' MIR NAZAR KHAN KHOSO, C.J.--- This appeal is directed against the judgment dated 4-8-1992 passed by the learned Sessions Judge, Okara, whereby the appellants were convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer R.I. For fifteen years, thirty stripes and fine of Rs,20,000 each, in default to undergo R.I. For two years more.
2. It is case of the prosecution that on 23-8-1991 house of Waryam alias Nehala, father of appellant Zahid, was raided. Appellant Zahid, his father Waryam and mother Mst. Bakhan were arrested.
However, his brother Khursheed escaped successfully. It is further case of the prosecution that appellant Zahid lead to the recovery of 250 grams of heroin from the house. It is further case of the prosecution that appellant Zahid disclosed that he had kept heroin in the house of Shahadat, appellant. On his information house of appellant Shahadat was also raided. According to the prosecution he ran away from his house and left a bag containing one kilogram of heroin.
Inventory in respect of both the recoveries was prepared by Yar Muhammad, Inspector, in presence of witnesses. Samples were sent to the Expert, whose report is in positive. After usual investigation both the appellants were challancd to face trial for the offence. The case came for trial before the Court of the learned Sessions Judge, Okara, where charge against both the appellants was framed in the words as under:-- "I, Fayyaz Hameed Qureshi, Sessions Judge, Okara, hereby charge you the above-mentioned accused as under:-
(1) That you Zahid accused on 23-8-1991 within the area of Fatehpur Village led to the recovery of 250 grams of heroin from your house and thus you committed an offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, which is within the cognizance of this Court.
(2) That you Shahadat accused on 23-8-1991 within the area of Fatehpur Village fled away after throwing an envelope containing one kilogram of heroin seeing the police party and thus you committed an offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, which is within the cognizance of this Court.
' I hereby direct you to be tried before me in this Court for the above-stated charges."
' The appellants did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined P.W.2 Ghulam Rasool, who recorded formal F.I.R., received four sealed parcels from witness Yar Muhammad and handed over two sample parcels to witness Nazir Ahmad, Constable, for onward transmission in the office of the Chemical Examiner, P.W.2 Nazir Ahmad, Constable, he received two sealed parcels from A.S.I. Ghulam Rasool and delivered the same in the office of the Chemical Examiner, P.W.3 Yar Muhammad Dogar, Inspector, the star witness, P.W.4 Muhammad Akram, A.S.I., a member of the raiding party, P.W.5 Malik Altaf Hussain, Magistrate First Class, he accompanied the police party and P.W.6 Muhammad Sadiq, A.S.I., a formal witness.
3. In their statements recorded under section 342, Cr.P.C. The appellants denied the allegation and claimed innocence. They examined D.W.1 Mushtaq Ahmad, Vice-Chairman, Union Council, Fatehpur as defence witness. The learned trial Judge did not believe the defence version and while relying on the prosecution evidence convicted the appellants for the offence as mentioned herein above.
Hence this appeal.
4. Mr. Arif Ali Zafar Chauhan, Advocate, appeared for the appellants and Mr. Javed Aziz Sandhu, Advocate appeared for the State.
5. With the assistance of the learned counsel for the appellants we have gone through the F.I.R., recovery memos, evidence of the prosecution witnesses, statements of the appellants and the defence witness. The F.I.R. Clearly indicates that house of Waryam, father of appellant, Zahid, was raided. The purpose shown was for recovery of illicit arms. In evidence through mouths of material witnesses .Yar Muhammad Dogar, Inspector, Muhammad Akram, A.S.I. And Malik Altaf Hussain, it has come on the record that house of Waryam was raided and Khursheed, brother of appellant Zahid, escaped successfully. It is not case of the prosecution that the house belonged to appellant Zahid. He was found there. He may have been living, with his father, mother and brother. It is not the case of the prosecution that the appellant was found in physical possession of 250 grams of heroin. However, it is alleged by the prosecution that he led to the recovery of 250 grams of heroin from a box, lying in the house. The learned trial Judge had charged appellant Zahid for leading to recovery of 250 grams of heroin. Article 4 of the Order makes liable a person who owns, possesses or keeps in custody any intoxicant. Evidence produced by the prosecution regarding 250 grams of heroin does not prove either ownership, possession or keeping in his custody the intoxicant. On face of it the charge against appellant Zahid has not been proved beyond reasonable doubt. The learned State counsel candidly conceded the factual and legal position.
6. Turning to the charge against appellant Shahadat it may be observed that at the instance of appellant Zahid his house was raided. Appellant Shahadat succeeded in running away from the Vardat. The contraband material was found in his absence. In presence of a number of police officials his running away from the Vardat appears to be dubious and doubtful. His false implication cannot be ruled out. Thus, the learned State counsel candidly conceded that charge against this appellant has also not been proved beyond reasonable doubt. In the circumstances discussed herein above we are inclined to extend benefit of doubt in favour of both the appellants, accept their appeal, set aside their conviction and sentences recorded by the learned Sessions Judge, Okara, on 4-8-1992 and acquit them of the charge. They be set at liberty forthwith if not required, in any other case.