This appeal is directed against the judgment, dated 25th May, 1991 of Additional Sessions Judge, Gujrat whereby Rohail Naseem alias Kala, appellant has been convicted under Articles 3 and 4 of the Prohibition. (Enforcement of Hadd) Order, 1979 and has been sentenced to undergo R.I. For four years with fine of Rs. Five Thousand and ten stripes on each account separately. In case of default of payment of fine, the appellant has to suffer six months' S.I. More. The sentences have been ordered to run concurrently.
2. The case or prosecution is that on 16-7-1990 Umar Hayat, S.H.O. Police Station City Jalalpur Jattan alongwith his staff was present at Chowk Mir Abdul Ghani when he received spy information that appellant is dealing in narcotics. He deputed Constable Khadim Hussain to purchase heroin from appellant. Khadim Hussain returned and produced one ---Puri--- of heroin which he purchased from accused for Rs.50. S.H:O. Umar Hayat conducted raid and apprehended appellant near Abdul Haq College, Islam Garh Road, Jalalpur Jattan and from his personal search he recovered Rs.50 being tainted money. And 13 `Purrs' of heroin. He drafted complaint (Exh.PA.) and sent to police station for registration of case. Appellant was sent up for trial after investigation and has been finally convicted.
3. The appellant pleaded not guilty to the charge. The case proceeded and prosecution examined P.W.1. Khadim Hussain, Constable, P.W.2 Mazhar Hussain, A.S.I., P.W.3 Nazar Muhammad, H.C. P.W.4 Basharat Ahmad, Constable and P.W.5 Umar Hayat, S.H.O.
4. Appellant in his statement under section 342, Cr.P.C. Denied the allegations. He examined himself on oath and produced his father, Muhammad Naseem, in his defence.
5. I have heard Mr. M.D. Tahir, counsel for the appellant and Mr. Muhammad Akhtar, Additional Advocate-General alongwith Malik Khuda Bakhsh, counsel for the State.
6. It is argued that case has been filed due to enmity as father of appellant complained against S.H.O. Umar Hayat that he was taking bribe etc. The State counsel has frankly submitted that case is not free from doubt.
7. P.W.5 Umar Hayat is complainant. He has supported recovery and stated that he deputed Khadim Hussain, who went and purchased one `Puris' of heroin. Thereafter, 13 `Purrs' of heroin were recovered from appellant. P.W.1 Khadim Hussain in his examination-in-chief has supported the case and stated that he went and purchased one `Purr' of heroin from appellant and paid Rs.50. He has stated that raid was conducted and from right side pocket of appellant 13 `Purrs' of heroin weighing 13 grams and Rs.50 tainted money, were recovered. P.W.2 Mazhar Hussain is Mashir of recovery. He has supported. P.W.3 Nazar Muhammad was Moharrir at Police Station City Jalalpur Jattan. He received sealed parcels and on 22-7-1990 handed over two sealed parcels to Basharat Ali, Constable for taking to the Office of the Chemical Examiner. P.W.4 Basharat Ahmad, took the parcels and handed over in the Office of the Chemical Examiner, Lahore. He also drafted complaint, sent by Umar Hayat.
8. Appellant in his statement under section 342, Cr.P.C. Has stated that on the day of occurrence he was going to Gujrat when four police constables including Zahid, took him to the police station and produced before S.H.O. Who told him that his father, President of City Muslim League had complained, against him. He was beaten and asked him to call his father to police station which he refused. Therefore, false case was filed. He has given same statement on oath. His father appeared as defence witness and stated that he went to M.NA. And complained against S.H.O. Due to that grievance his son was involved in a false case.
9. S.H.O. Umar Hayat, in cross-examination has admitted that dacoity case was registered against him at Police Station B-Division as a defence to heroin case at the instance of learned counsel for the accused but case was discharged. He has stated that case was registered against him by Income Tax Inspector or his brother but affidavit was sworn by learned counsel and he applied for pre-arrest bail. His application was dismissed and he slipped away from the Court. He has admitted that heroin case was also discharged on merits as both parties had given in writing that two cases should not be prosecuted. He has admitted that there was clash between two groups and after registration of the case he had gone to the spot where he was injured. He has admitted (hat procession was taken out at Gujrat but it was at the instance' of the learned defence counsel and Advocates for their personal ends arranged such procession. In his cross-examination he has stated that place of recovery is public thoroughfare and he had not taken any public witness from Abdul Ghani Chowk. P.W. Khadim Hussain in cross-examination has stated that place from where he purchased heroin is public place and people go on passing there. He has stated that `Purrs' were weighed alongwith papers in which they were wrapped. He has stated that nobody from public was associated in the raid. He has admitted that father of accused is President of Muslim League, Jalalpur Jattan City. This fact has been denied by S.H.O. Umar Hayat P.W.3 Mazhar Hussain in cross-examination has stated that they did not join any person from the locality and `Purrs' were weighed alongwith papers in which they were wrapped. From the evidence of Umar Hayat it is clear that previously he filed one heroin case against one person and in retaliation dacoity case was filed against him by Income-tax Officer and due to his involvement he did not support the case of heroin and ultimately both the cases were discharged. He has admitted that procession was taken against him but he has blamed the defence counsel of the present case. There are some contradictions in the evidence of the witnesses. The weight of 13 grams with papers is also doubtful. The S.H.O. Received information at Chowk Abdul Ghani but did not join any person from the locality in the investigation. Normally the evidence of police officer is considered to be sufficient to sustain the conviction but in the present case the circumstances are otherwise as' credentials of S.H.O. Are doubtful. The story advanced by the appellant that his father being office-bearer of the political party complained against S.H.O., is believable. Moreover, the S.H.O. Out of way has blamed the defence counsel for the prosecution etc. In order to discourage the defence to defend their clients. The other witnesses are subordinates to S.H.O. Umar Hayat and no independent witness has been examined. The case is not free from doubt. 1, therefore, allow the appeal and set aside conviction and order that appellant be released forthwith if not required in any other case.