This appeal has been filed by appellant Saifullah alias Bhola son of Barkat A.I Tarkhan against the judgment dated 28-6-1994 passed by the Judicial Magistrate (Section 30, Cr.P.C.) Sialkot, whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (FIR No. 52/93, dated 15-2-1993 of P.S. Saddar Sialkot) and sentenced to undergo seven years'
R.I., ten stripes and to pay a sum of Rs.20,000 as fine or, in default of payment, to undergo further R.I.
For one year. I have heard the arguments of Mr. Shaikh Abdul Aziz, learned counsel for the appellant, and Mr. Waheed Anwar, who represented the State. With their assistance, I have gone through the record including the evidence, exhibits and the impugned judgment dated 28-6-1994.
2. According to the prosecution, on 15-2-1993, complainant Excise Inspector Sarfrazul Haq received information from an informer that accused Saifullah alias Bhola was transporting a huge quantity of narcotics out of the city and that he would get down in Akbarabad Chowk. On such information, the complainant arranged a raiding party with the help of police and reached Chowk Akbarabad and made a `Nakabandi'. According to the complainant, after some time, a pick-up came towards the said Chowk from which a person got down in a suspicious manner and moved to Aimnabad Road and, on pointation of the informer, he was apprehended with the help of the raiding party.
The person gave his name as Saifullah alias Bhola son of Barkat A.I Tarkhan. According to the complainant, the accused had a black-coloured shopping bag in his right hand which was checked and heroin was recovered from the bag and from a plastic packet Charas was also recovered. According to the prosecution, the heroin powder was weighed and found to be 4,552 grams and weight of Charas came to 1 Kg. And 12 grams of heroin and 10 grams of Charas were separated and placed in sealed parcels for chemical examination and the remaining quantities of the narcotics were sealed in separate parcels. The report of the Chemical Examiner was positive i.e. One sample was heroin powder and the other sample was Charas. The accused was arrested, investigation completed and was then challaned under Article 4 of the Prohibition Order, 1979.
3. The incident is alleged to have taken place on 15-2-1993 at 4-00 p.m. During the day. The prosecution examined five witnesses. P.W. 1 Head Constable Muhammad Yaqoob is a recovery witness and member of the raiding party; R.W. 2 Excise Inspector Sarfrazul Haq in the complainant head of the raiding party and who searched the accused; P.W. 3 Constable Muhammad Irfan had taken the parcels to the Chemical Examiner, P.W.4. A.S.I., Muhammad Riaz is the Investigating Officer and P.W. 5 A.S.I. Inayat Hussain formally recorded the F.I.R. The appellant denied the recovery and pleaded false implication due to political enmity. Two defence witnesses were also examined, namely D.W. 1 Muhammad Ashraf and D.W. 2 Maqsood Alain, who stated that the accused was a person of good character; the defence witnesses personally knew him as a neighbour and that accused belongs to one political party whereas the Ex-Vice-Chairman of the District Council belongs to another political party, who got him falsely implicated. In their evidence, they stated that the police had arrested the accused at night from his house and nothing was recovered from him.
4. According to learned counsel for the appellant, the recovery is alleged to have taken place during the day at about 4-00 p.m. In thickly populated area of the city, but no public witness was associated in the recovery proceedings; the appellant was falsely implicated on account of political enmity; there are discrepancies of material nature in the evidence given by the two prosecution witnesses and as such the prosecution had not been able to establish its case against the appellant. On the other hand, according to learned counsel appearing for the State, it is not necessary that, in such cases, a public witness must be associated as a recovery `Mashir' and police officers are competent witnesses. He added that on the basis of the evidence of police witnesses relating to recovery of contraband goods, an accused can be lawfully convicted of the charge under Article 4 of the Prohibition Order, 1979, if no case is made out to doubt the veracity of the police witnesses and that, in the present case, except for making general attacks on the basis of vague political enmity, an unsuccessful attempt was made to challenge the credence of the two witnesses which attempt miserably failed. Both the learned counsel cited case-law on the question of association of public witnesses in recovery cases.
5. On the question of recovery and the applicability of section 103, Cr.P.C., the recent judgment of the Supreme Court has been given in the case, of Mirza Shah v. State reported in 1992 SCM R 1475. In this decision, while considering the provisions of section 165(4), Cr.P.C. Read with section 103, Cr.P.C., it has been held that subsection (4) of section 165 specifically makes sections 102 and 103, Cr.P.C.
Applicable to searches made by the police officer during investigation so far they can be applied in the facts and circumstances of the case. It has further been held in the said judgment that, during investigation, the applicability of section 103, Cr.P.C. Is not restricted to any locality, house or fixed place of abode and, even in cases where vehicles or buses are intercepted in such circumstances where there is every possibility of compliance with section 103, Investigating Officer should give preference to this procedure. It was added, however, by the Supreme Court that if the Investigating Officer was unable to comply with the provisions of section 103, he must explain the reasons for non-compliance.
6. In the present case, the Excise and Police officials had prior and specific information about the contraband goods being brought by the accused and, if that was so, arrangements should have been made for compliance of section 103, Cr.P.C. Which, admittedly, was not done. There is also no explanation on record for non-compliance except a general statement by the two recovery witnesses that the people were not ready to get associated in the recovery proceedings. By making such general statement, the police of6cdrs cannot discharge their legal responsibility of compliance of the provisions of section 103, Cr.P.C.
7. In any case, recovery witnesses being only police and excise officials, their evidence had t4 be scrutinised with great care and caution. Discrepancies and contradictions in their evidence have to be given due weight. In this case, a major discrepancy relates to the colour of the powder recovered. According to complainant Excise Inspector, the colour of the heroin alleged to have been recovered from the appellant was brown whereas according to A.S.I. Muhammad Riaz, Investigating Officer, the colour was grey and it was not brown. This cannot be deemed to be a minor discrepancy. Recovery of heroin powder from an accused is a very serious offence and the colour of the powder recovered is a matter of importance and if there is a clear contradiction in the evidence*of two witnesses of the prosecution relating to the colour of the powder recovered, such contradiction should not be lightly brushed aside. Then there are contradictions about the weights and measures used during tire recovery of the contraband goods and where proceedings were finalized. It is also not clear as to how the sample of 12 grams of heroin was separated from the bulk of heroin recovered and how the sample of Charas was weighed. All these contradictions and deficiencies make the recovery doubtful.
8. On a perusal of the impugned judgment dated 28-6-1994 of Judicial Magistrate (Section 30, Cr.P.C.) Sialkot, it has been noted that the trial Court has not given any reasons for conviction. He only referred to the facts and then gave in some detail the contentions raised by the defence counsel and the prosecutor, but then the entire basis of conviction is given by the Magistrate in the following words:-- "The points raised by the prosecutor are forceful and governed by the record. The offence under Article 4 of the Prohibition Ordinance is proved beyond any shadow of doubt against the accused."
The above two sentences cannot be termed as a judicial decision under the law required to be rendered by the Magistrate.
9. As a result, this appeal is allowed, judgment dated 28-6-1994, passed by Judicial Magistrate, Sialkot (in Crime No. 52/93, dated 15-2-1993 of P.S. Saddar, Sialkot) is set aside and it is directed that appellant Saifullah alias Bhola son of Barkat A.I Tarkhan be released forthwith if not required in any other case.