Petitioner in tins revision petition is Muhammad Nasrullah son of Aziz Khan, against whom F.I.R.
No.162, dated 7-9-1993 was registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, at Police Station Barana, District Jhang. According to the F.I.R., on 7-9-1993 at about 11-35 a.m., the police party headed by Akbar A.I, S.H.O, of Police Station Barana was present at Bridge Canal Jaisal, when the accused appeared riding upon a motor-cycle. He was stopped and his personal search resulted in the recovery of 12 grams of heroin. Apart from this contraband narcotic, an amount of Rs.2,000, a pair of spectacles and one purse were also recovered from the possession of the accused. Two grams of heroin was separated and sent for chemical examination. The report of the Chemical Examiner, Lahore was positive to the effect that it was heroin powder. The accused was challaned and tried by the Judicial Magistrate (Section 30, Cr.P.C.), Jhang. Prosecution examined 4 witnesses in the case, namely, P.W.1, H.C. Ghulam Shabbir, who recorded the F.I.R.; P.W.2, Constable Zulfiqar who took the sample to the Chemical Examiner; P.W.3, H.C. Sultan Ahmed, a member of the police party and recovery witness; and P.W.4, S.I. Akbar A.I, who headed the police party. The accused denied the recovery. By judgment dated 2-6-1994, of the Judicial Magistrate (Section 30, Cr.P.C.) the appellant was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to R.I. For four years and to pay a fine of Rs.1,000 and in default in the payment of fine to suffer further S.I. For two months.
2. Article 27 of the Prohibition Order, 1979, provides that as appeal from an order under any provision of the 1979 Order which imposes a sentence of imprisonment for a term exceeding two year's shall lie to the Federal Shariat Court. Appeal against the said judgment of the Judicial Magistrate awarded a sentence; of 4 years' R.I. Should have been filed before this Court but the appeal was filed before the Sessions Court on behalf of the appellant, which was wrongly entertained and, after hearing, the learned Additional Sessions Judge-1, Chiniot, District Jhang, dismissed the said Appeal No.5/10 of 1994, but reduced the substantive sentence from 4 years to two years' R.I., sentence of fine was maintained but awarded the sentence of whipping of 10 stripes being. Mandatory, which had not 'teen awarded by the trial Court. The judgment of the learned Additional Sessions Judge .Is dated 13-9-1994.
3. Being aggrieved, the petitioner filed a memo. Of appeal before this Court which has been treated as a revision petition. I have heard Mr. Khadim Hussain, Advocate, for Mr. Muhammad Aslam Awan, Advocate for the petitioner and Mr. A.H. Masood, Advocate for the State.
4. The learned Additional Sessions Judge I, Chiniot had no jurisdiction to entertain the appeal filed by the appellant. The appeal filed by the appellant should have been returned to the appellant through his Advocate for being presented before this Court. The judgment dated 13-9-1994 of the learned Additional Sessions Judge-I, Chiniot, passed in Criminal Appeal No. 5/10 of 1994, is accordingly set aside as being without jurisdiction and the present revision petition is treated as a regular appeal under Article 27 of the Prohibition Order, 1979, against the judgment dated 2-6-1994 of the Judicial Magistrate (Section 30, Cr.P.C.) Jhang.
4-A. Learned counsel has taken me through the record, the exhibits and also the impugned judgment, dated 2-6-1994. According to the learned counsel for the appellant, no public witness was examined for purposes of establishing recovery and referred to the contradictions and infirmities in the evidence of the two recovery police witnesses, namely, Head Constable Sultan Ahmad and S.I. Akbar A.I. According to the learned counsel for the appellant, the prosecution case was that 12 grams of heroin was recovered from the appellant but, out of two recovery witnesses H.C. Sultan Ahmed gave a confusing statement, first stating that 12 grams of heroin was recovered from the appellant. He 'then corrected himself and stated that 40 grams of heroin was recovered from the appellant. He then again corrected himself and stated that only 12 grams of heroin was recovered. As regards the recovery of money, H.C. Sultan Ahmed stated that from the personal search of the appellant rupees one thousand nine hundred and eighty were also recovered, whereas the case of the prosecution was that Rs.2,000 had been recovered. Then according to Sultan Ahmad, the police party was moving in a Government vehicle when they stopped the appellant who was on a motor-cycle, whereas according to S.I. Akbar A.I, the police was standing on the bank of the road when the appellant appeared and stopped.
5. According to the learned counsel for the State, it was not necessary to associate public witnesses for recovery and' the discrepancies pointed out by the learned counsel for the appellant were minor and did not affect the veracity of the recovery witnesses, which recovery had been established beyond reasonable doubts.
6. In this case, besides the prosecution not examining any public witnesses, the recovery witnesses being police officials, their testimony has to be scrutinized with great care and caution. The present is a case which only involves search of the accused and recovery of the contraband narcotic.
Discrepancies regarding the recovery have to be given due weight. Scrutinizing the evidence of the two recovery witnesses, both police officials, the discrepancies pointed out by the learned counsel for the appellant throw a doubt about the red To consider 40 grams of heron as against 12 grams of heroin from the personal search of an accused as a minor discrepancy in a case which depends only on the recovery of such article, is not correct in law. Then there is no explanation as to why Head Constable Sultan Ahmad in very clear terms stated that only rupees one thousand nine hundred and eighty were recovered from the appellant as against the prosecution version that Rs.2,000 had been recovered. These discrepancies and the contradiction about the police being in a vehicle or on foot make it unsafe to record a judgment of conviction.
7. In the circumstances, this appeal is allowed and the judgment, dated 2-6-1994 of the Judicial Magistrate (Section 30, Cr.P.C.); Jhang, (F.I.R. No.162, dated 7-9-1993, of Police Station Barana) is set aside and it is directed that appellant Muhammad Nasrullah son of Aziz Khan Bhatti may be released forthwith unless required in some other case.
8. It may be observed that in' the earlier part of this judgment, the judgment, dated 13-9-1994 of the learned Additional Sessions Judge-I, Chiniot, passed in Criminal Appeal No.5/10 of 1994 has already been set aside as being without jurisdiction.