FIDA MUHAMMAD KHAN, J.-- The Additional Sessions Judge, Rawalpindi on 31-7-1988 convicted Muhammad Amjad Khan son of Khadim Hussain, resident of Muzaffarabad under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced him to undergo three years' R.I. With whipping numbering 10 stripes and to pay a fine of Rs.2,000 or in default of payment of fine to further undergo two months' R.I. Muhammad Amjad Khan has filed this appeal against his conviction and sentences.
2. The facts of the case briefly stated are that on the night between 30/31-7-1987 Muhammad Anwar, S.I./S.H.O. (P.W.3) alongwith his subordinates was present at Pirwadhai Road, Rawalpindi in connection with the checking of the narcotics. At 0200 hours on 31-7-1987 he apprehended appellant on suspicion and on his personal search recovered a packet of heroin from the right side pocket of Saluka which he was wearing under the shirt. The heroin was weighed and was found to be 40 grams. He separated five grams of heroin and sealed it into a parcel for sending it to the Chemical Examiner. The remaining quantity of heroin was sealed into another parcel. Currency notes of Rs.1,800 were also recovered from the shirt of the appellant. A formal F.I.R. Was registered at Police Station Pirwadhai, Rawalpindi on the same day at 2-45 a.m. After completion of the investigation the appellant was challaned in the Court for trial.
3. At the trial the prosecution examined four witnesses. Bashir Ahmad, Muharrir (P.W.1) recorded the formal F.I.R. (Exh.PA./1) on the basis of complaint Exh.PA. Drafted by Muhammad Anwar S.I./S.H.O.
(P.W.3) and kept the recovered heroin sealed in two parcels in Malkhana for safe custody. On 3-8- 1987 he delivered the sample of heroin to Faqir Muhammad, F.C. (P.W.4) for onward transmission to the Chemical Examiner. Zafar Zaman, A.S.I: (P.W.2) is a witness of recovery memo: Exh.P.B.
Muhammad Anwar, S.I. (P.W.3) is complainant and Investigating Officer. He also handed over the parcel of the currency notes and heroin to the Moharrir. Faqir Muhammad, F.C. (P.W.4) delivered the parcel of heroin in office of the Chemical examiner. The report of the Chemical Examiner Exh.P.D. Is positive.
4. The appellant denied all the allegations levelled against him and claimed that he was innocent.
According to his statement under section 342, Cr.P.C. He said that since he had protested against the behaviour of the police personnel with the passengers and as such he was falsely implicated in the present case.
5. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
6. The learned counsel for the appellant routed out several discrepancies Though Zafar Zaman, A.S.I. (P.W.2) was not posted at Police Station Pirwadhai, but he had stated that he was posted at Police Station Pirwadhai, Rawalpindi. In his cross-examination then he denied the same.
Muhammad Anwar, S.I. (P.W.3} stated that the appellant had run away 70-80 yards on seeing the police party but Zafar Zaman A.S.I. (P.W.2) said that he did not run and he was overpowered at the spot. He also said that the accused was wearing Shalwar and shirt of blue colour while P.W.3 stated that the colour was white. P.W.3 did not secure the Saluka from where heroin was allegedly recovered. No bus ticket was recovered from his personal search. Also no person from the public was associated during the whole proceedings. The learned counsel for the State was of the view that P.W.2 might have mixed up the matter of posting of Zafar Zaman, A.S.I. He insisted that the discrepancies were minor in nature.
7. Taking into consideration the discrepancies pointed out we are of the view that these are not minor in nature. The statements of the P.Ws. Contradict each other on material points. The posting of Zafar Zaman A.S.I. (P.W.2) also creates some doubts about his presence at spot. His statement is in conflict with statement of Muhammad Anwar, S.I. (P.W.3). Thus, we feel that the factum of the recovery of heroin from the appellant has become doubtful and in the, circumstances of the present case we are inclined to give him benefit of doubt.
8. In view of the above appeal of Muhammad Amjad Khan is allowed. His conviction and sentences are set aside. Muhammad Amjad Khan son of Khadim Hussain shall be set at liberty forthwith if he is not required in any other case.