Appellant, Muhammad Ashiq, was tried by Malik Mumtaz Ahmad, Additional Sessions Judge, Sargodha and has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and is sentenced to undergo R.I. For three years with twenty stripes and fine of Rs. Two thousand, in default to suffer R.I. For six months more. He has filed this appeal through jail.
2. Briefly the prosecution case is that on 12-10-1990 Karim Nawaz, Inspector and other narcotics staff Sargodha received secret information that accused was selling heroin near Majnoon Service Station in the street near Malbaro Hotel, Sargodha. He alongwith other staff went and apprehended appellant. From his personal search 13 grams of heroin was secured. The case was registered and on completion of investigation the challan was submitted in Court and finally appellant was convicted as stated above.
3. The charge was framed against appellant on 19-2-1991 to which he pleaded not guilty.
4. The prosecution examined 4 witnesses. P.W.1 Ijaz-ul-Haq, Moharrir/Head Constable who recorded formal F.I.R. (Exh.PA./1) and on the same day i.e. 12-10-1990 he received two sealed parcels from the Investigating Officer which he kept in Malkhana and on 13-10-1990 handed over one parcel to Muhammad Amir, for onward transmission to the Office of the Chemical Examiner. P.W.2 Muhammad Amir, Foot Constable, took parcel from Moharrir on 13-10-1990 delivered the same in the office of the Chemical Examiner on 14-10-1990. P.W.3 Karim Nawaz, Inspector/Incharge Anti- Narcotics Staff Sargodha has stated that on 12-10-1990 he alongwith Rab Nawaz, A.S.I., Muhammad Amir, Foot Constable and others was present at Old Bus Stand Sargodha where he received secret information that appellant present in Court was selling heroin in the street adjacent Malbaro Hotel Sargodha near Manjoon Service Station. They went and apprehended appellant and recovered 13 grams of heroin. Out of which two grams were taken as sample and put into sealed parcel. He prepared recovery memo. Exh. P.B. And also site plan Exh. P.C. He sent complaint to Police Station and recorded statements of witnesses. He sent parcels to Malkhana. P.W.4 Rab Nawaz, A.S.I. Has also supported the case and stated that he alongwith Investigating Officer apprehended appellant and recovered 13 grams of heroin. He attested the memo.
5. Appellant in his statement under section 342, Cr.P.C. Denied the allegations and stated that his brother was wanted by police in connection with allegation of theft by one Captain Doctor. The police in place of his brother took him and after 3/4 days challaned him in this case. He has stated that witnesses are police officials. He has given statement on oath as required under section 340(2), Cr.P.C. And stated that Muhammad Akram is his brother. One Captain doctor levelled allegation of that theft of Rs.10,000 against his brother. His brother was not available. In his place he was arrested and taken to Police Station Sargodha. He was detained for 4 days and on 5th day he was falsely implicated in this case. He has stated that he has small fruit `Rehri' vendor and never involved in any narcotics.
6. Ch. Asghar Ali, D.S.P. City Sargodha was examined as Court witness. He has stated that he did not receive any application on behalf of accused.
7. I have heard Mr. Abu-al-Fatah, counsel for the appellant and Mr. Faizur Rehman's, counsel for the State.
8. Karim Nawaz, Inspector in cross-examination has stated that place of recovery was at a distance of 150 yards from the place where he received spy information and there were shops at the Old Bus Stand where secret information was conveyed to him. He has stated that they came to the place of recovery on a private vagon and has not been able to give the name of driver of that vagon. He has stated that there were shops at the place of recovery and employees of Manjoon Service Station were working at that time. He has not summoned them to witness the recovery. He has also stated in cross that he did not feel necessary to summon any person. He has stated that he weighed the heroin alongwith plastic bag. It was suggested to him that appellant, Muhammad Ashiq, made an application against him and enquiry was held. He denied the suggestion. P.W.4 Rab Nawaz in cross-examination has stated that they had gone in a private vagon but has not been able to give the Registration Number of the vehicle or name of driver. He admitted that there were shops near the place where secret information was given and no person was joined by the Investigating Officer. He has stated that there were shops and Majnoon Service Station near the place of recovery but Investigating Officer had not summoned any person from the public to witness the recovery. He has stated that heroin was separated from the plastic bag and then weighed. P.W.2 Muhammad Amir, Foot Constable who took the parcel was also present with raiding party. He has not stated that heroin was recovered in his presence and no such question was put by the prosecution but in the cross-examination he has admitted that he was member of the raiding party. This Court in number of cases has relied on the evidence of Police Officers and according to law their evidence is as good as that-of any other public man but in this present case complainant received spy information in the heart of Divisional Headquarter, Sargodha but he did not care to take any private person to act as Mashir nor made any effort. The place from where recovery was made is also a public place but Sub-Inspector has very carelessly replied in the cross---examination that he did not feel necessary to summon any witness from public and his version gets corroboration by another witness, namely, Rab Nawaz (P.W.4) who has stated that S.H.O. Did not summon any private person to witness the recovery. In some cases we have observed that people hesitate to join investigation but in this case the position is different. He had not summoned any person from Old Bus Stand and near Majnoon Service Station to join the investigation. Muhammad Amir police man was examined but he has not stated that in his presence heroin was recovered. The S.H.O. Has stated that heroin was weighed alongwith paper and his statement has been falsified by another witness who stated that the heroin was separated and weighed. The appellant from the very start had taken the plea that his brother was suspected in theft of one Captain but his brother could not be arrested. Therefore, he was involved. There is force in this defence and- statement on oath appears to be plausible.
9. For the reasons stated above I allow the appeal and set aside the conviction and sentences.
Appellant be released forthwith if not required in, any other case.