' FAKHRUDDIN H. SHAIKH, J.--The appellant has filed this appeal from the judgment of Mr. Riaz-ul- Hassan Alvi, Additional Sessions Judge, Rawalpindi, dated 10th September, 1985, whereby the appellant was convicted of offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to suffer R.I. For two years, whipping numbering ten stripes and to pay a fine of Rs,2,000 or in default of payment of fine to further suffer R.I. For six months.
2. The allegation against him is that Mr. Abdul Rashid, Excise inspector, Rawalpindi, was checking the busis at Margala Check Post, Taxila, on 2-1-1985 at 12-15 noon when a wagon came from.
Peshawar side, which was stopped. The appellant was travelling in this wagon. On suspicion the appellant was asked to get down and his person was searched. It is alleged that fifty grams of Heroin was secured from his possession. The two witnesses namely, Muhammad Anwar, Excise Constable and Muhammad Riaz, Police Constable, who were present at the time of recovery had served as recovery witnesses. Mr. Abdul Rashid then recorded complaint and sent it to Police Station Taxila for registration of case Mr. Muhammad Banaras, S.H.O. Taxila, had registered the case, conducted investigation and sent up the appellant for trial.
3. In his statement under section 342, Cr.P.C. The appellant has denied that any Heroin was secured from his possession. On being asked as to why he has been involved in this case he replied.
"Something was recovered beneath the seat, on which I and three other persons were sitting and the police and the Excise party deboarded the three others. I had an altercation with the police and Excise party due to their misbehavior. Due to that grievance this case was concocted against me."
4. The prosecution witnesses in this case pertaining to the recovery the Heroin are' P.W.3 Muhammad Anwar and P.W.4 Muhammad Riaz. Mr. Abdul Rashid had only supervised the recovery.
Hence so far as the recovery of the Heroin is concerned, it shall be determined from the evidence of P.W.3 Muhammad Anwar and P.W.4 Muhammad Riaz. P.W.3 Muhammad Anwar deposes that Mr. Abdul Rashid Excise Inspector, had entered the wagon for checking and had brought down the appellant on suspicion ana handed him over to the witness. The witness further says that he had searched the person of the appellant and recovered the Heroin, which was wrapped in a polythene envelop and was tied with the 'Azarbund' of the Shalwar of the appellant. The statement of Muhammad Riaz (P.141.4) is quite inconsistent with that of Muhammad Anwar P .W.3. I cross- examination Muhammad Riaz has stated that P.W. Muhammad Anwar had entered the wagon and secured a packet of Heroin, which was in his 'Anwar's' hand and came down from the wagon along with the appellant saying that he had recovered the packet containing Heroin from the appellant.
He has thus disproved that the search of the appellant was made after the appellant had got down from the wagon. According to P.W. Muhammad Riaz, the ,packet containing Heroin was seen in the hand of P.W. Muhammad Anwar when he had got down from the wagon along with the appellant. This is contradiction on material point which disproves the factum of recovery of the Heroin from the possession of the appellant. Again Muhammad Riaz is supported by P.W. 6 Baja Muhammad Banaras, S.H.O., who also happened to be present at the time of the recovery. He stated in cross-examination that it was Muhammad Anwar, Excise Constable who, had gone inside the wagon for checking and had 'come down along with the appellant when his person was searched. 'P'.W.5 Abdul Rashid stated that he entered the wagon and not Muhammad Anwar and brought down the appellant therefrom. From the statements of Muhammad Riaz and Muhammad Banaras, it would appear that it is doubtful if the recovery was effected in the manner as deposed to by Abdul Rashid and P.W. Muhammad Anwar.
5. The learned counsel for the State has also failed to reconcile the statements of the two important witnesses namely, P.W.3 Muhammad Anwar and P.W.4 Muhammad Riaz about the mode of recovery. In such cases when the Courts are confronted that evidence which is in the nature of stereotype, there is no way of determining the credibility o the witnesses, except the consistency or otherwise in their statements on material points. If there is contradiction on material point then Court shall be justified in raising a presumption of doubt about the truth of the prosecution story.
6. In view of the contradictory statements of the two recover witnesses about the recovery of Heroin from the appellant, we find that the prosecution story has become doubtful. We give the benefit doubt to the appellant, allow the appeal, set aside the conviction and sentence and acquit him of the charge. The appellant shall, be released forthwith if not required in any other case. Acquittal ordered