' The present criminal appeal calls into question the legality and propriety of the judgment, dated 28-3-1990, whereby the learned Additional Sessions Judge, Sargodha, Camp at Shahpur, had convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to R.I. For two years and a fine of Rs,500 or in default thereof to further undergo R.I.
For one month, in addition to whipping of five stripes.
2. According to the complaint Exh.PA. On the basis of which F.I.R. No,330 Exh.PA./1, the complainant Muhammad Iqbal Constable P.W.3, being on duty at Wadhi Barrier on 3-11-1989 at 9-00 a.m.
Alongwith Zafar Iqbal Constable P.W.2 and Muhammad Nawaz Constable P.W. (not produced), he had called the appellant for search on suspicion. The appellant had taken to his heels, but was chased and apprehended by the complainant and his companions, and on his personal search 12 Puris of heroin were recovered from the right side pocket of his shirt. The said heroin was weighed, which had come to 12 grams, out of which 2 grams were separated for chemical analysis.
3. To prove its case, the prosecution had examined five witnesses. P W.1 Kausar Hussain Constable had received the sample of recovery in this case from Muhammad Shamoon, Muharrir Head Constable and had delivered the same in the office of Chemical Examiner on 11-11-1989. P.W.3 Muhammad Iqbal, Constable being the complainant, had reiterated the contents of the complaint.
He, however, had admitted in his cross-examination, that there were shops and hotels near the spot and at the time of recovery many people had gathered there, but none of them was associated as a witness. P.W.2 Zafar Iqbal, Constable, being the companion of the complainant, had also verified the contents of the complaint. He had also attested the recovery memo. Exh.P.B.
P.W.4 Muhammad Shamoon Khan, Moharrir Head Constable, had recorded the F.I.R. Exh.PA./1 on the basis of the complaint Exh.PA. On 3-11-1989. On the same day he had received two sealed parcels from the Investigating Officer and had handed over the parcels of sample to Kausar Hussain, Constable for onward transmission to the Office of Chemical Examiner on 11-11-1989.
4. P.W.5 Sardar Shah, Head Constable had investigated the instant case. According to him on 3-11- 1989 he was present at Bridge Kharkan, when Muhammad Iqbal Constable P.W3 had appeared there alongwith Umar Hayat accused/appellant and had recorded his statement Exh.PA. He had prepared the recovery memo. Exh.P.B. He had arrested the accused/appellant, visited the spot and had prepared the site plan Exh.P.C. The report of the Chemical Examiner Exh.P.E. Was positive. He had completed the investigation, found the appellant guilty and challaned him to the Court.
5. The prosecution, after tendering in evidence docket Exh.P.D. And report of Chemical Examiner Exh.P.E., and giving up Muhammad Mumtaz, Muhammad Nawaz and Muhammad Riaz P.Ws. Being unnecessary, had its case.
6. In his statement under section 342, Cr.P.C. The appellant had denied the allegation and had taken up the plea that the police had involved him in this case at the instance of one Mushtaq Ahmad and Muhammad Khan. He, however, did not wish to produce any evidence in his defence or to record his awn statement under the provisions of section 340(2), Cr.P.C.
7. The learned counsel for the appellant and the State were heard at length. Admittedly, the alleged recovery was effected on the spot, but no recovery memo. In respect thereof was prepared there and then. The memo. Exh.P.B. Is not a recovery memo. And is in fact the memo. Whereby the heroin allegedly recovered from the appellant/accused was taken into custody by the Investigating Officer Sardar Shah P.W.5, when it was produced before him by Muhammad Iqbal F.C. P.W.3. For reference the said memo. Exh.P.B. Is being reproduced as under:- {{URDU TEXT}} Therefore, it is hereby held that the prosecution's case suffers from the fatal error/omission of there being no recovery memo. In respect of the alleged recovery from the accused/appellant after subjecting him to personal search, as contended on behalf of the prosecution. Therefore, the conviction of the appellant under the provision of Article 4 of the Prohibition (Enforcement of Hadd)
Order 1979, in respect of owning or possessing intoxicants including heroin is not sustainable in law.
In addition thereto, the alleged search and recovery was in violation of the provisions of section 103, read with section 165(4), Cr.P.C. As no independent witnesses were associated therewith despite such persons being available at the alleged place of occurrence as admitted by P.W.3, Muhammad Iqbal, F.C. Complainant of the instant case and the only witness produced in support of the alleged recovery.
8. Therefore, pursuant to what has been stated above, the present criminal appeal is hereby allowed and the appellant is acquitted of the offence charged. The appellant is on bail, his bail bonds stand discharged accordingly.