' This is an appeal by Walayat Khan son of Hassan Khan, caste Moman, resident of Taous Bandi, Police Station Garhi, District Mardan, against judgment, dated the 25th November, 1992, wherein Mr. Salahuddin Khan Sumbal, Judicial Magistrate, Section 30, Attock, convicted him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to suffer rigorous imprisonment for three years, to pay a fine of Rs,2,000 or, in default, undergo further rigorous imprisonment for one month and to suffer whipping by four stripes.
2. The prosecution story is that on 17-11-1990 at 11-30 a.m. Assistant Sub-Inspector, Muhammad Mehboob alongwith some other police officials were present at the Police Post Attock Khurd, for the purpose of recovering narcotics and illicit arms when a bus came from Peshawar side. The police party developed suspicion in regard to the bus and started its checking. During the course of this exercise, heroin weighing 20 grams was recovered from the right side pocket of the shirt worn by the appellant. Out of this heroin, five grams were separated as a sample and sealed into a parcel.
The parcel was sent to the Chemical Examiner who furnished positive report, Exh.D.E. After necessary investigation, the Appellant was challaned and sent up to face trial under Articles 3 and 4 of the said Order before the learned Magistrate. The appellant pleaded not guilty to the charge framed against him.
3. The prosecution produced as many As five witnesses to establish its case. In his statement, under section 342 of the Code of Criminal Procedure, the appellant refuted what had been said against him. He appeared as his own witness and said that the heroin was recovered from a bundle of sugarcane loaded on the bus but it was planted on him by the police officials. Relying on the evidence of the prosecution, the learned Magistrate convicted the appellant under Article 4 of the said Order and sentenced him as stated earlier.
4. It was contended by the learned counsel for the appellant that there were several contradictions and other discrepancies in the prosecution evidence which justified the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and, therefore, the appellant was entitled to be acquitted. The defects and shortcomings pointed out by the learned counsel are enumerated below:--
(i) The prosecution story is that the heroin in question was recovered from the pocket of the appellant by Foot Constable Tanveer Asghar Shah, but he has not been examined by the prosecution and no good reason has been given for this omission.
(ii) According to Head Constable Muhammad Bashir (P.W.1) the recovery was made by the said Tanveer Asghar Shah, but in the words of Assistant Sub-Inspector Muhammad Mahboob (P.W.5) this task was performed by him (Muhammad Mahboob).
(iii) It was stated by Head Constable Muhammad Bashir (P.W.1) that the heroin was weighed with measures of ten grams each but he was contradicted by Assistant Sub-Inspector Muhammad Mahboob (P.W.5) who came out with the statement that it was weighed with a measure of twenty grams.
(iv) It was stated by Assistant Sub-Inspector Muhammad Farooq (P.W.3) that on 17th November, 1990 the said parcel containing the sample heroin was deposited by him in the Malkhana and then on 20th November, 1990 it was taken away from the Malkhana by Constable Amir Alam and delivered to the Chemical Examiner for scrutiny. He was contradicted by Constable Amir Alam when it was deposed by him as P.W.4' that he delivered the parcel to the Chemical Exmainer on 19th of November, 1990. The report of the Chemical Examiner is Exh.P.E. This shows that the parcel was dispatched on 18th November, 1990 and delivered in his office on 19th November, 1990.
5. Plea of the learned counsel with regard to the aforesaid infirmities is supported by the record.
Foot Constable Tanveer Asghar Shah, who is a police officials, was a material witness in this case inasmuch as he was alleged to have searched the person of the appellant and made recovery of the heroin in question but he was not examined by the prosecution. No reason whatsoever is forthcoming for this omission of the prosecution. Other contradictions pointed out by the learned counsel have also not been explained by learned counsel for the State. Confusion created by the prosecution evidence with regard to dates on which parcel containing the sample of the heroin was taken to the Chemical Examiner has created serious dbubt with regard to the manner in which the said parcel was dealt with. Similar confusion was noticed in the cases reported as Mst. Sultan Zari v. The State 1986 P Cr. L J (FSC) 1723, Mst. Fehmida Begum and another v. The State 1986 P Cr. L J
(FSC) 1728, Muhammad Saleem alias Cheema v. The State 1991 P Cr. L J (FCS) Note 40 and Gulab v.
The State 1992 SCMR 1502 at 1505, and the benefit thereof was given to the appellants by ordering their acquittal. It is also noteworthy that no member from the general public was associated with the recovery proceedings although there were several passengers in the aforesaid bus.
6. It appears that either the prosecution story is incorrect or the case has been handled in such a clumsy manner that it is not possible to hold that the prosecution has established the guilt of the appellant beyond reasonable doubt. Be that as it may, in the circumstances noted above, I cannot help giving benefit of doubt to the appellant. By so doing, therefore, I set aside the conviction of the appellant and the sentences imposed on him, and order his acquittal. He shall be set at liberty forthwith if not required in any other case.
7. Criminal Miscellaneous Application No,193/I of 1992 which is for grant of bail, does not call for any order as the appellant has been acquitted. With this observation, the said application is disposed of.