' The petitioner, Muhammad Bashir alias Bashir Ahmad, has moved this Constitutional petition praying therein that the registration of case F.I.R. No, 27/88 with Police Station Phuklian, District Sialkot under section 156/178 of the Customs Act and section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, may be quashed by declaring the Same illegal and being based on mala fides.
2. The allegation in brief is that on 14-7-1988 F.I.R. No,27/88 was registered with Police Station Phuklian District Sialkot on the statement of Major Wing-Commander, Saif Ali Shah, under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sections 156(1), 8, 9, (92) and 178 of the Customs Act, 1969. The information was received by Lt.-Col. Munir Akhtar disclosing that huge quantity of heroin is likely to be smuggled into occupied Kashmir. Accordingly, a raiding party was constituted consisting of Muhammad Aslam R.J. 1298, Inspector Muhammad Faiz No, R.J.1352, Sub- Inspector Muhammad Ismail, Company Commander No,RJ. 1610, Sub-Inspector Muhammad Saddique No,15105, Lance Naik Abdul Ghafoor No, 4848, Constable Nazar Hussain No, 12984, Constable Muhammad Boota No, 15972, Constable Muhammad Ilyas No, 15890, Constable Barkat Ali and Lance Naik Driver Karamat Ali under the leadership of Wing-Commander Lt.-Col. Munir Akhtar. The raiding party proceeded from the Rangers Post towards occupied Jammu and Kashmir at about 8-00 p.m. On 12-7-1988. The members of the raiding party took up their positions there at about 2-00 a.m. On 13-7-1988. Four unknown persons out of whom two persons were carrying bags on their heads were found coming towards the State from Pakistan side. The raiding party shouted at the accused whereupon the four unknown persons threw away the bags and disappeared in a nearby forest. They started firing from revolvers. The raiding party also fired from G-III rifles in return. However, the accused ran away m the darkness in the forest leaving behind their plastic bags. From the bags left by the accused white powder of heroin weighing 54 Kgs. Was recovered, the price of which is about Rs,54,00,000. Samples were sent to the Chemical Examiner and accordingly the above-referred case was registered against the unknown accused.
3. The case of the petitioner is that he has falsely been involved in this case because of mala fides on the part of the respondents. Learned counsel submits that Muhammad Iqbal, brother of the petitioner, filed a Habeas Corpus Petition in the Lahore High Court, wherein a bailiff was deputed for the recovery of the petitioner and vide the report of Mr. Muhammad Irshad Bailiff of this Court, dated 21-8-1988, no case was found to have been registered against the petitioner. It was reported by the bailiff that condition of the detenu was miserable and that he had been subjected to beating by the Border Police. It was also mentioned by the bailiff that the respondent Raja Fiaz Khan disclosed to him that the petitioner has been arrested by him on 16-8-1988 in a fire-arms case. However, no proof of the case was shown and instead it was stated that a police officer has been sent to Police Station Phulkian for the registration of a case against the petitioner on 17-8- 1988. The bailiff proceeded to state further that there was no proof against the petitioner available in the Headquarters. The bailiff stayed in the Headquarters from 5-25 p.m. To 9-30 p.m. In order to find out the factual position in the case. However, the respondents did not show him any case whatsoever, having been registered against the petitioner. In the night, the bailiff reached the Police Station, Phulkian and there too no proof whatsoever of the involvement of the petitioner in any criminal case was shown to him. The learned counsel on the basis of the report forcefully submitted that in order to save their skin, the respondents have falsely involved the petitioner in the case referred to above. It is next urged by the learned counsel that contempt petition was also moved against the respondents which petition also infuriated them so much so that the petitioner was ultimately involved in this case with ulterior motives to take revenge from him. The learned Additional Advocate-General was specifically directed to appear and assist the Court. The learned Law Officer appeared and frankly conceded that there is absolutely no evidence available on record to connect the petitioner with the commission of the crime. The Investigating Officer was also summoned and he made a statement in Court on 17-10-1988 that statements of Abdul Ghafoor and Muhammad Yousaf have been recorded by him under section 161, Cr.P.C. Disclosing that the petitioner was carrying heroin weighing 54 Kgs. This is the whole evidence against the petitioner. This statement of the Investigating Officer was outrightly discarded even by the learned Law Officer. It may be pointed out that it was not at all possible for the above-said two witnesses to recognize the petitioner as one of the four unknown accused who were carrying heroin in the dead of night on 14-7-1988. These two alleged eyewitnesses who have seen the petitioner while running in the night were not the members of the raiding party constituted by Lt.-Col. Munir Akhtar on 14-7- 1988. In this view of the matter, it appears that these two witnesses have been procured by the Investigating Officer with mala fides to provide some evidence against the petitioner for his involvement in the case. The background of the case shows that the brother of the petitioner filed a Habeas Corpus Petition against the respondents for recovery of the petitioner and despite the clear order of the Court the respondents failed to produce the detenu before the High Court and further a contempt petition was also moved against the respondents. In the circumstances, possibility of false involvement of the petitioner in the case cannot at all be ruled out altogether. The report of the bailiff dated 21-8-1988 totally belies the case of the prosecution. The petitioner is not named as one of the four accused persons in the F.I.R. This is not the case of the prosecution that the petitioner was identified at the time when the above-mentioned four accused ran away from the spot. In my considered view, the petitioner has been falsely involved in the case by the respondents with an ulterior motive to save their own skin. This fact is sufficiently established in view of the background of the case.
4. The upshot of the above discussion is that the writ petition succeeds and is allowed.
Consequently the impugned F.I.R. No, 27/88 to the extent of the petitioner is hereby quashed leaving the parties to bear their own costs. .