Aziz Ahmad son of Habib Ullah has filed this appeal under Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979, against the judgment dated 10-10-1994 of the Judicial Magistrate (section 30, Cr.P.C.) Lahore, whereby he has been convicted under Article 4 of the Prohibition Order, 1979, and sentenced to six years' R.I. With ten stripes and also fined Rs. 10,000 and in default in the payment of fine to undergo S.1 for six months. He was, however, acquitted of the charge under Article 3 of the Prohibition Order, 1979. Benefit of section 382-B, Cr.P.C. Has been extended to the appellant.
2. I have heard the arguments of Pir SA. Rashid learned counsel for the appellant, and Mr. Muhammad Anwar Dholan, learned counsel representing the State. With the assistance of the learned counsel I have gone through the record.
3. Inspector Muhammad Umar Virk, S.H.O. Mughalpura, Police Station is the complainant in this case. According to his complaint dated 27-1-1993, on receipt of information from A.S.P. Mughalpura, he conducted a raid in the company of 12 police officials including one S.I., four A.S.Is. And constables and one private person Muhammad Moeen (Mashir) and made `Nakabandi of Nehar bridge Mughalpura at about 1-00 p.m. When two persons riding a motorcycle came there from Dharampura side. According to the complaint, Agha Arshad was sitting on the back seat of the motorcycle and appellant Aziz Ahmad was driving it. The raiding party stopped them on which Agha Arshad succeeded in running away by throwing a plastic envelope of black colour containing one packet of heroin containing one Kilogram. Appellant was apprehended and from his personal search one Packet containing one Kilogram of heroin was recovered from the right side of his Shalwar wrapped along his belly. The complainant separated 50 grams each from the two packets and sealed them separately, F.I.R. No. 49/93 was recorded under Articles 3 and 4 of the Prohibition Order, 1979, against the two accused. After investigation, accused were challaned and Agha Arshad was shown as an absconder. The case against the appellant proceeded in which five witnesses were examined including P. W.5 Muhammad Moeen, a private person, as a recovery `Mashir'. P. W.3 is Inspector Muhammad Umar Virk, complainant, Investigating Officer and who had also searched the appellant and recovered the contraband goods. The other recovery `Mashir' is P.
W.4 Azhar Saqib. P. W.1 A.S.I. Ijaz Ahmad and P. W 2 Head Constable Umar Draz were examined as eye-witnesses, being members of the raiding party. Appellant gave his statement under section 342, Cr.P.C. Denying the recovery and his arrest on 27-1-1993. He also gave his statement on oath under section 340(2), Cr.P.C., A.S.I. Muhammad Ahmad was examined as a defence witness who produced copies of F.I.R. In nine cases in which Muhammad Moeen had appeared as a recovery `Mashir'. Muhammad Moeen in his evidence stated that he had been giving evidence as a recovery `mashir' for the police since January, 1993 and had appeared in more than 20 cases as a `mashir'.
He has shown himself as a resident of Ichhra. According to learned counsel for the appellant, the place of the incident is several miles away from the place where this private witness resides.
4. Learned counsel for the appellant referred to certain minor contradictions in the evidence given by the police witnesses. Learned counsel for the State did not controvert that there were some contradictions, but according to him these were very minor and did not affect the testimony of the police witnesses regarding the recovery of heroin. The Chemical Examiner's report is positive as regards the samples sent to him for chemical examination. The main argument of learned counsel for the appellant, Pir S. A. Rashid, has been that there is violation of the mandatory provisions of section 165(4) read with section 103, Cr.P.C. According to learned counsel, the evidence establishes that information had been received one and a half hour earlier that the two accused would be coming with contraband goods and the place of occurrence being located in a thickly populated area of Lahore, with ample time available, arrangement should have been made for two respectable witnesses of the locality to comply with the provisions of section 103, Cr.P.C. Read with section 165(4), Cr.P.C. In the present case, no effort was made by the police to comply with the provisions of section 165(4) read with section 103, Cr.P.C., which are mandatory in nature. If for any reason it was not possible to comply with such provisions, it was obligatory on the part of the police to give an explanation for non-compliance. Admittedly, no such explanation has been given. It is a case where spy information had been received one and a half hour prior to the raid. Instead of complying with the provisions of section 103; Cr.P.C. The police took alongwith them Muhammad Moeen, a stock witness of the police who had appeared in more than 30 cases for the police and who resided several miles away from the place of occurrence. According to Muhammad Moeen, he had met the police party by chance at the bridge where the accused had been apprehended and having known Inspector Muhammad Umar Virk, he remained with the police party and then became a recovery `mashir', whereas according to Inspector Muhammad Umar Virk, Moeen was available at the police station and had accompanied the police party. The evidence as to recovery given by Muhammad Moeen, in the circumstances, could not be relied upon.
5. Reference may be made to a recent decision of the Supreme Court of Pakistan in the case of Mirza Shah v. The State reported in 1992 SCM R 1475 for the proposition that during investigation, provisions of section 103, Cr.P.C. Should be complied with as far as it is possible in view of section 165(4), Cr.P.C. It was held that these provisions were mandatory. It was further observed that, in case it was not possible to comply with such provisions, an explanation should be given by the police to justify non-compliance of such provisions. As observed, no explanation has been given.
Reference may also be made to another recent decision of the Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Ghulab v. The State 1992 SCM R 1502(A) which was a case of recovery of ten Kilograms of heroin. Though by the said judgment the conviction of, the accused was set aside or several grounds, yet the following observation being relevant is being reproduced:--- "We have also noted with concern that in this case raid was conducted on information which had been received much earlier, but no effort was made to associate any person from the public. It was not a case o raid in a Jungle or on a highway, but in a big city."
6. It may be added that instead of making efforts to get at least two witnesses from the public for being associated in the recovery, according to Muhammad Moeen:-
7. In the circumstances, the conviction of the appellant could not be based on the evidence of the police witnesses. As a result, this appeal is allowed, judgment dated 10-10-1994 .Of the Judicial Magistrate (Section 30, Cr.P.C.) Lahore, is set aside and it is directed that appellant Aziz Ahmad son of Habib Ullah Pathan be released forthwith if not required in any other case.