' GUL MUHAMMAD KHAN, C.J.--- This order shall also dispose of a suo motu Notice No,15/L of 1990, for enhancement of the sentences. The appellants were convicted by Haji Muhammad Munir Badar Awan, Judicial Magistrate, Section 30, Lahore, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 34, P.P.C., vide his order dated 8th of February, 1990 and sentenced to live years' RI, each with whipping numbering thirty stripes each and a line of Rs,2,00,000 (two lacs) or to suffer four years' R.I., further in case of default in payment of fine. The learned Magistrate, did not consider the applicability of section 382-B, Cr.P.C. The appellants challenged the order of conviction and the sentences through the present appeal.
2. The occurrence took place on the 9th of April, 1987 at 3-15 p.m., near Gate No,2 of Mayo Hospital, Lahore. It was reported by Muhammad Rafique, D.S.P., P.W.4 to Noor Muhammad A.S.I., who registered the formal F.I.R. The allegations were that on a secret information Khalid-ud-Din F.I.O., P.W.3 was asked on 8th September to negotiate with the appellants for the sale of heroin. He negotiated the sale of 1/2 kilogram of white heroin for Rs,62,000 and settled with them to deliver the heroin at Gate No,2 of Mayo Hospital at 3-00 p.m., on the next day i,e, on the 9th of April, 1987 and receive the payment.
3. Consequently, a raiding party was constituted on the next day under Muhammad Rafique, D.S.P., comprising eight persons in addition to the driver of the Government vehicle. He reached there at 2-30 p.m. Near the Mayo Hospital. Khalil ud Din, F.I.O., was sent to the appointed place whereas the other members of the raiding party scattered around. At about 3-15 p.m. The appellants came and Khalid-ud-Din started talking to them. Khalil Ahmad was holding in his right hand a shopping bag with the heroin. As soon as he offered the bag to Khalid-ud-Din, the fake customer, he gave green signal. Muhammad Rafique, D.S.P., P.W.4 and his companions rushed and apprehended the appellants and recovered from the right hand of Khalil Ahmad the bag containing heroin. It weighed 1/2 kilogram. One gram sample was taken out of it and both the quantities separately sealed. The personal search of Khalil Ahmad, yielded 40 rupees in four Pakistani 10 rupees currency notes, his identity card, identity card of Telephone Department, a watch and a telephone pocket note book. Similarly, Mumtaz Hussain appellant was also searched and certain articles recovered from him.
3. The prosecution produced four witnesses in support of its case. Amanat Ali P.W.1 had received the sample parcel from P.W.4 and delivered the same to the Chemical Examiner. Abdul Hameed, S.1., P.W.2 was member of the raiding party and he also investigated this case. Khalid-ud-Din P.W.3 as stated above, was a fake customer whereas Muhammad Rafique, D.S.P., P.W.4 of the Joint Task Force, had headed the raid.
4. The appellants in their statements under section 342, Cr.P.C., denied the allegations against them and stated that they had been involved in this false case, on account of their enmity with one Shaukat, for which they supplied details. They also appeared as their own witnesses and made sworn statements under section 340(2), Cr.P.C., to support their version already given.
5. The learned counsel has taken us through the material on record and the evidence to state that the prosecution evidence is discrepant, contradictory and does not inspire confidence.
6. Muhammad Rafique Butt, D.S.P. P.W.4 had deposed that informer told him that the appellants bring heroin in Lahore to sell and that he was to meet them at 7-00 p.m. In Lakshmi Chowk.
Consequently, he sent Khalid-ud-Din, F.I.O., alongwith the informer as a fictitious customer. He negotiated with the appellants the sale of 1/2 kilogram of white heroin for a sum of Rs,62,0(X) and asked them to deliver the same to him at 3-(X) p.m., on the next day, inside Gate No,2 of Mayo Hospital and receive the amount. He then narrated the version as given in the F.I.R. About the raid and the recovery.
7. In his cross-examination he stated that he did not mention the secret information in any police record. He also did not record the departure of Khalidud-Din with the informer on the 8th of April, 1987. The informer and Khalid-udDin came back to him at about 8-00 p.m., but did not know if that fact has also been noted in any record. He also did not join any person from the public as nobody was prepared to do so. The witness himself was in civilian clothes. The informer had also gone with the raiding party to the spot.
8. The P.W.4 admitted that the site plan did not show the distance of the appellants from the places where the members of the raiding party were standing. He further admitted that the sum of Rs,62,000 was not paid to the appellants. The witness had also not written to his department to supply a sum of Rs,62,000 so as to purchase the said heroin. The proceedings of recovery etc. Were completed at the spot and not at the police station. He denied his friendship or acquaintance with one Shaukat who had taken 1,50,000 from the appellants and on his demand involved them in the false case.
9. i; halid-ud-Din P.W.3 also supported the version as given in the F.I.R. In his cross-examination he stated that he was called by the D.S.P., on the first day i,e, 8th September at about 5-30 p.m. But he did not remember if his departure, with the informer to negotiate the sale of heroin, was recorded or not. He added that the appellants met them outside the Hotel Jahangir but they had no material with them at that time. They had also not shown any sample of the heroin to be purchased. No amount was paid as advance money. The D.S.P., also did not write his statement when he came after settling the purchase. No statement of the informer was written either. According to him, the departure of the raiding party, comprising ten persons was, however, recorded but he did not know the number of the vehicle. They did not join any person from the public but the informer was with them. The D.S.P., had searched his person (of the witness) before he received the heroin. He, however, did not know if all the members of the raiding party already had gone to the police station because he left after the raid. He further stated that he did not go to the police station along with the raiding party. He also denied that the false case had been registered against the appellants because of Shaukat who was friendly with the D.S.P., P.W.4.
10. Abdul Hameed, Sub-Inspector, P.W.2, who had also taken part in the raid supported the prosecution version as given in the F.I.R. In his cross-examination he also stated that 10 persons had formed raiding party but he did not know at what time Khalid-ud-Din came to the office. He also stated that the departure of the raiding party had been recorded in the daily diary but did not remember the time. He added that no person from the public was with them. He, however, did not know whether the informer had gone with the raiding party. He also did not remember as to at what place Government vehicle was parked but knew Muhammad Abbas was its driver. He also did not know if Khalid-ud-Din was searched before he went to receive the heroin. According to him, no person from public was prepared to become a witness. The D.S.P. Had weighed the material at the spot and then all the members of the raiding party came together in one jeep. He denied that the D.S.P. Had left the spot. He also denied that khalid-ud-Din had not come back with them. He categorically denied the presence of the informer with the raiding party.
11. The learned counsel for the appellant contends that as:--
12. (i) Khalid-ud-Din paid no advance on the 8th for the bargain;
(ii) he did not see the heroin or its sample at the time of striking bargin;
(iii) the prosecution had arranged no money and Khalid-ud-Din did not carry any amount on the day of delivery;
(iv) that even before handing over the appellants Khalid-ud-Din did not pay the money;
(v) even Khalid-ud-Din did not look in the shopping bag to ensure if it had heroin or something else in it; ' the entire case of the prosecution seems fictitious.
12. The learned counsel also relied on statements of the P.Ws. To say that the omission on their part to record their movements in the daily record and even not remembering whether they made entries there makes the case of the prosecution doubtful. Abdul Hameed, S.I., stated that entries are made in the daily diary when raid is to be conducted and even the arrival of the raid party. The names of the members of the raid party are also given both at their departure and the arrival.
Khalid-ud-Din, however, did not know if it was necessary to enter in the daily diary when going on a raid. He also did not remember if his departure was given in the daily diary on 8th April when he went with informer to negotiate sale. He remembered that entry of the departure of the raid party was made in the daily diary but he did not know who made the entry and at what time? The D.S.P., P.W.4 stated that his name is not mentioned in the daily diary when he goes on raid. No entry was made about Khalid-udDin's departure with the informer. Even any entry about their return was not within his knowledge. He then volun.Eered the F.I.O., and Inspectors are not bound to record such entries as such officers and their superiors are exempted from the daily diary entries. In support of his plea he referred to the Police Rules but could not produce as he did not have them handy.
13. The learned counsel has further pointed out the following contradictions in the statements of the witnesses:--
(i) Abdul Hameed P.W.2 stated that he was unaware if the informer had accompanied the raiding party or not? Khalid-ud-Din P.W.3 stated that the informer was with the raiding party. The D.S.P.
P.W.4 deposed that informer was with them.
(ii) Abdul Hameed P.W.2 was not aware if Khalid-ud-Din was searched before he went to the appellants to receive heroin. Khalid-ud-Din stated that the D.S.P. Had searched his person.
(iii) Abdul Hameed stated that all the members of the raiding party came back in one jeep and that it is incorrect to say that either D.S.P. Had left the spot earlier or that Khalid-ud-Din had not accompanied them back. Khalid-ud-Din stated that as he had left after the raid he would not know if the entire raid party came back to the police station or not. He further clarified that he had not gone to Gowalmandi Police Station with the raiding party. The D.S.P. P.W.4 stated that excepting Khalid-ud-Din all the members of the raid party came back.
' It is to be noted that this witness (P.W.4) was sitting at a distance of five feet in the retiring room of the Magistrate with half door open when the evidence was being recorded.
14. Abdul Hameed P.W.2 stated that he did not know where the vehicle which brought the raid party was stopped. According to Khalid-ud-Din he alighted from the vehicles earlier than others but did not know the place where he got down. He also did not know the number of the vehicle. The D.S.P., P.W.4 also did not know where the vehicle was stopped. He also did not know the number of the vehicle and said that its place of parking was not shown in the site plan.
15. Abdul Hameed did not mention the delivery or safe-keeping of the parcels of the case property.
Amanat Ali P.W.1 stated that the DSP Rafique Butt gave him the parcel on 12th April, 1987 which he delivered to the Chemical Examiner. He added that the parcel when in his custody was not tampered with but he did not know as to what happened before its delivery to him. Khalid-udDin did not say anything about taking 1 gram sample from the recovered material. The D.S.P., P.W.4 stated that one gram sample was taken from the recovered material but he did not mention that he handed over the sample and the remaining material to anyone. He, however, did mention that all the proceedings of recovery were completed at the spot and nothing was done at the police station. He further stated that he sent complaint Exh.P.C. To the police station. No explanation was, however, given as to who gave the sample to Amanat Ali P.W.1 and if it was by the P.W.4 why on the 4th day after the occurrence, when all the proceedings had been completed at the spot and the complaint was sent for the registration of the case immediately after the occurrence.
16. The contentions raised by the counsel for the appellants do have merit. The manner in which the whole bargain was struck looks highly unnatural. Khalid-ud-Din had not seen the quality of heroin and the appellants never insisted for some advance. They even did not get the money before handing over the heroin. Even Khalid-ud-Din did not sec in the bag if it contained heroin or something else. The contradictions pointed out above are also of material nature. The witnesses if they were really present then would not have forgotten the details asked of the.V The learned counsel for the State supported the position taken by the prosecution on the ground of lapse of time but I do not find this a good reason.
17. The conduct of the P.Ws. About not recording information received, the departure of Khalid-ud- Din with the informer, their coming back after the settlement of deal and the stand of the D.S.P., that the F.I.O., and the Inspector Police are not supposed to record their movements on the basis of Police Rules also causes a serious doubt on this case. The relevant Police Rules may be reproduced here with advantage:-- "22.48---(1) ...............................................................
(2) The daily diary is intended to be a complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever."
(underline supplied)
22.49. The following matters shall, amongst others, be entered:--
(a) ................................................
(b) ................................................
(c) The hour of arrival and departure on duty at or from a police station of all enrolled Police Officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
(d) Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station.
In view of the above position of the rules the P.Ws. Not only violated them but gave incorrect view of the same. As they are all senior officers we do not think they did not know the rules. They seem to have given a deliberate twist to those in order to justify their conduct. It is rather unfortunate and the higher Police Officers should see to it that this disciplined force observes the rules which contain a deep wisdom and security for the public.
18. The upshot of the whole discussion is that the case of the prosecution does not inspire confidence and resultantly we allow this appeal, set aside the conviction and the sentences and acquit the appellants of the charges against them. They shall be released forthwith unless wanted in some other case. The suo motu notice is discharged.