' Criminal Revision No,82/I of 1989 questions the correctness, legality and propriety of the order of conviction recorded by the Court of Magistrate Ist Class, Gujrat, which was later on confirmed in appeal by the Court of the learned Additional Sessions Judge, Gujrat. Petitioner was found guilty on the charge of selling 30 grams of Charas to a fake customer Muhammad Ijaz, Constable and was accordingly sentenced to two years' R.I., 10 stripes and fine of rupees five hundred or in default two months' S.I. Further under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the Prohibition Order. He was further sentenced to one year R.I. And fine of rupees three hundred or in default one month S.I. Further on the charge of possession and recovery of 500 grams of Charas under Article 4 of the Prohibition Order.
2. Briefly stated, a police party of Task Force, Gujrat got a spy information at Nala Bridge on Jalalpur Jattan Road that a person was selling Charas near the petrol pump. Muhammad Ijaz, Constable (P.W.6) made a fake customer giving him tainted currency notes was in the sum of rupees forty who handed over the money to the petitioner to purchase 30 grams of Charas from him and signalled the raiding party which immediately reached the spot and apprehended the petitioner from whom tainted currency notes of Rs,40 and 500 grams of Charas were recovered. There were prepared two separate recovery memos to the effect which were witnessed by Feroz Din and Muhammad Abbas, police constables, besides one Rehmat Ullah a public man. One memo. Exh.P.C.
Has been earlier prepared about the search of Muhammad Ijaz, Constable before entrusting him the assignment of fake customer which was witnessed by Feroz Din and Muhammad Abbas Constables only. There were separated samples out of 30 grams and 500 grams of Charas earlier recovered and taken into possession which were sent to Chemical Examiner wherefrom reports in positive were received.
3. Prosecution examined Muhammad Abbas, Head Constable, a marginal witness of the recovery memos. As (P.W.1); Feroz Din, Constable, another marginal witness of the recovery memos. As P.W.2; Muhammad Afzal, Constable who delivered the samples in the office of Chemical Examiner as P.W.3; Muhammad Zaman S.H.O. As P.W.4; Imtiaz Ahmad, A.S.I. Who recorded the formal F.I.R. As P.W.5 and Muhammad Ijaz, Constable, the fake customer as P.W.6. Rehmat Ullah the only public witness of the recoveries was abandoned under allegation that he has been won over by the petitioner.
4. Javed lqbal, petitioner, professed innocence throughout and denied the charges and stated that he has been falsely implicated in the case at the instance of his political rival, Ch. Gul Nawaz, Ex- MPA. He produced Nasrullah Khan, Councillor as D.W.1; Rehmat Ullah the only public man as marginal witness of the recovery memos as D.W.2; Muhammad Riaz Dar, Councillor as D.W.3 and himself as D.W.4. The Councillors and the petitioner stated that Muhammad Zaman, Sub-Inspector, P.S. City had falsely implicated the petitioner in the case at the instance of Ch. Gul Nawaz Ex-MPA, his rival oppottent. Rehmat Ullah (D.W.2) stated that no recovery was made from the petitioner in his presence and that he was running a tea-stall outside the police station and that his signatures were obtained on blank papers which were later on converted into recovery memos. Of the contraband Charas.
5. Muhammad Bilal, Advocate for the petitioner and Muhammad Aslam Uns, Advocate for the State were heard at length. The evidence on record was also put to a detailed scrutiny. It was found that there was not prepared a memo. Delivering eight tainted currency notes in denomination Rs,5 each to Muhammad Ijaz, constable (P.W.6) who was deputed as fake customer to purchase contraband Charas from the petitioner. However, there was prepared a memo. Exh.P.C. Relating to the personal search of Muhammad Ijaz, constable, stating that nothing was recovered from him.
Further Muhammad Abbas and Feroz Din, marginal witnesses of the said recovery memo. And Muhammad Zaman, Sub-Inspector the author of the memo. However, did not give ,evidence at all about memo. Exh.P.C. At the trial. The said memo was also not got witnessed by independent witness, Rchmat Ullah, though he was present at the time of its preparation. Other recovery memo.
Exh.P.B., pertains to the recovery of eight tainted currency notes of Rs,5 in denomination each and 500 grams of Charas from the petitioner at the time of his personal search in the presence of the police personnel and Rehmat Ullah, a public man. So memo. Exh.P.A. Pertains to the recovery of 30 grams of Charas from Muhammad Ijaz, Constable, allegedly purchased by him as fake customer in lieu of Rs,40 and the same was also witnessed by Muhammad Abbas and Feroz Din, Constables and Rehmat Ullah, a public witness. As already stated Rehmat Ullah a public man was abandoned under allegation that he was won over by the petitioner. He was later on examined as D.W.2 and he denied if he ever accompanied the raiding party and if in his presence the recovery was made. He stated that his signatures were obtained on blank papers. He denied the suggestion that he has been giving false evidence in collusion with the accused/petitioner. It is one thing that a recovery is witnessed only by police personnel which is to be believed if it rings true and inspires confidence. It is, however, a different thing if the recovery is also witnessed by a public man besides the police personnel and the said public man denies the recovery at all. In that situation the evidence of the police personnel should be above-board and confidence inspiring and to be sufficient to prove the charge and simultaneously to rebut the evidence furnished by the public man denying the recovery.
6. Herein, the petitioner is not an ordinary man. He is the ex-Chairman of the Municipal Committee, Jalalpur Jattan, that at the time his rival Ch. Gul Nawaz was also a Municipal Councillor who was later on elected as MPA and he has allegedly involved him in criminal cases in collusion with the local police. It is on record that on the same day and time there was also registered another case of the recovery of 4/5 kilograms of charas as against the accused/petitioner in which the same police personnel furnished evidence against him and he has earned honourable acquittal in the said case. Nasrullah Khan, a Municipal Councillor (D.W.1) stated on Oath that on the day of occurrence a police constable had taken along the accused/petitioner to police station as summoned by Muhammad Zaman, Sub-Inspector and that later on he had known that the police had implicated the petitioner in a false case of the recovery of contraband Charas. Petitioner has also stated on oath that some 4 days prior to the occurrence he was approached by Muhammad Zaman, Sub-Inspector for leasing his premises for the office that he demanded advance and high rent on which he incurred a quarrel with the police and later on in collusion with Ch. Gul Nawaz, ex- M.P.A. He was falsely implicated in the case. He did not put the said specific allegations to Muhammad Zaman, Sub-Inspector during his cross-examination at the trial for his possible explanation and the Court would accordingly not condemn the police in the case in this behalf.
Nonetheless there were made allegations on Oath by the petitioner, also substantiated by the Councillor D.Ws and suggestion was also made to the P.Ws in cross-examination, that he was falsely implicated in the case which would place the Court on guard in evaluating the prosecution evidence furnished by police personnel vis-a-vis the charge of possession and recovery of contraband Charas from him.
7. During the examination of accused under section 342, Cr.P.C. He was not put the incriminating evidence of selling 30 grams of Charas to fake customer, Muhammad Ijaz, Constable, for Rs,40. He was also not asked about the alleged recovery of tainted currency notes of Rs,40 as sale price of 30 grams of Charas from him. He was only asked about the possession and recovery of 500 grams of Charas which he denied. He was also not asked about the Chemical Examiner's report vis-a-vis the contraband Charas during his examination under section 342, Cr.P.C.
8. To sum up the foregoing discussion it is a case in which two police Constables and on Sub- Inspector have given evidence about the recovery of contraband charas from the accused/petitioner while on the other hand accused/petitioner himSelf had given evidence on Oath denying the charge; a public witness, Rehmat Ullah cited as marginal witness to the recovery memos. Has rebutted the recovery of contraband Charas and tainted currency notes from the accused/petitioner in his presence; Nasrullah Khan a Municipal Councillor (D.W.l) has stated that accused/petitioner was called to police station on the day of occurrence at about noon time and was afterwards implicated in the false case; another Municipal Councillor (D.W.2) has also given evidence about the falsity of the charge; accused/petitioner was further not put the incriminating evidence about the charge under Article 3 of the Prohibition Order for his explanation and the said incriminating evidence cannot be used against him and last the accused/petitioner has also earned honorable acquittal in another case registered against him on the same day and time. In the circumstances there cannot be withheld the extension of benefit of doubt to the accused/petitioner and this Court would consequently accept the revision petition, set aside the orders of conviction and sentences of the lower Courts and pass orders of his acquittal.
Accused/petitioner is on bail and his bonds are accordingly discharged.
Revision .