FIDA MUHAMMAD KHAN, J.-- The Additional Sessions Judge, Attock on 13-6-1988 convicted Muhammad Nasir Jamal son of Malik Allah Dad resident of Langar, P.S. Pindsultani under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced him to undergo R.I. For two years, whipping numbering ten stripes and fine of Rs.1,000 or in default of payment of fine to further undergo three months' R.I. He has been given benefit of section 382-B, Cr.P.C. Muhammad Nasir Jamal has filed this appeal against leis conviction and sentence.
2. The facts of the case briefly stated are that on 24-4-1986 at 11-15 p.m. Said Shah, A.S.I. Was present at Police Check Post, Khushal Garh alongwith his subordinates. A bus coming from Kohat side was stopped by him. He entered the bus for checking and on suspicion brought down the appellant. The appellant was searched and 20 grams of heroin was recovered from his person. The heroin was wrapped up in a polythene envelope tied with thread at his right upper arm. Ten grams of heroin was separated and sealed into a parcel. The remaining quantity of heroin was also sealed into another parcel. Driving licence, Identity Card of the appellant and sum of Rs.50 were also recovered from him, The formal F.I.R. (Exh.P.C./1) was recorded and after the completion of the investigation the appellant was challaned.
3. At the trial the prosecution examined four witnesses. Muhammad Khan H.C. (P.W.2) kept sealed parcels from 25-4-1986 in his possession at Malkhana for safe custody and on 11-5-1986 he handed over the sealed parcel to Mian Muhammad, Constable (P.W.1) for onward transmission to the Chemical Examiner. Mian Muhammad, Constable (P.W.1) delivered sealed parcel in the office of the Chemical Examiner. Fraqat Khan, Constable (P.W.3) is a witness of the recovery of 20 grams of heroin, driving licence, Identity Card and sum of Rs.50 vide recovery memos. Exh.PA. And Exh.P.B.
Said Shah, A.S.I. (P.W.4) is the Investigating Officer. He recovered the said articles from the personal possession of the appellant, drafted the complaint Exh. F.C. And sent the same for formal F_I.R to the police station where Zafar Shah, Naib-Moharrir recorded the same. The Chemical Examiner has confirmed that `the parcel contains heroin. His report is at Exh.P.E.
4. The appellant when examined under sections 342 and 340(2), Cr.P.C. Denied all the allegations levelled against him and claimed that he was innocent and had been falsely involved due to some altercation that took place betweenhim and the police men. He has also produced a defence witness in his favour. Sarwar Khan (D.W.1) has stated that he was travelling with the accused in the same bus on the above date. The bus was stopped at Police Check Post, Khushal Garh at 11-00 p.m.
At that time Muhammad Nasir Jamal, the appellant, was sleeping. A constable entered the bus and awakened the appellant and slapped him. In return the appellant also slapped the constable.
In the meantime, the A.S.I. Also entered the bus and took down the appellant from the bus. He has further stated that no heroin was recovered from the appellant and all the passengers including himself had asked the police to release him because he was innocent.
5. The learned counsel for the defence pointed out some discrepancies. He submitted that there was a delay of 16 days in handing over the sample parcel of heroin to the Chemical Examiner with no explanation for this inordinate delay. He also referred to some contradictions in the statements of P.Ws. On the material points. He also submitted that the prosecution version was interpolated to cover the delay in lodging the F.I.R. The learned counsel for the State supported the prosecution and referred to the statement of defence witness which was variant with other statements. He was of the view that there was no previous enmity between the police and the appellant, therefore, the official version was not prejudiced.
6. Having been taken to the evidence in this case and having perused it with the assistance of the learned counsel for the appellant and for the State, we are of the view that the prosecution has not succeeded in establishing the case against the appellant beyond doubt. Though the police officials are as good witnesses as others could be, unless proved otherwise, in the circumstances of the present case, we are inclined to believe the defence witness and the appellant as 1 circumstances of the case lead to the natural reaction as stated by the appellant. Altercation could take place in the stated situation. The reason of delay in sending the sample to the Chemical Examiner has also not been duly explained. All these factors give rise to some doubts and the appellant should be given the benefit of that.
7. In view of the above, appeal of Muhammad Nasir Jamal son of Malik Allah Dad is allowed. His conviction and sentences are set aside. The bail bonds of appellant are discharged.