer but acquitted‑‑Evidence of‑ recovery of heroin from accused found, doubtful‑‑Accused, held, was falsely involved and acquitted in circumstances.

Muhammad Akbar Cheema for Appellant.

Azmat Dad for the State.

Date of hearing: 25th November, 1986.

Muhammad Rafiq son of Sain, was tried for possession of twelve grams of Heroin. The Additional Sessions Judge, Gujrat, on 12‑5‑1986, convicted him under article 4 of .the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to undergo R.I. for thirty months, to whipping numbering ten stripes and to pay fine of Rs.2,000 or in default of its payment to further undergo S.I. for six months. The convict has filed this appeal against his conviction and sentence.

2. Mushtaq Ahmad, A.S.I. of Police Post Shahdolah Gate, Gujrat, was present with police foot constables in street Khooi Walt, Shahdolah Gate, on 30‑12‑1985 at 9‑30 p.m. in connection with investigation of a case under the Arms Ordinance. The appellant appeared before him in case under the Arms Ordinance. The person of appellant was searched on which twelve grams of Heroin was recovered from the front pocket of the shirt which the appellant was wearing. Two grams of Heroin out of it was sealed into parcel for chemical analysis. The appellant was apprehended and written report was signed on which formal F.I.R. was registered at Police Station City, Gujrat on the same day at 11‑15 p.m. After investigation, appellant was challaned in Court.

3. At the trial, prosecution examined five witnesses in all. Mushtaq Ahmed P.W.2, A.S.I., narrated the facts mentioned in the F.I.R. He deposed that he was investigating case against appellant under the Arms Ordinance when the witness conducted his personal search and recovered twelve grams of Heroin from the pocket of his shirt. He got the F.I.R. registered and arrested the appellant, who was challaned in Court. In cross‑examination, the witness stated that the case under Arms Ordinance against the appellant was of a licenced gun of his employer, a Syed of Mohi‑ud‑Din Pur. Muhammad Ilyas P.W.3, Foot Constable, deposed that he was with Mushtaq Ahmad P.W., when the appellant was found present in the area of Shahdolah Gate and on his personal search twelve grams of Heroin was recovered and secured. He also deposed that he took sealed parcel of Heroin from the Moharrir Head Constable and delivered it in the Office of the Chemical Examiner at Lahore. In cross‑examination, he deposed that the appellant was seen going in the street with a gun which was taken from him by the A.S.I. and thereafter, the person of appellant was searched. Muhammad Walayat P.W.4, a Moharrir Head Constable, deposed that he kept the sealed parcels in Malkhana. Tallat Mahmood P.W.1, A.S.I., deposed that he formally registered the F.I.R. at Police Station. Sajjad Akhtar P.W.5 Head Constable deposed that he was present on patrol duty at Shahdolah Gate, Gujrat with P.W. Mushtaq Ahmad, A.S.I. when appellant was arrested under the Arms Ordinance and on his personal search twelve grams of Heroin was secured. In cross‑examination, he admitted it correct that appellant was a Tonga driver of some Syed.

4. The appellant denied the charges. He stated that he was employed as a Tonga driver by Kakay Shah but left his service and was implicated in this case at his instance. He appeared as his own witness and deposed the same facts. He also deposed that he was given beating and was turned out of service when he asked for payment of his salary upon which Kakay Shah implicated him in this case.

5. We have been taken through the evidence in this case. Learned counsel for the appellant has submitted that case against the appellant was cooked up at the instance of Kakay Shah. Mushtaq Ahmad, P.W. was in the street when he came across the appellant. The evidence on record shows that simultaneously the appellant became accused under the Arms Ordinance as well as in this case of Heroin. The case under Arms Ordinance was found of a licenced gun of his employer and appellant was acquitted of that charge. Mushtaq Ahmad deposed that he was already investigating the case under the Arms Ordinance when he conducted personal search of the appellant and recovered Heroin. Muhammad Ilyas deposed that appellant was present in the area of Shahdolah Gate, Gujrat when on his personal search Heroin was recovered and secured. Sajjad Akhtar, Head Constable was also with Mushtaq Ahmad, A.S.I. when appellant was implicated under the Arms Ordinance and in this case of possession of Heroin. The defence plea that appellant was involved at the instance of his previous employer Kakay Shah who did not pay salary to the appellant is probable. The recovery of Heroin from the appellant is doubtful in the evidence and we arse of the view that appellant was falsely involved.

6. For the above reasons, this appeal is allowed, conviction and sentences of the appellant are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.

S. A Appeal accepted.

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