' This is an appeal from the judgment, dated 28-5-1988 passed by Ch. Sarfraz Ahmad Tarar, the Additional Sessions Judge, Bahawalpur whereby Ashiq alias Kaloo has been found guilty of the offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to two years' R.I. With five stripes and a fine of Rs,1,000 or in default of payment of fine to further suffer R.I. For six months.
' The allegations against the appellant are that he was apprehended near Madni Masjid, Chowk Chabootra Bazar Ahmadpur Sharqi, District Bahawalpur on 15-10-1987 at 4-00 p.m. And on personal search five `Purris' weighing 12 grams of heroin was recovered. A complaint in this behalf was drafted by Muhammad Ghafoor A.S.I. (P.W.1) and the same was formally registered by Sher Muhammad (P.W.4). It is stated in the complaint that on 15-10-1987 at about 4-00 p.m.
Complainant Muhammad Ghafoor along with Liaqat Ali (P.W.3) and Noor Muhammad (P.W.2) were present at Chabootra Bazar Ahmadpur East. The information was received that a person was selling heroin near Madni Masjid. The complainant along with the witnesses reached the Masjid and apprehended the accused Ashiq and on his personal search from the side pocket of his shirt 12 grams of heroin containing in five packets (Purris) was recovered, out of the said recovered heroin one gram was separated for analysis by the Chemical Examiner. The two parcels thus prepared were sealed and the recovery was attested by Moor Muhammad and Liaqat Ali. The complainant drafted by Muhammad Ghafoor was sent to the Police Station Ahmadpur Sharqi (East) and the formal F.I.R. Was registered by Sher Muhammad (P.W.4). The case was investigated by Muhammad Ghafoor and having received the report of the Chemical Examiner in the positive, the accused was sent up to face trial.
2. On the denial of the charge the prosecution has produced seven witnesses. They are P.W.1 (Muhammad Ghafoor -- the complainant), P.W.2 (Noor Muhammad) and P.W.3 (Liaqat Ali -- member of the police party) deposed about the recovery from the accused. P.W.4 (Sher Muhammad) a formal witness who had recorded F.I.R. P.W.5 (Nazar Hussain H.C.) deposed that he had kept the parcel in Malkhana and on 14-11-1987 had handed over the sample parcel to P.W.6 (Ghulam Abbas) who took the same to the Chemical Examiner. P.W.7 (Khadim Hussain) who had submitted the challan in Court.
' The accused in his statement recorded under section 342, Cr.P.C. Denied the recovery and pleaded false implication due to party faction. No statement on oath was made nor any defence witness produced. The trial Court found the accused appellant guilty of offence punishable under Article 4 of the said Order and has sentenced him as mentioned above.
3. Rana Sardar Ahmad, Advocate, appeared for the appellant and Muhammad Iqbal, Advocate, represented the State. I have perused the record. The learned counsel for the appellant has submitted that P.W.2 (Noor Muhammad) is not a person of that locality. He is a laborer by his own admission and was taking tea at shop. Thus, he is just a chance witness. The witness was not shown the property at the trial nor the property was exhibited in Court. The witness stated that the property recovered was weighed on the spot the scale was brought by some policeman from a shop whose name he was not aware of the witness stands contradicted by P.W.3 (Liaqat) who has deposed that the heroin was weighed at a nearby shop P.W.3 was also not shown the property in Court. It is also found that the report of the Chemical Examiner was not put to the accused under section 342, Cr.P.C.
' The learned counsel has also submitted that from the perusal of the report of the Chemical Examiner Exh.P.D. It is found that the packet in respect of which the opinion was expressed by the Chemical Examiner was sent under a letter dated 26-10-1987 but the P.W.5 (Nazir Hussain) and P.W.1 (Muhammad Ghafoor) do not mention any forwarding letter was obtained from the Superintendent of Police, Bahawalpur. On the other hand P.W.6 (Ghulam Abbas) has deposed that he was asked to take the sample parcel on 14-11-1987 and no forwarding letter was mentioned by him.
' The learned counsel further submitted that Muhammad Ghafoor (P.W.1) is the complainant and he himself is the Investigating Officer, his investigation is biased. It is rather a mockery. It is also not shown as from which packet the sample was obtained.
' For the above reasons I entertain doubt in the prosecution case. The appeal is accordingly allowed, the conviction and sentences passed against the appellant Ashiq alias Kaloo son of Allah Ditta are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.