The appellant was convicted by Malik Mumtaz Ahmad, Additional Sessions Judge, Sargodha, vide his order dated 15th January, 1989, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to three years' R.I., with whipping numbering twenty stripes and a fine of Rs.1,000 in default of payment of fine he was to suffer four months' R.I. Further. He has challenged the conviction and the sentences through the present appeal.
2. The occurrence is said to have taken place on the 10th of July, 1987, at 2--05 p.m., at Chowk Shama Cinema, which is one mile from the Police Station Cantt. Sargodha. The complaint was lodged by Aamar Masood, S.I., P.W.5, on which a case was registered by Muhammad Vial, Moharrir Head Constable (not produced) on the same day at 2-30 p.m. It was alleged that the appellant was found in possession of 110 grams of heroin, which was recovered from the right --hand side- pocket of his shirt.
3. The prosecution produced five witnesses in support of its case. Kafaiyat Hussain, Head Constable, P.W.4, had kept the recovered material in safe custody and subsequently, gave it to Ghulam Muhammad, Foot Constable, P.W.3, who took it to the Chemical Examiner. The recovery was made by Aamar Masood, S.I., P.W.5 and the same was witnessed by Zulfiqar Haider Shah, Foot Constable, P.W. And Khizar Hayat, Foot Constable, P.W.2.
4. The appellant in his statement recorded under section 342, Cr.P.C., denied the allegations made against him and stated that he had been involved by the police due to animosity. The reason stated was that as his mother Mst. Rashida had made an application against C.I.A. Staff on the 5th of June, 1987 they had involved him falsely in the case. He also produced two witnesses in his defence as D.W.1 and D.W.3 and also appeared as his own witness (D.W.2).
5. It is contended by the learned counsel for the appellant that the entire case of the prosecution is false, on the face of it, as if the information received by the police was that the appellant was selling heroin and was standing for the purpose, at the relevant time, at the Chowk Shama Cinema then he would not have the bulk, without a scale and small pieces of paper or should have packets ready for sale. He also referred to some other discrepancies and the absence of any public witness at the time of recovery though the police had prior information and even the place of occurrence is admittedly a very busy place and the time stated is 2-00 p.m.
6. As the contention had some force I enquired about the case-property but the same was not available in the Court yesterday, and therefore, I asked the prosecution to produce the same which has been done this morning. The seal of the packet has been seen and the same is intact. It has been opened in the presence of the learned Additional Advocate-General as also the learned counsel for the appellant. The material is, undoubtedly, in bulk and according to the recovery memo. Neither was any scale recovered nor pieces of paper in which the bulk could be dispensed for the purpose of sale The defence version, therefore, I appears to be true.
7. In view of the situation, the learned Additional Advocate-General, is not in a position to support the impugned order. The case thus is false, on the face of B it and consequently, this appeal is allowed. The conviction and the sentences are set aside and the appellant shall be released forthwith, if not wanted in any other case.
8. As the case has been found false I think the tendency on the part of sonic police officers to involve innocent persons for their personal grudge must be discouraged. I, therefore, direct that a copy of this order shall be sent to the Home Secretary, Punjab, who shall get an investigation conducted in the matter with the delinquent officials concerned in accordance with the law so as to deter and discourage others from such nefarious practices