1. ' By his judgment of the 25th July, 1993, the learned Additional Sessions Judge, Kasur Camp, Pattoki, convicted Nazir Ahmad alias Haji (28 years), son of Muhammad Hayat and his cousin, Muhammad Siddique (27 years), son of Pathana, Joyias by caste, agriculturists, residents of Lambay Jagir, Tehsil Pattoki, District Kasur of the commission of offence of possessing 890 grams of heroin and sentenced each of them under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (President's Order No,4 of 1979), to ten years' rigorous imprisonment, thirty stripes of whipping and a fine of Rs,10,000 failure to pay which was to entail sufferance of additional rigorous imprisonment for two years. As the perusal of the endorsements made by the copying agency on the certified copies of the judgment and other documents enclosed with the memorandum of appeal indicates the certified copies of the judgment delivered by the learned trial Court and other documents were applied for and secured by the appellants the same day on the 13th October, 1993. The appeal against the decision of the learned trial Court was lodged in this Court on the 28th October, 1993.
2. The appeal was barred by 34 days. Alongwith the memorandum of appeal the appellants moved application for getting delay in preferring appeal condoned. It was contended that Pathana, father of Muhammad Siddique, appellant 2, and uncle of Nazir Ahmad, appellant 1, who had been pursuing the case of the appellants, had fallen ill and, therefore, could not get certified copy of the judgment in time and it was after his recovery from illness that he got the copy of the judgment on the 13th October, 1993, and after taking power of attorney from the appellants, who were confined hi jail, filed appeal on the 28th October, 1993. It may be worth while to reproduce below the contents of the appellant's application seeking condonation of delay in filing appeal--- "Respectfully sheweth:---
(1) That the petitioners throughout the trial of the case remained in jail and were not on bail when they were convicted and sentenced.
(2) That Pathana is the father of Muhammad Siddique and uncle of Nazir Ahmad, petitioners- appellants. He had been pursuing the case of the petitioners and it was he who was to file an appeal challenging the conviction and sentence of the present petitioners in this Hon'ble Court; that Pathana incidentally had fallen ill. He could not even get certified copy of the judgment and on his recovery from illness he got a copy of the judgment on 13th of this month and after that he took power of attorney from the appellants confined in jail and now this appeal is being filed with delay.
(3) That the delay thus caused is not intentional but beyond the control of the appellants- petitioners who are interned in the jail. Their case otherwise is good for acquittal. If some limitation hampers the case of the petitioners, then petitioners will not be able to get justice.
3. ' It is, therefore, respectfully prayed that the petitioners may please be given time for filing the appeal and delay if any caused, be condoned and the appeal be heard on merits."
4. ' On the 29th November, 1993, medical certificates touching Pathana's illness, issued by the Medical Officer Incharge of Civil Hospital, Bhai Pheru, dated the 30th July, 1993 and 30th September, 1993, were placed on the record by the appellants.
2. It is important to notice that the appeal was filed by the appellants after an abortive attempt had been made to secure the release of the appellants on bail by forging orders and other documents purported to have been issued by this Court. A narration of the events leading to the detection of the conspiracy for clandestinely bringing the appellants out of jail and the arrest of the culprits will not be out of place. On the eve of the 18th September, 1993, Mr. Mohsin Mehmood, Assistant Registrar of this Court, went to a photocopying shop in Allama Iqbal Town, Lahore, to get photostat copies of some of his documents made and came across over there by chance photostat copy of the last page of an order purported to have been passed by the Hon'ble Chief Justice, Mr. Justice Mir Hazar Khan Khoso and Mr. Justice Nazir Ahmad Bhatti of this Court. The portion of the order appearing at that page runs as under:--- "Criminal Appeal No, 352/L of 1993 ' Learned Judges of this Court held that the recovery must be from the accused physically, and that also in his conscious, so agreeing with the appellants' counsel, we hold that the recovery is doubtful and its benefit must go to the accused. There is also a delay of 14 days in sending samples to the Laboratory, which is unexplained, the evidence is also discrepant on vital points of time and place and is also not supported by any independent witness from public.
7. The abovementioned points needs consideration. Admit. Notice. Meanwhile the appellants' sentences are suspended pending appeal, subject to their furnishing bail bonds in the sum of Rs,50,000 (FIFTY THOUSAND ONLY) each with one surety in the like amount to the satisfaction of Assistant Commissioner, Kasur.
5. (Sd.)
6. (NAZIR AHMAD BHATTI), JUDGE.
7. (Sd.)
8. (MIR HAZAR KHAN KHOSO), CHIEF JUSTICE.
9. Lahore, the 19th September, 1993.
10. M. Faridun * "
11. ' As the signatures of the Hon'ble Judges were. Not genuine Mr. Mohsin Mehmood suspected that order had been forged. He brought 'this matter at once to the notice of the Hon'ble Chief Justice over the telephone and the Hon'ble Chief Justice directed him to show him the photostat copy of the order he had found at the photostat copying shop the next morning. The next day Mr. Mohsin Mehmood checked up with the records in the office and found that the Criminal Appeal No,352/L of 1993, in which order was said to have been passed, had not yet been filed and was not pending at that time. Having become certain of the forged nature of the order the Hon'ble Chief Justice directed Mr. Mohsin Mehmood to inform the learned District and Sessions Judge, Kasur, of the affair and ask him to apprise this Court if any documents regarding release on bail of the appellants was received in the District. The Learned District and Sessions Judge passed on the directions to the Assistant Commissioner and probably other Presiding Officers of the Courts in the District.
3. On the 26th September, 1993, a copy of the order purported to have been passed by a Division Bench of this Court comprising of Mr. Justice Nazir Ahmad Bhatti and Mr. Justice Muhammad Ilyas Khan bearing the seal of this Court and attestation of Assistant Registrar of this Court alongwith a covering letter purported to have been issued by this Court was received by post by the Assistant Commissioner, Kasur. The same day another such copy of the order alongwith security bonds in respect of the appellants were produced before the Assistant Commissioner by Zubair, Akbar and Mandha. The order directed the suspension of the sentences of the appellants and their release on furnishing security in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Kasur. The format of the covering letter was not in consonance with the one usually issued by this Court. It may also be mentioned that no Judge of this Court by the name of Muhammad Ilyas Khan exists. The correct name of the Hon'ble Judge is Chaudhry Muhammad Ilyas. The contents of the order are reproduced below:--- "JUDGMENT NAZIR AHMAD BHATTL J.---The appellants have challenged the judgment of learned Additional Sessions Judge, Kasur Camp at Pattoki, dated 25-7-1993, whereby the appellants were convicted and sentenced to undergo 10 years' R.I., 30 stripes and a fine of Rs,10,000 and in default thereof 2 years' R.I. For committing offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979.
(2) Brief facts of the case according to F.I.R. Exh.P.A./1 are that P.W.4 Rab Nawaz, S.I. S.H.O., was investigating case FIR No, 445/91 wherein accused Muhammad Abbas disclosed that he had purchased Narcotics from the appellants who sells the same in Bazar Nazir Shah, accordingly, on the same day i,e, 30-64991 a raid party was constituted comprising (1) Muhammad Mumtaz A.S.I.,
(2) Faiz Ali A.S.I., (3) Rasool Khan, (4) Muhammad Ramzan, (5). Javaid Amin, (6) Mohsin Ali and (7)
12. Saeed Ahmad Constables, which raided on the pointation of Muhammad Abbas at the cattleshed of the appellants in Street Nazir Shah. But the appellants ran away from their cot on seeing the raiding party. Heroin weighing 890 grams was taken into possession from the cot beneath the pillow alongwith 15 small empty plastic packets, the recovery memo Exh.P.B., prepared and attested by A.S.I. Mumtaz and Faiz, 12 grams of heroin was separated for examination by Chemical Examiner.
13. After receipt of positive report of Chemical Examiner Exh.P.C., the incomplete challan was submitted in the Court under section 512, Cr.P.C., but thereafter the appellants were arrested, and after formal investigation the accused were sent to face trial in the Court.
(3) The accused were formally charged under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, by the trial Court to which they pleaded not guilty, so the prosecution produced P.W.1 H.C.
14. Muhammad Tufail who recorded formal P.W.2 Javaid Amin, P.W.3 Faiz Ali, A.S.I. And P.W.4 Rab Nawaz S.H.O. Investigating Officer to prove their case, the learned D.D.A., submitted the report of Chemical Examiner Exh.P.C., in evidence and closed the prosecution case, whereafter the accused made statements under section 342, Cr.P.C., alleging that on refusal to look after the cattles of P.W.4.
15. S.H.O., this case has been fabricated against the appellants. The accused also produced Muhammad Younas as D.W.1 in defence, thereafter the impugned judgment was recorded by the learned trial Court.
(4) Learned counsel for the appellants has contended that admittedly, no recovery was made from the physical possession of the appellants and the same was not witnessed by any public or independent witness and as such it is a clear violation of section 103, Cr.P.C., he further contends that samples were sent for examination with a delay of 14 days which is unexplained, and the report of Chemical Examiner is without any signature of competent officer so is inadmissible in evidence. The evidence of P.W.3 and P.W.4 is also in discrepancy about time of raid, and place of occurrence, and has finally argued that the case of the prosecution is doubtful and benefit of doubt must go to the accused and their sentence may be suspended.
(5) Notice was given to the State on petition under section 426, Cr.P.C., for suspension of sentences, the learned State counsel has opposed this request on the ground that the case of the prosecution is fully proved against the appellants and falls under prohibitory clause and' the period prescribed for its suspension is two years, according to clause (c) of section 426, Cr.P.C., so petition may be dismissed.
(6) We have heard the learned counsel for the appellants and the State and have also gone through the record of the case with their assistance. This fact that the heroin was not recovered from the physical possession of the appellants is not disputed, so the contention of the appellants' counsel is correct, because Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, speaks ' whoever owns, possess or keeps in his custody any intoxicant shall be punished.'
16. ' This contention further finds support from 1991 PCr.LJ 1845, wherein the learned Judges of this Court held that the recovery must be from the accused physically, and that also in his conscious, so agreeing with the appellants' counsel, we hold that the recovery is doubtful and its benefit must go the accused. There is also a delay of 14 days in sending samples to the Laboratory, which is unexplained, the evidence is also discrepant on vital points of time and place and is also not supported by any independent witness from public.
(7) The abovementioned points needs consideration. Admit. Notice. Meanwhile the appellants' sentences are suspended pending appeal, subject to their furnishing bail bonds in the sum of Rs,50,000 (FIFTY ' THOUSAND ONLY) each with one surety in the like amount to the satisfaction of Assistant Commissioner, Kasur.
17. (Sd.)
18. NASIR AHMAD BHATTI JUDGE (Sd.)
19. MUHAMMAD ILYAS KHAN JUDGE Lahore, the 19th September. 1993 Faridun * "
20. ' The order as well as covering letter were forged. The Assistant Commissioner detained Zubair, Akbar and Mandha and got a case registered against them through F.I.R. No, 111 of 1993, at Police Station B Division Kasur. Zubair, Akbar and Mandha were placed under arrest. The learned District and Sessions Judge, Kasur, sent copies of the order, covering letter, first information report and other documents to this Court.
4. The excuse put forth by the appellants for getting delay in filing appeal condoned is rather a ruse manufactured by them. The record of the copying agency of the office of the learned District and Sessions Judge, Kasur, reveals that certified copy of the impugned judgment was applied for and obtained for the appellants by one Muhammad Din, son of Sugaira, caste Rajput, resident of Lambay Jagir, on the 25th July, 1993, the day the impugned judgment was delivered. Later on Faqir Hussain, son of Ibrahim, applied for and got certified copies of the judgment and other documents on the 13th October, 1993. These are the documents which have been placed on the record of appeal by the appellants. It shows that the certified copy of the judgment had been obtained on behalf of the appellants on the 25th July, 1993. The time of limitation for filing appeal started running from the 25th July, 1993. It seems that in order to cover up the time gap another set of certified copies were obtained on the 13th October, 1993. The ruse does not seem to have succeeded. The medical certificates regarding the alleged illness of Pathana were produced by the appellants as late as on the 29th November, 1993. They appear to be a managed affair. The argument of the learned \counsel for the appellants that the appellants being inside the jail were not aware of what was happening outside the jail and were not to be punished for any attempt made on their behalf to get them released on bail is too specious to be accepted for condoning delay. The abominable act of forging the order of this Court and applying most condemnable tactics for securing the illegal release of the appellants on bail cannot be taken out of consideration for dealing with the question of condoning delay in filing appeal. The appellants and their kith and kin were well-aware of the passing of the judgment and the need to file appeal in time. They worked in the wrong way to get the appellants freed from jail. No justifiable cause exists for extending the prescribed period of limitation for filing appeal. No extension in time for filing appeal is granted and the appeal is dismissed as time-barred.