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Criminal Appeal No. 356/1, of 1986, decided on 18th February, 1987.

‑‑‑Art. 4‑‑Ocular evidence, appreciation of‑‑Fifteen grams of Heroin allegedly recovered from accused in raid conducted on his shop‑‑Public witness a Police Razakar contradicting Investigating Officer on material points‑‑Case property not weighed in his presence‑‑Witness not knowing contents of packets‑‑Packets not even opened in his presence‑‑ Memo. of recovery signed by him at police station‑‑Witness admitting to be stock witness‑‑Police constable, witness of recovery, also contradicting Investigating Officer as to presence of weights and scale with him‑‑Case property not produced in Court nor identified by witnesses‑‑Prosecution had failed to bring home offence to accused beyond reasonable doubt and trial was vitiated for non‑production of case property‑‑Accused acquitted in circumstances.

‑‑S. 342‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 4‑ Examination of accused‑‑Alleged recovery of Heroin from accused‑ Heroin not produced in Court‑‑Question as to recovered article to be Heroin, put to accused under S. 342, Cr.P.C.‑‑Question not borne out from prosecution evidence‑‑Answer to such question, even if amounting to confession, held, could not be taken into consideration and non production o a e property would be fatal to prosecution.

Abdul Khalique v. The State 1985 P Cr. L J 2580 ref.

M.A. Zafar for Appellant.

Z.K. Chaudhry for the State.

‑ This is an appeal from the judgment of Additional Sessions Judge, Gujranwala at Wazirabad, dated 6‑12‑1986, whereby the appellant was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, (hereinafter referred to as the said Order) for having been found in possession of 15 grams of Heroin and sentenced to suffer R.I. for five years, ten stripes and to pay fine of Rs. 2,000 or in default of payment of fine to further undergo R.I. for one year.

2. On 11‑3‑1986 at about 10‑15 p.m. Muhammad Younis, A.S.I.; City Police Station, Wazirabad was on patrol duty al6ngwith F.C. Muhammad Ashraf, F.C. Ghulam Abbas and others. They also picked up one Karamatullah from the public. They received spy information that appellant Muhammad Asif, who was electrician was selling Heroin at his shop at G.T. Road, Wazirabad. Muhammad Younis raided the shop of the appellant and searched his person. It is alleged that 15 grams of Heroin was secured from him. Five grams was separated for the purpose of sample to be sent to the Chemical Examiner in a sealed parcel. The remaining quantity of ten grams was made into another parcel. Muhammad. Younis prepared a complaint (Exh. P.A.) and sent it to the police station for registration of the case. The appellant was arrested and after usual investigation the case was sent up for trial.

3. In support of the prosecution case following witnesses have been examined.

P.W. 1 Muhammad Younis, A.S.I., is complainant. He has proved the complaint (Exh. P.A.) and the recovery memo. (Exh. P:B.) under which 15 grams of Heroin is alleged to have been recovered. He also produced site plan (Exh. P.C.). In cross‑examination, he stated. that the scale and weights with which the Heroin was weighed were already with him.

4 P.W. 2 Karamatullah, who is a public witness, has contradicted Muhammad Younis on many points. He stated that the case property was not weighed in his presence although the person of the appellant was searched. Two packets were recovered but he did not know about the contents of the packets. The complainant Muhammad Younis had told him that the packets contained Heroin, but the same was‑ not weighed in his presence. He further stated in cross‑examination that the packets were not even opened in his presence and he simply signed the recovery memo. at the police station. He also contradicts the complainant (P.W.1) about the scale and measures being with him and deposed that the complainant had no scale or weights with him on the spot. This witness also made an admission about his being a stock witness of the police. He says: I am a Police Razakar and I have appeared as P.W. in many cases'. In spite of being Police Razakar he has contradicted complainant Muhammad Younis on material points.

5. The other recovery witness is P.W. 4 Muhammad Ashraf. He has given the same evidence as Mr. Muhammad Younis, but there is an important inconsistency about the weights and measures, which according to Muhammad Younis (P.W.1) were already with‑ him, but P.W. 4 Muhammad Ashraf has stated that the weights and scales were not with the I.O., but the same were sent for from the police station.

6. In view of the above contradictions on material points, the case has become doubtful against the appellant. Another important omission, which in our view vitiated the trial, is non‑production of case property in the Court. None of the witnesses identified the ten grams of the remaining Heroin, which was made into a sealed parcel after sending sample. of five grams to the Chemical Examiner. This parcel was not shown to any of the witnesses nor there is any mention in the entire evidence of all the four witnesses that the property i.e. the parcel of ten grams was shown to them in Court. Even the judgment of the learned trial Court shows that no order for disposal of the case property has been passed. Had the property been produced in the Court, then it was mandatory for the trial Court to have passed some order about disposal/destruction‑of the alleged Heroin.

7. Reference has been made to the statement of the appellant under section 342, Cr.P.C., in which question No. 4 was put to him as under:‑

"It is in .the prosecution evidence that Heroin Exh. P.1 has been found Heroin in the report of the Chemical Examiner "

The answer of the appellant was I cannot say anything about it'

8. It may be stated that the word 'Heroin Exh.P.1' contains some overwriting. The mark of the case property was first written as Exh.P.B. The letter 'B' was afterward cut with hand and made into 1'. It has been contended by Mr. M.A. Zafar, learned counsel for the appellant, that this question was not borne out from the prosecution evidence and as such it could not have been put to the appellant under section 342, Cr.P.C. Reference has also been made to the case of Abdul Khalique v. The State 1985 P Cr. L J 2580 in which it has been held by a learned Single Judge of the Lahore High Court that if a question which does not arse from the prosecution evidence, is put to the accused in his statement under section 342, Cr.P.C. then the reply of the accused even it amounts to confession, cannot be taken into consideration. We are in respectful agreement with the view taken in the above case. Property (P.1) was not produced at any stage of the trial nor it was shown to any of the witnesses. It is well- established law by now that non‑production of case property, which is basis of the conviction, will be fatal to the prosecution.

9. It is also established that the appellant was running an electric shop in Wazirabad. All the main witnesses including complainant are residents of Wazirabad and posted at Police Station City, Wazirabad within whose jurisdiction the appellant is carrying on work as electrician. He has pleaded in his statement under section 342, Cr.P.C. that the police officers of the above police station often used to call him to render them free electric service and that on his refusal to oblige the police officers he has been implicated in this false case. Looking to the general practice prevalent in the police stations, the defence plea does not appear to be improbable

10. In view of the above infirmities 'in the prosecution evidence we hold that charge of offence under Article 4 of the said Order has not been brought home to the appellant beyond any reasonable doubt. Consequently we allow his appeal, set aside the conviction and sentences of the appellant and direct that he shall be released forthwith if not required in any other case.

S.A./322/F.Sh.C. Appeal allowed.

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