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Criminal Appeal No. 50/I of 1986, decided on 29th April, 1986.

‑‑‑Art.4‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Attesting witness of alleged recovery of Heroin, a resident of different locality and happened to see occurrence by chance‑‑Many persons of locality reaching spot yet none made a recovery witness‑‑Prosecution evidence also contradictory on material points‑‑Accused given benefit‑of doubt and acquitted, in circumstances.‑‑[Recovery].

Malik Rab Nawaz Noon for Appellant.

Muhammad Aslam Uns for the State.

Date of hearing: 29th April, 1986.

.‑‑This is an appeal against the Order, dated 6‑2‑1986 passed by Sessions Judge, Rawalpindi, whereby the appellant Muhammad Munir Khan son of Ghafoor Khan, resident of Muslim Town, Sadiqabad, Rawalpindi has been found guilty of offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to undergo three years' rigorous imprisonment with whipping numbering five stripes. He has also been fined Rs.1,000 or to suffer further R.I. for two months in default of payment of fine.

2. The prosecution case was that on 17‑4‑1985 Muhammad Fazal, H.C. was on patrol duty at Charah Chowk Sadiqabad, Rawalpindi alongwith other police constables. He received an information that Munir Khan accused was selling Heroin at Band Khana Road, Rawalpindi. Abdul Munir, a passerby, was required to accompany the police party in order to conduct a raid. When the party reached the spot the accused was found there and was captured. He was found holding Heroin in a 'Khakhi Lafafa' in his hand. The article recovered was weighed and found 100 grams, out of which ten grams was separated and made a sample and sealed. The remaining article recovered was separately sealed. The recovery memos. were prepared and got attested by Abdul Munir (P.W. 4) and the Constable Abdul Aziz (P.W. 5). A sum of Rs.700 was also found on the person of the accused and the same was also taken into possession. The formal complaint was sent to the police station where it was registered by Muhammad Nawaz (P.W. 1). The sealed parcels were kept in Malkhana by Bunyad Ali Shah (P.W. 3). The sample was sent to the Chemical Examiner through Haq Dad F. C. , (P. W. 2) and on the receipt of the Chemical Examiner's report Exh. P.E. which was in the positive, the accused was challaned in Court. .

3. The prosecution produced six witnesses at the trial whose names have been given above. P.Ws. Muhammad Nawaz, Haq Dad and Buniyad Ali Shah are only formal, witnesses.

4. P. W. 6 Muhammad Fazal who is the main prosecution witness and had arranged the raid repeated the allegation, he had mentioned in the complaint but admitted in the cross‑examination that the witness Abdul Munir (P.W. 4) had not disclosed that he was a resident of Amarpura and asked to accompany the police party as he was known to Abdul Aziz H.C. (P.W. 5) and the latter had asked him to accompany them the place where the information abut the accused was disclosed to this witness (P.W. 6) was in a thickly populated area and the place of recovery too was situated in a populated area and during the 45 minutes when the police remained on the spot people of the Mohallah had arrived but none of them was associated with the search. On a suggestion put to him the witness said that "It would be wrong to say that Munir P.W. 4 was present in the Gali where the raid was conducted. The accused was captured on the pointing out of the informer‑‑a fact which was contradicted by Abdul Aziz (P.W. 5). P.W. 5 Abdul Aziz H.C. in his deposition before the trial Court stated that while the police was in Chowk Charah Sadiqabad, Rawalpindi the informer had told that a person was selling Heroin in Khuram Colony. A taxi was hired for the raid. In the meantime Abdul Munir P.W. also arrived there; he was asked to accompany and then all reached Khuram Colony. The witness further stated that the "informer did not accompany us to the spot". The accused was present in the Gali, outside his house, at the time of the raid. The Gali was running east‑west. It was a very long lane. The police officials were in uniform. They had been sent by Raja Ali Asghar Inspector for patrol duty. The witness admitted that many people had collected there. "We asked these persons to witness the recovery from the accused but they refused to do so saying that they are poor people and they do not want to involve themselves. I cannot tell the names of these persons". (As has been pointed out above the main witness (P.W. 6) did not make any such effort and none of the persons collected on the spot were associated with the search). A person not named by the informer and the informer having not accompanied the raiding party to the spot speaks for itself. We have not been able to understand how in such circumstances a person found in a long Gali can be singled out as the accused and only he was searched when there was none to identify him.

5. P.W. 4 Abdul Munir, attesting witness of the recovery claims to be resident of Khuram Colony while he held an identity card wherein he has been shown as Mirza Dil Munir and resident of House no. 1409, Gali No. 66, Amarpura, Rawalpindi. He admits that the place of recovery is at a distance of about two miles from Amarpura. This witness said that he was working for the last 15/20 days in the house of one Khalid but did not know the number of house and Gali and happened to see the occurrence by chance and did not know the accused before the day of occurrence. This witness did not say that he had accompanied the police party on any taxi employed by the police for this purpose. The police party remained on the spot for about 45 minutes. Many other persons of the locality arrived there during that period. The police party did not ask any else to become a witness in this case. The Investigating Officer had sent Muhammad Khan F.C. for summoning some persons of the locality but nobody was prepared to come there. (Muhammad Khan has been examined in this case). Thus on this point contradicted P.W. 6. Why the police had chosen a labour (P.W. 4) ignoring the persons of the locality is significant.

6. In the circumstances of the case the conduct of the police party does not inspire our confidence. The consensus of opinion of the superior Courts appears to be that a Court should be on guard when witnesses to the search do not come from the locality.

7. The accused‑appellant in his statement under section 342, Cr.P.C. and on oath under section 340, Cr. P. C . has not only denied the allegations of recovery of Heroin from him but has been asserting that one Police Inspector namely Asghar used to live in the same colony and the accused has been transporting his children for some six months prior to the occurrence. Subsequently he had refused to do so free of charge while he had been doing previously. Thus, Police Inspector had turned inimical against him and this was the reason for his implication in this case. The appellant further said that he was carrying with him Rs.1,800 on his person at that time but the police party had dishonestly described the sum being Rs.700 only. It is significant that Police Inspector Asghar is the same about whom the P.W. 5 (Abdul Aziz) has admitted that "we had been sent by Raja Ali Asghar Inspector for patrol duty".

8. The defence witness Muhammad Hussain, a resident of the same locality corroborated the accused that he has been driving a taxi in the past and has been transporting the children of police officer before the occurrence free of charge subsequently he had refused, thus he had been falsely involved in this case.

9. We have attended to all the aspects of the case. The deliberate concealment of facts by the so‑called independent witness (P.W. 4) and the contradictions on material point by the other prosecution witnesses as pointed out above persuade us to hold that the prosecution version in this case is not free from doubt and as such it would not be safe to maintain the conviction. Giving the benefit of doubt to .the accused we acquit him of the charge. The appeal is accordingly allowed. The appellant shall be released forthwith if not required in any other case.

S.G.D./315/F Appeal allowed.

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