' Appellant Habib Ahmad has preferred this appeal against his conviction and sentence passed on him by Magistrate Section 30, Bahawalpur vide his judgment, dated 3-3-1996 in a case arising out of F.I.R. No,58/94 registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) at Police Station Kotwali, District Bahawalpur after receiving a Murasala from S.H.O. Through Constable Akhtar Ali (1095) which was incorporated in the said F.I.R.
2. Facts unfolded by the F.I.R. Are that A.S.-I. Muhammad Munir was keeping the appellant under observation on account of complaints from public that he was involved in the business of selling heroin. On 15-2-1994, when he was on patrolling duty alongwith Jamat Ali (H.C.159), Khalid Hussain (C-1234) and Akbar Ali (C-1098), he got spy information that appellant was selling heroin in a place where his "saw machine" was situated. When the police party reached the spot, they found appellant Habib Ahmad to be present there. It is alleged that on seeing the police party, the appellant took out a black colour shopping bag from drawers of a table and started running but was apprehended. Search of shopping bag resulted in recovery of heroin weighing 410 grams.
Sample of heroin weighing one gram was separated, two parcels were prepared and sealed, Murasala was drafted and sent to the police, station for lodging F.I.R. And memo. Of recovery was prepared at the spot which was signed by Jamat Ali and Khalid Hussain.
3. After usual investigation, the accused/appellant was challaned. He was tried on account of pleading not guilty and ultimately convicted by trial Court under Article 4 of the Prohibition Order and sentenced to suffer imprisonment for four years' R.I., stripes 5 in number alongwith fine of Rs,10,000 (in default one year --- but not clear whether R.I. Or S.I.). Hence the present appeal.
4. Record of the case reflects several important glaring aspects which go to the roots of this matter to uproot conviction and sentence awarded to the appellant.
' The first aspect relates to the dates of examining witnesses:--
(i) P.W.1 Muhammad Tufail is a formal witness whose statement was recorded on October 2, 1994.
(ii) P.W.2 Muhammad Munir, A.S.-I. Is Investigating Officer of the case whose statement was recorded on October 2, 1996.
(iii) P.W.3 Jamat Ali (H.C.159) is a recovery witness -who was examined on October 10, 1994.
(iv) P.W.4 Khalid Hussain (C-1234) is the second recovery witness whose statement was recorded on October 10, 1994.
(v) Statement of appellant under section 342, Cr.P.C. Was recorded on October 26, 1994.
5. In defence the appellant examined himself on oath under section 340(2), Cr.P.C. And produced Haji Abdul Hameed, President of Anjuman Tajran as well as one Muhammad Jamal as his defence witnesses on November 2, 1994. It appears that after completion of this evidence, the prosecution realised that they produced verbal evidence but neither the heroin nor chemical examiner's report.
Admittedly none of the P.Ws. Or the learned Magistrate was expert to claim as Chemical Examiner to say that the recovered material was nothing but heroin. Realising this mistake, the prosecution started examining other P.Ws. Once again. It is noticeable that P.W. Riaz Hussain (H.C.651) had been dropped on October 2, 1994 but was called again to depose on December 14, 1994 i,e, one month and 12 days after the defence side was closed. The witness admitted in cross-examination that parcel was sent on April 4, 1994 i,e, approximately more than 1-1/2 months after the date of seizing the said material. He also stated that the said parcel remained in his custody for two months. He disclosed that when chemical examiner's report had been received in the police station, he had already been transferred. However, it is an admitted position that neither the parcel was put before him nor he produced the chemical examiner's report.
6. Similarly P.W.6 namely Muhammad Yar was also produced on 29-1-1995 i,e, approximately 3 months after the defence closed its side.
7. I am of the view that examination of prosecution witnesses after recording of the statements of an accused under section 342, Cr.P.C. Amounts to treat that statement an empty formality. The trial Court has to put each and every question to the accused with details of those pieces of evidence which have to be made the basis of conviction. If such questions are not put then conviction may not be sustainable. In the present appeal the learned trial Court started examining certain P.Ws.
After recording the said statement under section 342, Cr.P.C. Which leaves no doubt for any sensible person that the said statement was treated only a formality. It may be said that the Court can examine certain witnesses if they do not directly affect the case of defence. But for what purpose? To fill certain lacunae? The most painful reality in this case is that P.W. Riaz Hussain had been dropped on 2-10-1994 but was called on 14-12-1994 while the statement of the accused under section 342, Cr.P.C. Had already come to end on 26-10-1994. If it is treated an irregularity it is not curable and if it is treated an illegality then the whole foundation of prosecution case is shaken.
Thus, this appeal can be allowed on this score alone.
8. With reference to section 103, Cr.P.C. Defence Advocates usually assail prosecution cases for non-prosecution of independable witnesses. This provision of law has been examined by the superior Courts in a chain of cases including the cases of Qasim and others v. The State PLD 1967 Kar. 233, Jawed Ahmad v. The State 1984 PCr.LJ 965, Muhammad and others v. The State PLD 1981 SC 635 etc. And then reached this conclusion that police official could not be discarded simply because they belong to police force and such witnesses are as good witnesses as others.
Therefore, standard of judging their evidence is the same on which the evidence of any other witness is judged. However, such observations cannot be misused by the police to ignore section 103, Cr.P.C. In each and every case in such manners that section 103, Cr.P.C. Should become redundant. In the case of this nature when the fate of an accused person hinges upon the testimony of police officials alone, it is necessary for the Court to find out whether there was any possibility of securing independent witness at the time of recovery. If there was possibility but no independent witness was picked up to act as Mushir, then Court becomes duty-bound to be very careful in weighing such evidence. In the present case the place of incident is a business centre where the appellant is carrying on his business by installing saw-machine there. This place is surrounded by several other businessmen. The President of Anjuman Tajaran, Saddar Bazar appeared as defence witness. His shop was situated just opposite to the place of incident. In his cross-examination he disclosed that he met the D.S.P. Alongwith several other persons in this connection. His statement remained unshattered during cross-examination regarding good character of the appellant.
9. The learned counsel for the State has tried his best to defend the conduct of prosecution by urging that provisions of section 103, Cr.P.C. Are not attached to a case of personal search.
Notwithstanding whether this provision can be attached to a personal search or not on account of contrary judgments on this point, the nature of present case was not a simple one. As claimed by the prosecution, the police had complaints about the present appellant regarding his business of selling heroin. The police also claimed that, as per spy information, the appellant was selling heroin in the premises where his saw-machine was installed. Hence it was not an open place or a road where personal search has to take place. On account of prior information, it was necessary for the concerned police official to comply with the provision of Article 22 of the Prohibition Order too besides compliance of section 103, Cr.P.C. Particularly when search was going to be made inside the premises to prevent the allegation of unfair dealing, The departure, in the shape of undeniable violation of the said provisions is a fatal blow to the prosecution case.
10. The result of this discussion is thus obvious. On account of unsatisfactory state of evidence and for non-observance of requirements of different provisions as pointed out in different forth going paragraphs I find myself unable to dismiss this appeal to uphold the conviction. Resultantly I set aside his conviction and sentence by holding that the prosecution had failed to prove any offence against the appellant he was charged with and I, therefore, direct that he be set at liberty if not wanted in any other case.