' ABDUR REHMAN KHAN KAIF, J.-- Zulqarnain Shah son of Aulad Hussain Shah, aged about 32 years, resident of Jalalpur in Mianwali District, was tried by Ch. Muhammad Aslam Janjua, the learned Additional Sessions Judge, Mianwali, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) in a case registered vide F.1.R. No,28, dated 8-3-1988 of Police Station Kala Bagh on the allegations that heroin weighing 20 grams was recovered from his personal search. Vide his judgment dated 20-7-1988 the learned trial Judge found him guilty of the offence punishable under Article 4 of the said Order and convicted him thereunder. On conviction he was sentenced to two years' R.I., whipping numbering five stripes and to a fine of rupees one thousand or in default to further undergo R.I. For three months.
2. Feeling aggrieved the above-mentioned convict has preferred the present appeal against the impugned judgment wherein he has challenged his conviction and sentences on the grounds mentioned therein.
3. The facts of the case briefly stated are that on 8-3-1988 at about 8-00 p.m., Muhammad Aslam Khan, A.S.I. (P.W.4) alongwith his subordinates was present near the hotel of Jumma Gul Afghani situated near the bus-stop Kot Chandna when he received a secret information that a person was smoking cigarette containing heroin in front of the hotel of Qayyum Khan Afghani. Muhammad Aslam Khan, A.S.I., raided the place and apprehended the accused who was trying to run away. As a result of his personal search a ploythene envelope containing 20 small packets of heroin was recovered from the right side pocket of his shirt which was taken into possession vide recovery memo. (Exh.P.B.). The complaint (Exh.P.A.) was drafted and sent to the Police Station Kalabagh where a case was registered vide F.I.R. (Exh.P.A./1) on the same date at 9-10 p.m. Ten grams of the heroin was separated for the purpose of sample which was separately sealed. The remaining heroin was also made into a sealed parcel. Muhammad Aslam Khan, A.S.I., arrested the accused and after the usual investigation submitted a complete challan for trial against the accused.
4. At the trial the prosecution examined four witnesses in support of its version. The positive report of the Chemical Examiner (Exh.P.D.) was also tendered in evidence. The statements of Muhammad Farooq, A.S.I., (P.W.1) and that of Rafiullah, F.C. (P.W.2) arc formal in nature relating to the registration of the case, keeping of the case property in safe custody and the subsequent delivery of the sample in the office of the Chemical Examiner. Direct evidence in this case about the recovery was, however, furnished by Sardar Khan, F.C. (P.W.3) and Muhammad Aslam Khan, A.S.I. (P.W.4). In his statement Sardar Khan, F.C. Narrated the same facts as given in the F.I.R. He deposed that on the basis of a secret information the appellant was apprehended and as a result of his personal search the abovementioned quantity of heroin was recovered in 20 separate small packets from an envelope from the right side pocket of his shirt, which was taken into possession in his presence vide recovery memo. (Exh.P.B.) duly signed by him. Muhammad Aslam Khan, A.S.I. (P.W.4) has also given a similar version and has reiterated the same version as given in the complaint (Exh.P.A.) duly incorporated in the F.I.R. (Exh.P.A./1).
5. The accused when examined under section 342, Cr.P.C., denied the allegations against him and stated that he was falsely involved in the case. According to him, the heroin was planted upon him by Muhammad Aslam Khan, A.S.I., as he was inimical towards him. The appellant declined to make a statement on oath but has produced evidence in his defense comprising of the statements of Muhammad lqbal, Clerk (D.W.1), Abdullah Khan son of Aziz Khan (D.W.2), Habibullah son of Muhammad Yusaf (D.W.3), Shahbaz Khan son of Ranoaz Khan (D.W.4), Muhammad Nasir son of Malik Rab Nawaz Khan (D.W.5) and Abdullah Shah son of Auolad Hussain Shah (D.W.6). He has also tendered in his defense evidence certain documents shown as (Exh.D.B.), (Exh.D.C.) and (Exh.D.D.)
The statement of Muhammad Iqbal, Clerk (D.W.1) is relating to some entry in a register produced concerning an application submitted by Rashid Ahmad Shah son of Jamat Ali Shah Mork the D.M., Mianwali against the local police while Abdullah Khan (D.W.2), Habibullah (D.W.3) and Shahbaz Khan (D.W.4) have stated that the accused was innocent and that they had also appeared before the D.S.P., in that connection during the investigation in defence of the accused. Out of the mentioned witnesses Habibullah and Shahbaz Khan are the Councilors of Kot Chandna. Shahbaz Khan (D.W.4) has also explained that Rashid Ahmad Shah was nephew of the accused.
Muhammad Nasir, Councilor (D.W.5) has deposed that he had seen the accused sitting with the police party in a pick-up going to Kot Chandna and he also appeared in defence of the accused before the D.S.P. While Abdullah Shah (D.W.6) is the real brother of the appellant and according to him, a case under section 393/392/426, P.P.C. Had been registered against him at Police Station Kalabagh on 12-12-1972 and he submitted an application (Exh.D.W.6/A) to the S.P., Mianwali and the case was cancelled.
6. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
7. Learned counsel for the appellant during the course of his arguments took us through the evidence and pointed out some discrepancies and contradictions in the statements of Sardar Khan and Muhammad Aslam Khan, P.Ws. He submitted that in spite of prior information no witness from the public was associated with the search leading to the recovery. He also referred to the abovementioned documents and the statements of the D.Ws. Recorded in the case and stressed that from all the material as well as the evidence led in defence by the appellant it clearly transpires that the local police had no good relations with the appellant and members of his family and that he was accordingly falsely involved in the case when a small quantity of heroin was foisted upon him. It was also submitted by the learned counsel for the appellant that most of the witnesses produced in defence by the appellant were respectable and reliable persons of the locality whose evidence was discarded by the learned trial Court for no good reasons.
8. In the instant case the entire evidence about the recovery comprises of the statements of Sardar Khan, F.C. (P.W.3) and Muhammad Aslam Khan, A.S.I. (P.W.4). According to them, as a result of his personal search on the basis of a secret information heroin weighing 20 grams in small packets was recovered Trom the possession of the accused. Sardar Khan, F.C. (P.W.3) has deposed that there were shops and hotels near the place of recovery, but only one hotel of Afghan Refugees was open and the rest of the hotels were closed. Similarly, he has deposed that the heroin was wrapped into small packets of papers, but he did not remember the color of the packets. In his cross- examination Muhammad Aslam Khan, A.S.I. (P.W.4) has admitted that Abdullah Shah, brother of the accused, was known to him. He admitted that Abdullah Shah, brother of the appellant, had made an application to the D.I.-G. For re-investigation of this case and that the matter was referred to the D.S.P., Kalabagh. He further admitted that subsequently the said Abdullah Shah made another application to D.I.-G. For reinvestigation and as such the matter was referred to D.S.P. Headquarters for investigation. In his cross-examination this witness has deposed that there were hotels and shops near the place of recovery but they were closed at that time as it was evening. He however, admitted that the hotel of Ghulam Jaffar remains open round the clock, which was at a distance of about 60/70 yards from the place of recovery. He was unable to recollect the actual time he had left the police post for the recovery. He also admitted that all the Councillors of Kot Chandna had appeared before the D.S.P., Headquarters in defense of the accused durin4 the investigation of the case. He further admitted that there was a wooden cabin of Coca Cola in front of the hotel of Juma Gui Afghani, but he was unaware whether it was open or closed. It is also clear from his statement and the material available on the record that nothing except the heroin was recovered from the personal search of the accused. A suggestion was put to him about his strained relations with the brother of the appellant, but he denied the suggestion.
9. Perusal of the record and the admissions made by Muhammad Aslam Khan A.S.I. (P.W.4) in his cross-examination reveal that applications were repeatedly made to the higher authorities for the transfer of the investigation of the case to some disinterested officers. It is also an admitted position that the local Councillors had also appeared en bloc before the D.S.P., in defence of the appellant during the investigation of the case. The witnesses produced by the accused in his defence are all respectable persons of the locality and they have been admittedly appearing in defence of the accused throughout the proceedings. The documents referred to above which have been placed on the record also give an indication to some extent of the involvement of the local police in some affairs between the relatives of the appellant and some other persons.
10. All the above factors when taken together lead one to the conclusion that the case of prosecution against the appellant is not free from doubt. The small quantity of heroin involved further makes the case doubtful in view of the peculiar circumstances and the possibility of foisting of that much quantity upon the appellant cannot be ruled out. It is, no doubt, well-settled now that in the absence of any motive or grudge for false implication, police witnesses are as good witnesses as any other person from the public, but in view of the peculiar circumstances of this case when there are clear allegations of mala fides and reliable evidence has been led in defence, it shall not be safe to rely solely on the statements of the two witnesses of the police department appearing in this case.
11. Having taken into consideration the entire material on the record we are of the view that an element of doubt clearly exists in the prosecution case and the benefit of such doubt shall have to be extended to the accused.
12. For the reasons stated above, we allow this appeal, set aside the conviction and sentences of Zulqarnain Shah son of Aulad Hussain, and acquit him of the charge. He is in jail. He shall be