' GUL MUHAMMAD KHAN, C.T.--The appellant was convicted by Mr. Ali Aqdas Shahzad, Magistrate, exercising powers under Section 30 of the Cr.P.C., vide his order dated 8th of April, 1989. He was sentenced to seven years' R.I., with whipping numbering 15 stripes and a fine of Rs,10,000 under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979. Similar sentences were awarded under Article 4 of the said Order. It was directed that in case of default in payment of fine he shall suffer six months' S.I. Further. He has challenged his conviction and the sentences through the present appeal.
2. The occurrence took place on the 23rd of January, 1978 at 835 p.m., at Begum Road, near the office of Mr. Ehsanul Haq, Advocate. Munir Ahmad, A.E.T.O., P.W.1, who had apprehended the appellant along with a number of other Excise and Police officials, lodged the first information report to allege that he had recovered heroin from a bag containing two packets of one kilogram each, at the instance of a fake customer namely, Faqir Hussain, P.W.7.
3. The prosecution produced seven witnesses in support of its case. .Munir Ahmad, AETO, P.W.1, Zubair Ahmad, Excise Inspector, P.W.2, Muhammad Azhar, Excise Inspector, P.W.3 and Qamruzzaman S.I, P.W.4 (the Investigating Officer) are the eye-witnesses of the raid and recovery.
Asghar Ali, Moharrir, P.W.5, had recorded the first information report and also kept the sealed parcel of the recorded material and the samples taken from it in safe custody. He later gave the sample to Riasat Ali, F.C., P.W.6, who delivered them to the office of the Chemical Examiner, whose report Ex.P.E., is positive. Faqir Hussain, P.W.7, is the fake customer who had also witnessed the raid and recovery.
4. The appellant in his statement under Section 342 Cr.P.C denied the allegations made against him and appeared as his own witness to state that it was a false case and no recovery was made from him. He further stated that he was ready to swear on the Holy Qur'an that he was innocent and that he was, involved because he gave beating to certain boys who used to stand outside his house. His plea was that it was due to this beating that the Police falsely involved him in the case.
He also produced two witnesses in his defence. Siraj Din, D.W.1 deposed that the appellant came out of the mosque after offering his Esha prayer when two constables took him away. According to him nothing was recovered from the appellant when he was apprehended.
5. In his cross-examination the D.W.1 denied that the appellant was already in volved in four cases and that he was a professional witness. He, however, stated that as this case pertained to his mohalla he appeared to defend the appellant. He also denied that the appellant had previously been involved in 1985 and 1986 and that heroin weighing two kilograms and 10 grams was recovered from him. Muhammad Rafique also appeared as D.W.2 to state that he was a neighbor and that he saw the appellant being apprehended by the Police, outside the mosque and that nothing was recovered from him.
6. It is contended by the learned counsel that as the sentence provided in law, for a quantity of heroin more than 10 grams, is imprisonment for life, a Magistrate with power under section 30 had no jurisdiction to try the same. The learned counsel, however, did not have much to say when he was asked to read the sections 34 and 347 Cr.P.C. Section 347, says that if it appears to any Magistrate before singing judgment that the case ought to be tried by the Court of Session or High Court he shall send the case to that Court. Section 34 provides that a Magistrate specially empowered under section 30 can pass any sentence authorized by law, except a sentence of death or imprisonment for a term exceeding seven yeaRs, The sentence for a quantity over 10 grams of heroin ranges between two years and life imprisonment and so the case could be tried by A the concerned Magistrate and he could have also sent it up if he thought that the sentence of more than seven years should be awarded in the case.
7. The learned counsel then went on to the evidence on the record to say that the same is defective and not only it fails to inspire confidence but that it is false on the face of it. He went through the statement of Faqir Hussain, Excise Constable, P.W.7, the star witness of the case. He was the fake customer, who had settled the bargain with the appellant and also fixed the time and place for the delivery of the contraband material. In his cross-examination he stated that he was made a member of the raiding party at 5.00 p.m. By Munir Ahmad, AETO, P.W.1 along with six other persons.
Munir Ahmad then told him that he was to go as a fictitious customer to the appellant whom he knew beforehand to settle the bargain.
8. The reason for his selection as given by Faqir Hussain P.W.7 was that he lived in a rented house in the same mohalla where the appellant lived. However, he could not tell the name of the owner of the house, name of the street or number of the house. He also did not know the names of the neighbors who lived at his right or left side. He does not know even their professions. He also denied if any passage with stairs went to Kot Abdullah Shah. He did not have any Identity Card with him but stated that the address thereon is of Kharak, Multan Road. The same address he stated was written in the service record and he lived even now on the same record. He said that his service was only three years and that he had never informed his department that he had shifted from Kharak, Multan Road to Kot Abdullah Shah.
9. Faqir Hussain went on to say that he had gone to the house of the appellant, which was at a distance of 1-1/2 and 2 furlongs from Farid Kot House as he knew the address of the appellant beforehand. He, however, could not tell how much far Kot Abdullah Shah was from Mozang Road.
He could not say whether it was ten feet. He also could not tell as to how much time will take from Mozang Road by a vehicle. He stated that there were houses on both sides of street but did not know how long or wide was the street. According to him, he met the appellant outside his house but did not know how far was that place from Mozang Road. He also did not know whether the door of the house of the appellant was on his east, north or south or west side. He also did not know if the house of the appellant was cemented or had brick facing. He also did not know the location of the appellant's house. He did not know what sort of outer door it had. He also did not pay any advance to the appellant and took no sample and in fact had not taken any money from the AETO for that purpose, at the time of settlement of the bargain.
10. The witness went on to say further that all the members of the raiding party were sitting on chairs outside the office of Mr. Ehsanul Haq, Advocate when he came back to report the success story of his bargain. He did not know if the street light was on at that time but knew that the sun was setting when he came back to report on the 23rd of January, 1987. The raiding party then spread out. (The appellant came with the material at 8.35 p.m.) He, however, did not know the distance of the office of Mr. Ehsanul Haq from Mozang Road whether it was 30 feet or not. He also did not know how many bungalows were there in-between the house and office of Mr. Ehsanul Haq, Advocate. He also did not know if the office of Ehsanul Haq is in a flat or on which storey. According to him, it was on the road near the Mozang Road Adda. He also did not know how long was Begum Road and how much time will it take to travel on it. The shops on the Begum Road were open. The street light was lit and the offices of the lawyers were open, traffic was moving and the many people were coming and going.
11. The most important fact stated by this witness was that he had with him a sum of Rs, 30,000 for payment to the appellant and that same amount had been given to him by Munir Ahmad, AETO, P.W.1 but no lard' of this amount had been prepared for the purpose. He, however, admitted that neither was that amount paid to the appellant nor was it even shown to him. Munir Ahmad admitted to have been told by this witness that price settled for one kilogram was Rs, 15,000 but he denied that he gave any amount to this witness, Faqir Hussain. So this witness is thus belied by Munir Ahmad, AETO, P.W.1 on the above score and is at variance with the rest on material aspects of the case.
12. The learned counsel referred to the statements of the other eyewitnesses and submitted that even they contradicted each other on some material aspects of the case. P.W.1 Munir Ahmad stated that he was the first to apprehended the appellant, who had not attempted to escape.
According to Qamaruzzaman P.W.4, P.W.1 and P.W.3 had first apprehended the appellant. P.W.3, however, denied even the knowledge as to who had apprehended the. Appellant.
13. P.W.1 further stated that no people had gathered at the spot and that they remained at the spot for about an hour and a quarter. The P.W.2 stated that though offices of the lawyers were open but not many persons were traversing the road and there was no hustle and bustle. P.W. 3 deposed that he did not know if the offices of the lawyers were open but public was coming and going. P.W.4 said that they did not meet any person and no persons gathered at the time of raid.
14. Zubair Ahmad P.W.2 stated that the secret information was conveyed to Qamruzzaman, Sub- Inspector, P.W.4 and the raiding party was constituted at that time. Munir Ahmad P.W.1 stated in his cross-examination that secret information was given to him alone in his office and he met the police officials outside his office. Zubair Ahmad P.W.2 had deposed that the raiding party was constituted after Qamaruzzaman P.W.4 got the secret information and as incidently all the members of the raiding party were present they were joined. Muhammad Azhar P.W.3 said that the secret information was not received in his presence and he did not know if it was received by Munir Hussain P.W.
15. Zubair Ahmad P.W.2 stated that it was the decision of the raiding party that two kilograms heroin be purchased but no money was given to the fitcitious purchaser. P.W.1 and P.W.2 on the other hand said that the fictitious customer Faqir Hussain was sent to negotiate and settle the bargain.
P.W.4 said that he sent the fictitious purchaser but no money was given to him in his presence.
16. Munir Ahmad P.W.1 stated that the fictitious person left at 7 and the raiding party at 7-30 p.m.
While the appellant came with the heroin at 7-35 p.m. According to P.W.2 the raiding party went after 2-1/4 hours of the departure of the fictitious purchaser. The evidence of P.W.3 was that they reached the spot at 7-30 P.M. And apprehended the appellant at 8-30 p.m. Qamaruzzaman P.W.4 deposed that the fictitious purchaser was sent at 5-15 p.m. He took 1/2 hour in settling the bargain.
He came back and informed the time for delivery was 8-00 p.m. They went to the spot at 7-30 p.m.
17. Faqir Hussain, however, had a different story to tell. According to him the raiding party was constituted at 5-00 p.m. He alone went to settle with the appellant and came back to Begum Road as advised by Munir Ahmad to tell them that bargain had been settled. At that time the sun was on decline do. The raiding party was sitting on chairs but they dispersed when he told them. The appellant however, came long after that. It will he appreciated that according to Munir Ahmad all the members of the raiding party went together to Begum Road at 7-00 p.m. And Faqir Hussain was sent from there.
18. It is quite clear from the statements of the witnesses mentioned above that Faqir Hussain did not know anything about the place where the bargain was settled. May be he had never seen the place what to speak of having lived there. He was telling lies about everything. Thus if the settling of the bargain and the contact of Faqir Hussain is not established, with the appellant the entire case of the prosecution becomes a concoction and a false fabrication.
19. The fact that Faqir Hussain is a liar is proved from the statement of the other witnesses also. All the other witnesses who were members of the raiding party and allegedly had seen the raid and recovery stated that no money was advanced to Faqir Hussain, the fictitious customer. Faqir Hussain, on the other hand, stated that he was given a sum of Rs, 30,000 by Munir Ahmad P.W.1 but he did not know from which account and by what manner he got it.
20. The witnesses also contradicted each other. P.W.1 deposed that he apprehended the appellant first of all. Qamaruzzaman. P.W.4, however, deposed that he was caught, first of all, by P.W. Azhar and P.W. Munir Ahmad. P.WAzhar, however, expressed complete ignorance about this fact and stated that he did not know who apprehended him. Muhammad Azhar P.W.3 further deposed that the recovered contraband material was weighed by Munir Ahmad. This fact, is however, not mentioned in the recovery memo Ex.P.A. This witness also differed in respect of the time and also the presence of the passersby. P.W.7 had further stated that all the members of the raiding party were sitting outside the office of Mr. Ehsanul Haq, Advocate when he came back after striking the deal. None of the other witnesses, however, stated so or mentioned their sitting on chairs or that they had reached the office of Mr. Ehsanul Haq before sunset or that the fictitious customer came back there, after the struck he deal.
21. In this view of the matter we find that the case of the prosecution, as presented, appears to be false, fabricated and so conviction cannot be maintained. This appeal is allowed, the conviction and the sentences are set aside and the appellant shall be released forthwith unless he is wanted in any other case. The contraband material shall be destroyed in accordance with the law.
22. Before parting with this case I deem it my duty to observe that the prosecution witnesses have either deliberately spoiled this genuine case or have concocted an absolutely false case for ulterior motives. None of the situations is commendable and in view of the expanding public view that the investigation and prosecution of such cases are not being done genuinely, I would like the Home Secretary to have a thorough probe in the conduct of the concerned officials and deal with them in accordance with law.