1. ' This appeal is filed by Raees Khan alias Bishoo son of Abbas Khan against the order of Sessions Judge, Karachi West, dated 11-2-1993 convicted him and sentenced him to suffer R.I. For a period of two years, whipping numbering 10 stripes and to pay fine of Rs,500 and in default to suffer further R.I. For a period of three months for the offence punishable under Article 4 of Prohibition of (Enforcement of Hadd) Order, 1979, in Crime No,128 of 1988 dated 2-6-1988.
2. ' Brief facts as stated are that accused Raees Khan alias Bishoo was arrested by Head Constable Muhammad Anwar on receiving a spy information at about 10-00 p.m. That a person standing near the bus stop No,7-1/2, Baldia Town in suspicious condition. On such information the Head Constable, who was patrolling the area alongwith Constables Abid Ali and Muhammad Zaman of Baldia Police Station. On receiving this information H.C. Muhammad Anwer picked two persons namely Fazal Karim and Muhammad Akram as private Mashirs and surrounded the applicant/accused and in presence of the above Mashirs took search. During the search H.C.
3. Muhammad Anwar secured a plastic packet from the right side pocket of his shirt and also secured a sum of Rs,30 from the front side pocket of the applicant/accused. The plastic packet was found to have contained 12 grams of heroin powder. On interrogation, the accused disclosed his name as Raees Khan alias Bishoo. H.C. Muhammad Anwer sealed the packet on the spot in presence of the said Mashirs under Mashirnama which was subsequently exhibited in the lower Court as Exh.6. After completing these formalities, he brought the accused and the property to the police station, where on behalf of the State he lodged the F.I.R. Which is subsequently exhibited as Exh.13-A and then handed over the accused and the property to the S.H.O. Ch. Ghulam Muhammad after completing the investigation, sent up the accused to stand his trial for an offence under Article 3/4 of the Prohibition Order. The accused Raees Khan pleaded not guilty to the charge against him.
4. ' The prosecution adduced the evidence to prove the charge against the accused examined Fazal Karim, P.W.1 (Exh.6), Muhammad Akram, P.W.2 (Exh.7), H.C. Muhammad Anwer, P.W.3 (Exh.13), and A.S.I. Muhammad Azam, P.W.4 (Exh.14).
5. ' P.W.1, Fazal Karim produced the Mashirnama of arrest and recovery as Exh.6. P.W. 2 Muhammad Akram has also supported P.W.1 in toto. P.W.3 H.C. Muhammad Anwar produced F.I.R. As Exh.13 and lastly P.W.4 A.S.I. Muhammad Azam has stated that he was posted at Police Station Baldia Town and had worked with Ch. Ghulam Muhammad, the then S.H.O., as such he is well-conversant with his handwriting. He has further stated that Ch. Ghulam Muhammad was suffering from paralysis and was unable to walk, and speak. He has further stated that he had worked for about six months with Ch. Ghulam Muhammad as such he is well-conversant with the writing and signature of Ch. Ghulam Muhammad. He has identified the signatures of the S.H.O. On Exh.6,. Mashirnama of arrest and recovery and on Exh.13, the F.I.R. He has also produced a letter (Exh.14-A) through which the heroin was sent to the Chemical Analyser. He has also produced the report of the Chemical Analyser (Exh.15-A).
6. ' The accused was examined under section 342, Cr.P.C. (Exh.17) and again under section 340, Cr.P.C.
7. (Exh.18), wherein he has denied the allegation. The accused was convicted and an appeal was preferred in this Court and my learned brother late Allandino G. Memon, as he then was, remanded the case for retrial with the observation that the learned trial Judge had committed an illegality by not showing the heroin powder to the witnesses after opening the parcel and had allowed the appeal and the conviction and sentence were set aside and the matter was remanded to the learned Sessions Judge to recall the witnesses and to show them the property in question and thereafter to decide the case in accordance with law.
8. ' In compliance of the order of the High Court, Muhammad Akram and Muhammad Anwer were recalled and property were shown to the witnesses after opening the same. The defence cross- examined further. The witness Fazal Karim became untraceable as reported by the process-server Umer Daraz (Exh.21). After fulfilling the requirements, the arguments of the D.P.P. And the counsel for the applicant were heard.
9. ' It is worthwhile to mention that the judgment which was set aside by this Court being judgment dated 10-9-1989 in which the accused was unrepresented. Firstly, he suggested some questions to the witnesses and then subsequently he engaged an Advocate and the witnesses were once again summoned and the Mashirs Fazal Karim and Muhammad Akram were cross-examined at length by the Advocate of the accused. It is an established fact that the case property is not destroyed unless the appeal period expires. As such the arguments of the learned counsel for the accused that the property was not intact is of no value. The property is always disposed of after the decision of the appeal and not during the pendency of the appeal. The property shown to the witnesses was again marked as Articles "A" and "A-1". The witnesses have fully supported the version of the prosecution and have corroborated each other. The witnesses are private persons and independent and the resident of the same locality. They have never acted as Mashir or witness in any of the case prior to this. On the other hand, the accused has stated that he was arrested by the police one day prior to the arrest shown and this incident, according to him, was witnessed by Ramzan, All Akber and Haider but none of them has come forward to support the version of the accused. The accused has admitted in his cross-examination that he has no enmity with the witnesses Fazal Karim and Muhammad Akram. He has further admitted that he does not know H.C.
10. Muhammad Anwer and have no enmity with him. Admittedly, the evidence of independent witnesses is available to connect the accused with the alleged offence. In case there would have been any enmity the question of considering false involvement with ulterior motive would have arisen. The witnesses have been cross-examined thrice, firstly by the accused and then again they were recalled for the cross-examination by the Advocate for the accused and thirdly by the retrial direction of this Court. Mashirs have identified the packet which was opened in the Court and which contained the heroin powder inside the sealed packet prepared under newspaper. Even the defence has not cross-examined these Mashirs and has not challenged the property now produced second time is not the same. The evidence of Mashir Muhammad Akram, therefore, gone unchallenged on the point of identification of heroin. According to him, the powder was of brown colour and the envelope in which this plastic packet was wrapped is the same. No question has been put to the H.C. Muhammad Anwer that the case property which has been produced again on the order of this Court is not the same. The evidence of H.C. Who identified the powder of brown colour is supported by the report of the Chemical Analyser (Exh.15-A) which shows that the plastic packet contained light brown colour heroin powder. The Court has already taken lenient view by awarding two years R.I. And whipping numbering ten stripes and a fine of Rs,500 and in default to further suffer R.I. For a period of three months, though such sort of a crime punishable under section 3/4 of the Prohibition Order which is increasing day by day needs exemplary punishment.
11. ' In view of above facts and circumstances, I find no justification to interfere with the order of the learned Sessions Judge, Karachi-West, and dismiss the appeal. The accused is on bail as such his bail bond is cancelled. The whipping shall be inflicted at a public place in consultation with the administration.