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Suo Motu Case No. 2/L of 1987 and Criminal Appeal No. 205/L of 1986, decided on 4th March, 1987.

‑‑‑Art. 4‑‑Decision of the case resting on reliability or otherwise of prosecution evidence‑‑Place of occurrence though a thickly populated area but no witness from public was produced‑‑Material contradictions existed in statement of prosecution witnesses‑‑Statements of prosecution witnesses were not ringing true and were not confidence inspiring‑ Defence version, in view of facts on record, appearing to be more plausible‑‑Conviction, held, could only be based on evidence which was beyond shadow of doubt‑

‑‑‑Crime and punishment‑‑Principle that it is better to acquit guilty persons than to punish an innocent one is a guiding principle for safe administration of justice.

Mishkatul Masabih (Eng. Translation by Fazlul Karim) Vol. II, p. 544 by Law Publishing Company, Lahore ref.

Naveed Shahryar for Respondent (in Suo Motu Case No. 2/L of 1987).

Ali Ahmed Malik for Appellant (in Criminal Appeal No. 205/1, of 1986).

Syed Iftikhar Ali Shah for the State (in Criminal Appeal No. 205/1, of 1986).

Date of hearing: 4th March, 1987.

‑‑ This is an appeal filed on behalf of Ghulam Ali Shah son of Ghulam Nabi Shah resident of village Madina, District Gujrat against the order, dated 25‑6‑1986 passed by Mr. Muhammad Mansoor Ali Khan, Additional Sessions Judge, Gujrat, whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to five years' R.I. with five stripes and a fine of Rs.2,000 or in default of payment of fine to further undergo R.I. for two months.

The allegations against the appellant are that on 9‑2‑1985, 250 grams of heroin was recovered from the appellant while he was found in the area of Baba Pirwali Gali in village Madina within the Area of police station Saddar, Tehsil and District Gujrat.

2. The prosecution case is contained in the F.I.R. No. 91 lodged in Thana Saddar Gujrat on 9‑2‑1985 at 8‑45 p.m. by Abdul Matin S.I., C.I.A. Staff Gujrat, wherein it has been mentioned that one Tariq Mahmood son of Muhammad Sharif caste Awan resident of Mohallah Nakapura Sialkot was involved in a case under Article 3/4 of the said Order and during the investigation he disclosed that he had sold heroin to one Ghulam Ali Shah son of Ghulam Nabi Shah resident of Madina, Gujrat (the appellant herein). The Inspector C.I.A. has, therefore, directed him (Abdul Matin S.I.) that a raid be arranged for Ghulam Ali Shah in order to recover heroin. Accordingly a police party consisting of Muhammad Yousaf F.C. (P.W.2) and Muhammad Nazir S.I. Police (P.W.3) alongwith Tariq Mahmood accused and other police officials as mentioned in the F.I.R. was arranged. The party reached village Madina and apprehended the accused/appellant from Baba Pirwali Gali, on personalpsearch a plastic envelope containing heroin was found from the fold (dub) of the Shalwar.

On weighment it was found 250 grams. 10 grams out of it was separated as sample for the chemical analysis to be done by the Chemical Examiner, and the rest was separately sealed. Both these parcels were prepared and sealed by Abdul Matin S.I. (P.W.4). The recovery memo. Ex. P.A. prepared by Abdul Matin was attested by Muhammad Yousaf (P.W.2) and Muhammad Nazir (P.W.3). The complaint drafted in this behalf by Abdul Matin S.1. was sent through Nazar Muhammad (not produced) to the police station Saddar where the F.I.R. No. 91 was recorded by Hanif Hussain A.S.I. (not examined and given up). The investigation was taken in hand by Abdul Matin S.I. (P.W.4). The site plan Ex.P.C. was prepared by him and after recording the statements of P.Ws. and on receipt of a positive report Ex.P.D. from the Chemical Examiner and the completion of the investigation the challan was put up in Court.

3. The charge was denied by the accused/appellant and the prosecution examined four witnesses. They are P.W.1 Niaz Ali, H.C. P.W.2 Muhammad Yousaf F.C. P.W.3 Muhammad Nazir, S.I7 and P.W.4 Abdul Matin, the report of the Chemical Examiner Ex.P.D. was tendered in evidence. P.W.I Niaz Ali stated that he had kept the parcel in Malkhana and later gave it to Muhammad Yousaf (P.W.Z) who took the same in tact to the Chemical Examiner. Muhammad Yousaf was also member of the raiding party. The possessions and the recovery of the material Ex.P./1 is supported by Muhammad Nazir S.I. (P.W.3) and Muhammad Yousaf F.C. (P.W.2). Both of them also proved the recovery memorandum Ex.P.A.

4. The accused/appellant denied the recovery as was alleged by the prosecution witnesses and stated that he had been involved in this case due to enmity. The defence version as given by Syed Toqeer Jaffar (D.W.1) and supported by Seerat Sajjad (D.W.2) and partly put to the prosecution witnesses is as under:‑

"I know accused Ghulam Ali. I carried a business of T.V. repair shop at Chowk Village Madina. About 1‑1/2 years ago, probably in the month of February, when I was present in my shop then a police van reached there and asked the residence of Ghulam Ali accused. As there are 2/3 persons by the name of Ghulam Ali, therefore, I asked them that whether they required Ghulam Ali, who works in press. The police party told they want him, therefore, he lead them to his house and called him out of the house. The police took him alongwith them in the police van. In the following day, I came to know that police had registered a case against Ghulam Ali having in possession heroin. He is a poor man and does not indulge in the business of heroin etc."

The trial Court believed the prosecution and has convicted and sentenced the accused/appellant as mentioned above.

5. We heard the counsel for the appellant who made a statement at the Bar that Tariq Mahmood about whom it was alleged that he had sold the heroin to the present appellant was acquitted by Mr. Muhammad Aslam Sumra, the learned Additional Sessions Judge, Gujrat. We accordingly on 14‑1‑1987 recorded the following orders:‑

"We heard this case at length. During the arguments it transpired that the appellant in this case had allegedly purchased 250 grams of heroin from one Tariq Mahmood, who had been separately prosecuted in Hudood Case No. 57 of 1985 before Mr. Muhammad Aslam Sumra, Additional Sessions Judge. Gujrat and acquitted vide his judgment, dated the 17th of February, 1986. The allegation against him was that 250 grams of heroin was recovered from his possession while he was selling in a Bazar and a further quantity of 1000 grams of heroin was recovered from his Chobara, on his pointing out.

We think that the decision of one case might reflect on the other, We, therefore, think that it is necessary in the interest of justice to send for the record of the case of Tariq Mahmood (Hudood Case No. 57 of 1985 with F.I.R..Nos. 45 and 49, dated 11‑2‑1985, registered at Police Station City Gujrat against Tariq Mahmood). Bailable warrants in the sum of Rs.20,000 with two sureties in the like amount to the satisfaction of the trial Court shall also issue against Tariq Mahmood. The office shall take steps to get the record prepared as soon as possible and fix these two cases together on any date in the 2nd week of February, 1986."

The record has been received. Mr. Ali Ahmed Malik, Advocate the learned counsel for the appellant Ghulam Ali, Syed Iftikhar Ali Shah, Advocate, for the State and Mr. Naveed Shahar Yar, Advocate, for the respondent Tariq Mahmood have been heard. ,

7. The decisions of this case rests on the reliability or otherwise of the prosecution evidence. It is the prosecution case that Tariq Mahmood had supplied information during the investigation that he had sold 250 grams heroin to the appellant. But at the trial Abdul Matin said that only the police personnel formed the raiding party and Tariq Mahmood has neither been cited in the calendar of witnesses nor produced in Court. None of the witnesses knew the locality or the appellant before that occasion. If that be so how did they know about that appellant (Ghulam Ali Shah) was the man to whom Tariq Mahmood had sold heroin, is not explained It was a dark night and proceedings were completed according to the prosecution witnesses in the light of torch. The time the raiding party reached the spot is given differently by the prosecution witnesses. P.W. Nazir has stated that the proceedings were completed while sitting in jeep but Abdul Matin (P.W.4) denied that. The account given above thus points out that there are material contradictions in these statements.

All the witnesses agree that the place where the recovery took place is a thickly populated area but all of them say that no man from public came up there. The time of recovery is about 8‑00 or 8‑30 p.m. The P.Ws. spent a long time there; as all the proceedings viz. drafting of the complaint, the preparation of recovery memos and the weighing and sealing into parcels of the recovered material (as alleged) was done at the spot. It is simply unbelievable that no one would come to the spot at that hour of the evening particularly when the spot was not far‑off from the Chowk. Again, strange enough, that the raiding party picked up the right man who was not previously known to them, not from his house but from the corner of a street at night time on the basis of identification given to them by Tariq Mahmood. All this would not ring true to any one and would not inspire confidence. It is also improbable that the appellant was carrying the material sold on some other occasion to him by Tariq Mahmood at that hour of the night. Undoubtedly he was not there to sell it either as he did have neither the scale nor paper or plastic bags. He thus, could only be called from his house at that hour of the night as stated by the defence witnesses. The defence version when looked at, in view of those facts, appears to be more plausible.

8. The basic principle of Sharia/law is that the conviction must be based on evidence beyond any shadow of doubt. This principle can be deduced from an undisputed Hadith:‑

"Ayesha reported that the Messenger of Allah said Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him, let him have his way, because the leader's mistake in pardon is better than his mistake in punishment: Mishkatul Masabili (Eng. Translation by Fazlul Karim) Vol. II, p. 544 Law Publishing Company, Lahore:"

Because the damage resulting from erroneous sentence is irreversible.

The principle that it is better to acquit guilty persons than to punish an innocent one had been proclaimed by the Prophet of Islam 14 hundred years ago has now become the guiding principle for the safe administration of justice.

9. For the above reasons we do not uphold‑ the conviction of the appellant and allow the appeal of Ghulam Ali Shah, appellant, set aside his conviction and sentences and acquit him of the charge. He is on bail. His bail bond stands discharged. The suo motu notice issued to Tariq Mahmood is also recalled. .

M.B.A./357/F.Sh. Appeal allowed.

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