' This judgment is intended to dispose of two Criminal Appeals Nos.10 and 11 of 1990 filed by Farooq- ur-Rehman accused-appellant challenging his conviction and sentences under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order). The accused-appellant was convicted under Article 4 of the Prohibition Order for possessing Charas and sentenced to one year rigorous imprisonment, whipping numbering 5 stripes and a fine of Rs.5,000 in default whereof to undergo further R.I. For two months, by the learned Sessions Judge, D.I. Khan vide judgment dated 19-6-1990. By judgment of the same date accused-appellant was convicted under Article 4 for possessing heroin and sentenced to two years' R.I. Whipping numbering 5 stripes and a fine of Rs.5,000 in default whereof to undergo further two months' rigorous imprisonment.
2. The prosecution story is that on 12-5-1987 Nazir Shah, S.H.O. (P.W.3) who was on Gusht alongwith the police party saw the accused-appellant in suspicious condition at Butt,Service Station, D.I. Khan and from his personal search recovered 1200 grams `Charas' wrapped in a cloth bag and 25 grams of heroin from the side pocket of his shirt. He drafted Murasila Exh.PA./1 and sent the same to the police station for registration of the case. The Charas was taken into possession vide memo.
Exh.P.B. On the basis of Murasila Exh.PA./1, case under Article 3/4 of the Prohibition Order was registered at Police Station Cantt. Vide F.I.R. No.150, dated 12-5-1987. Regarding recovery of 25 grams of heroin a separate Murasila Exh.PA./1 was prepared which formed the basis for the registration of a separate case vide F.I.R. No.151, dated 12-5-1987. Four grams of Charas was separated and sealed into parcel and was sent to Chemical Examiner who gave positive opinion Exh.P.D. The heroin weighing 25 grams was recovered from the side pocket of the shirt of the accused-appellant who was then in custody in the case registered vide F.I.R. No.150 and the sample of one gram was sent to the Chemical Examiner whose positive opinion is Exh.P.O. After investigation of the case, the accused-appellant was challaned to the Court.
3. At the trial the accused-appellant denied the charge. He faced two separate trials in the Court of learned Sessions Judge, D.I. Khan. The prosecution produced the same set of witnesses in the two cases. Muhammad Zali (P.W.1) registered the cases, Amanullah Khan (P.W.2) is one of the two marginal witnesses to the recovery memo. Exh.P.B. The other Mir Aslam was abandoned. Nazir Shah, S.H.O. (P.W.3) recovered the Charas and heroin from the possession of the accused-appellant, arrested him, conducted the investigation and submitted the challan to the Court. Amanullah Khan (P.W.2) in his cross-examination deposed that 5/6 constables accompanying the Investigating Officer made personal search of the accused-appellant and Mir Aslam (abandoned) recovered Charas from the accused in his presence. He admitted that he being illiterate contents of memo.
Exh.P.B. Were not known to him. He denied that he was not present at the time of recovery and admitted that many shopkeepers gathered at the spot. He denied the suggestion that many persons were sitting at the service station, and that Charas was lying behind the wall of service station. He also denied the suggestion that an envelop containing heroin was recovered from a hush and accused-appellant who could not furnish satisfactory reply of his presence at service station was charged on suspicion. Nazir Shah, S.H.O. (P.W.) when cross-examined stated that it was 12-00 noon when accused-appellant met the police party. He admitted that search of the accused was made by him. He futher admitted that neither the Murasila, nor the site plan Exh.P.C. Contained the names of the P.Ws. He spent 20 minutes at the spot and then took the accused to the police station. The Murasila with respect to recovery of Charas did not find mention of recovery of heroin.
He admitted that shops around the place were open. No person from public as witness to the recovery was made as they were not willing to become witnesses. The witness made no entry in the police diary that no one from the public was prepared to witness the recovery memo. He did not send the sample to the Chemical Examiner himself but handed over the specimen to Moharrir, who was not cited as witness in the case. The witness further admitted that specimens were taken on 12-5-1987 and were received and examined by the Chemical Examiner on 12-6-1987. The witness did not know where for one month specimens were kept. He admitted that parcel containing narcotics was neither produced before any Magistrate nor it was inspected by any Prohibition Officer. The search for heroin was effected after 20 minutes of drafting of Murasila in Charas case.
The heroin case was registered vide F.I.R. No.151 at 12-50 hours and time given in Murasila was 12.15 hours. The witness denied the suggestion that on spy information cloth bag of Charas was recovered from behind the wall of service station and that since accused-appellant could not give satisfactory reply of his presence at the service station, he was suspected of possessing Charas and heroin. He further denied the suggestion that Murasila and memo. In heroin case was prepared at police station. After the close of prosecution evidence, accused was examined under section 342, Cr.P.C. Who denied the charge and stated that nothing was recovered from him. His detailed statement reads as under:-- "I am innocent and have been charged on mere suspicion. In fact nothing was recovered from my possession. On the day of occurrence, the police party took some bag and a plastic envelop from behind the wall of service station. They suspected all the persons present on service station to have thrown the same. Since I could not give any satisfactory account of my presence on service station to the satisfaction of the Investigating Officer hence I was brought to the police station and later on was arrested in the present case."
' The accused-appellant also deposed on oath under section 340(2), Cr.P.C. The gist being that Charas was recovered from behind the wall of service station by the police party who had come there in search of one Abuzar Qureshi. He, and Zuliliqar Shah were taken to police station for further enquiry and after about 30 minutes a constable who brought a plastic envelop told that it was lying in the bushes behind the service station. At evening time the accused was told that he had been arrested in narcotics case. The accused-appellant denied that narcotics were recovered from his possession. The defence witness Muhammad Afzal repeated the same story as given by the accused.
' The trial Judge accepted the prosecution version regarding the recovery of Charas and heroin from the possession of the accused as in his opinion nothing favourable in the cross-examination could be extracted from the P.Ws. And that police officials were as good witnesses as any other witness unless it was shown that they misconducted the investigation. Regarding noncompliance of the provisions of section 103, Cr.P.C. It is opined that same is not applicable in personal search.
Reliance was placed on 1989 P Cr. L J 1672. The defence evidence was not believed as it could not discredit the authenticity of the evidence led by the prosecution. The trial Judge, therefore, vide two identical judgments of the same date convicted and sentenced the accused-appellant as above.
Benefit of section 382-B, Cr.P.C. Was extended to the accused-appellant and it was ordered that whipping punishment be executed at a public place.
4. The accused-appellant has challenged his conviction and sentence by filing these two appeals under section 410, Cr.P.C. On the common grounds that the charge was not substantiated by any independent evidence and that the trial Court had unduly stretched the case in favour of the prosecution despite the fact that evidence did not merit any credence.
5. Mr. Abdul Latif Khan, Advocate for the accused-appellant contended that separate conviction for an offence punishable under section 4 of the Prohibition Order was illegal, the charge was not proved by independent evidence, the recovery was not witnessed by any person from public and defence version was unjustifiably ignored. He further contended that delay of one month in sending the contraband to the Chemical Examiner for expert opinion reacted on the prosecution case and accused-appellant was entitled to the benefit of doubt. In support of the aforesaid contentions following case-law was referred:---
(1) 1985 PCr.LJ 241, (2) 1986 PCr.LJ 1723, (3) 1989 PCr.LJ 1120, (4) 1989 PCr.LJ 869.
' Muhammad Salim Khan Gandapur, Advocate who appeared for the State supported the impugned judgment and argued that police officials are as good witnesses as any other person and that trial Court rightly believed their testimony proving the recovery of Charas and heroin from the possession of the accused-appellant. In support of the view that public witnesses are not required to witness the recovery memo. And the Chemical Examiner's report proves that recovered articles were Charas and heroin, reliance was placed on the following reported cases:--
(1) PLD 1991 FSC 1, (2) 1990 PCr.LJ 1886.
6. I have heard the learned counsel for the parties and perused the evidence carefully. The case- law referred also perused.
7. The first and foremost issue requiring our consideration is that of registration of two cases against the accused-appellant. The prosecution case is that Charas and heroin was recovered from the accused appellant at service station on the same day and time. If it was so why then two separate cases were registered. There being no satisfactory answer it would lend support to the defence version that recovery of heroin was not made at the spot. The F.I.R. No 150 was registered at 12-50 hours on 12-5-1987 on the basis of Murasila Exh.PA./1. Time of occurrence is shown at 12-00 hours. The F.I.R. No.51 was registered at 13-10 hours on the basis of separate Murasila Exh.P.A/1. The time of occurrence in the F.I.R. Is shown at 12-15 hours. The Investigating Officer has admitted in his cross-examination that he took 20 minutes to complete the investigation. This would mean that up to 12-20 he was at the spot where he could easily mention the recovery of heroin in the first Murasila. In the facts and circumstances of the case there was no need for separate Murasilas and registration of two separate cases for the offence punishable under Article 3/4 of the Prohibition Order. The recovery of contrabands in this state of affairs becomes doubtful requiring strict compliance of the provision of section 103 of Code of Criminal Procedure. In the case of Abdul Malik v. The State 1989 PCr.LJ 1120 the learned Judge while dealing with the provision of section 103 vis-a- vis personal search observed that though the provisions are not attracted in case of personal search, but Courts should be vigilant to see that Mashirs are respectable persons and that liberty of person should be judiciously guarded. The facts of this reported case were almost similar as in the present case. The accused on suspicion was searched and from his personal search, heroin was recovered, and although witnesses of the recovery memo. Were from public, one of them who appeared as a witness at the trial was not believed as he was not a respectable person of the locality. The accused-appellant was given benefit of doubt and was acquitted. In the case of Zeb- ulHaram v. The State PLD 1991 FSC 1 cited by the learned counsel for the State, the recovery of narcotics was effected from the accused travelling in a public van. It was in that situation that honourable Judges held that members of public decline to become witnesses. There is no cavil to the proposition, that public witnesses do not come forward to witness the recovery of narcotics but this cannot be accepted as hard and fast rule. Every case is adjudged on the basis of its facts and circumstances. Search is to be witnessed by two or more respectable persons of the locality, as provided in subsection (1) of section 103. In the case of Muhammad Khan v. Dost Muhammad PLD 1975 SC 607 while dealing with the provision of section 103, Cr.P.C. It is observed as under:- "However, that may be, the requirement of section 103 is not absolute in the sense that failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore, Courts will ordinarily insist on a strict compliance with this requirement and view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court."
8. The Federal Shariat Court accepted the rule as laid down by the Supreme Court and relied on the same in the case of Muhammad Shafi v. The State reported in PLD 1987 SC 16. In recently reported case of Zardad v. The State 1991 SC MR 458 also it is held that requirements of section 103 are not absolute and that its application depends upon the facts of each case, and that if testimony of police officer is intrinsically sound without there being anything in the circumstances to prove doubt then such testimony is sufficient for the purpose of establishing the facts. Now let us see whether the facts and circumstances of the instant case did require the compliance of the provisions of section 103. It is in the evidence that accused-appellant was suspected by the police as having possessed the narcotics at service station on Bannu - D.I. Khan Road. It was a place surrounded by shops which were open at that time. None of the persons from public were either asked to witness the recovery memo. Nor any explanation for non-compliance of the provision of section 103, Cr.P.C. Has been given. In the facts and circumstances of the case, when two recovery memos. Were prepared and two F.I.Rs. Were registered and when it is alleged by the defence that recoveries of narcotics have been planted, the compliance of the provision of section 103, Cr.P.C.
Were all the more imperative Then we find that the evidence led to prove the recovery is contradictory. Amanullah Khan Constable (P.W.2) deposed that Charas and heroin was recovered from the personal search of the accused at morning time and was effected by all the 5/6 constables. Nazif Shah, S.H.O. (P.W.3) stated that he alone searched the accused and recovered 1200 grams of Charas contained in a cloth bag and 25 grams of heroin from the pocket of the shirt of the accused, at 12-00 hours. Neither the bag nor shirt were taken into possession. No satisfactory explanation has come forth to show as to why two cases were registered when the accused- appellant was found to have committed the offence punishable under Article 3/4 of the Prohibition Order at one and the same Place. Therefore, in the facts and circumstances of the case the testimony of police officials loses credibility.
' There has also been a delay of one month in sending the contraband to the Chemical Examiner.
The contrabands were allegedly recovered on 12-5-1987 which were received by the Chemical Examiner on 12-6-1987. Nazif Shah, S.H.O. (P.W.3) did not know where for one month the specimen were kept. The Moharrir to whom the specimens were given was not produced as witness in the case. I am of the view that no importance can be given to this report. Reliance is placed on Federal Shariat Court decision reported in 1986 P Cr. L J 1723 wherein it is held that:-- "Where custody of parcels during said period is not known and record of trial Court is silent on the point then no importance could be attached to Chemical Examiner's report in circumstances."
9. As a result of discussion made above I am of the view that the charge against the accused- appellant of committing offence punishable under Article 3/4 of the Prohibition Order was not proved beyond reasonable doubt. I am, therefore, constrained to accept these appeals, set aside the conviction and sentence passed on the accused-appellant and acquit him. He is to be released forthwith if not required in any other case. Case property be destroyed, within a month and compliance reported to this Court.