' The prosecution story as reflected from the F.I.R. (Exh.P.A.), in brief, is that on 28-3-1993, A.S.-I.
Badam Gul (P.W.3) was on "Gasht" of his Illaqa along with the police party consisting of Foot Constable Alam Zeb (P.W.1) and Foot Constable Khan Wali (not produced). When the police party reached the General Bus Stand, Peshawar, they saw appellant Ishtiaq Ahmed son of Hakim Nisar Ahmed Nisar, resident of Murid, Tehsil and District Chakwal (Punjab) standing there in suspicious condition. The police party, therefore, checked him. The personal search of the appellant led to the recovery of a plastic bag, containing contraband heroin powder weighing 15 grams. Since the appellant could not show that he was in lawful possession of the same therefore, he was arrested.
The heroin powder in question was taken into his possession by A.S.-I. Badam Gul (P.W.3) vide recovery memo. (Exh.P.C.) in the presence of its marginal witnesses i,e,, F.C. Alam Zeb (P.W.1) and F.C. Wali Khan (not produced). One gram of heroin powder was separated and sent to F.S.L. For Chemical Examination (Report Exh.P.2.) whereas the remaining 14 grams of heroin powder (Exh.P.1) was sealed in an envelope. Thereafter the A.S.-I. (P.W.3) scribed the Murasila (Exh.P.A./1) and sent the same to Police Station Gulbahar where on its basis F.I.R. No,752 (Exh.P.A.) was registered under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979 against the appellant.
2. After the completion of the usual police investigation charge-sheet under section 173, Cr.P.C. Was submitted against the appellant by the local police in the Court of Illaqa Magistrate under Article 3/4 of the Prohibition Order, 1979. The Magistrate in turn forwarded the same for trial to the Sessions Judge under section 190(3), Cr.P.C.
3. The prosecution, in order to establish its case, produced as many as three witnesses, all police officials.
4. The appellant was examined under section 342, Cr.P.C. In his statement he refuted the charges levelled against him and attacked the validity of the statements of all the P.Ws. On the grounds that, all of them, being police officials, were interested witnesses and could not be relied upon safely in the absence of any other independent/disinterested witnesses. The alleged recovery of heroin powder effected from the possession of the appellant by the Investigating Officer was denied in toto.
5. Appellant Ishtiaq Ahmad was tried by the Additional Sessions Judge, Peshawar (Mr. Zia-ud-Din Siddiqui). After the conclusion of the trial the Additional Sessions Judge found the appellant guilty and, by his judgment recorded on 26-2-1996, convicted and sentenced him to undergo two years'
R.I. And to pay a fine of Rs,2,000 or in default thereof to undergo further R.I. For three months.
Additionally, he was also to be whipped thrice.
6. Feeling aggrieved the appellant has challenged his conviction and sentence by way of this appeal.
7. I have heard Mr. Murtaza Khan Durrani, Advocate, learned counsel for the appellant and Mr. Muhammad Khurshid Khan, learned Assistant Advocate-General for the State and have also gone through the record with some degree of care.
8. It seems to be a well-settled proposition of law that in criminal cases the burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt. This duty, it may be mentioned, does not change or vary even in a case in which no defense plea is taken by the accused. The defense plea is always to be considered in juxtaposition with the prosecution case and, in the final analysis, if defense plea is proved or accepted then the prosecution case would stand discredited and shattered. However, if the defense plea is substantiated, to the extent of creating doubt in the credibility of the prosecution case, then in that case, it would be enough. It may be noted that in case it is not established, at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. Reliance may be placed on case titled Ashiq Hussain v. The State reported as 1993 SCM R 417.
9. Similarly it was held in case titled Hakim Ali and 4 others v. The State reported as 1971 SCM R 432 that in criminal trials the onus always lies on the A prosecution to prove its case and the prosecution has to succeed upon the strength of its own case and not on the weakness of the defence.
10. Keeping in view the dictum as laid down by the Honorable Supreme Court of Pakistan in the cases, referred to above, I would now discuss the evidence produced by the prosecution in support of its case.
11. At the outset, the learned counsel for the appellant submitted that the case in hand was a concocted case and the version given in the F.I.R. (Exh.P.A.) was absolutely incorrect and false. He further stated that A.S.-I. Badam Gul (P.W.3) has suppressed the facts because nothing was recovered from the possession of the appellant as has been depicted by him. He further contended that it was for this reason that nobody from the public was associated with the recovery process although quite a few persons were present on the spot when the recovery of contraband heroin powder was allegedly effected from the possession of the appellant. He drew my attention to the cross-examination of the A.S.-I. (P.W.3) wherein he has admitted:-- "It is correct that many people were present at the time of occurrence. It is correct that I have not recorded the statement of any public witness on the spot."
12. Similarly, the other P.W., who was produced to prove the recovery memo. (Exh.P.C.) i,e,, F.C. Alam Zeb (P.W.1) also admitted this fact, in his cross-examination, in the following words:-- "Many persons were present at the time of occurrence in General Bus Stand but no one was associated from the public to attest the recovery memo."
13. The learned counsel further submitted that the perusal of the recovery memo. (Exh.P.C.) would show that it is absolutely silent as to when, where and at what time the recovery was allegedly effected. In the above background the veracity of the recovery memo. (Exh.P.C.) was questioned vehemently.
14. Besides, the learned counsel contended that it is now well-settled principle of law that if the law provides that an act should be done in a particular manner, then in that case, it shall be done in that manner and not in any other way. In support of his contention he placed reliance on the following case-law:--
(1) Ghulam Hamza v. The State 1996 PCr.LI 514,
(2) Muhammad Rafiq v. The State 1985 PCr.LJ 1985.
15. According to the learned counsel for the appellant the A.S.-I. (P.W.3), the head of the police patrolling party, failed to associate even one independent witness from the public with the arrest of the appellant and the recovery of heroin powder from his possession even though the alleged incident, took place at the General Bus Stand, Peshawar, a populated and congested locality, at a time when the roads leading to it were chocked with traffic and pedestrians. This fact alone would render the prosecution case highly doubtful and would support the claim of the appellant that the case against him was concocted. The truth of the matter is, alleged the counsel for the appellant, that when the appellant, who belongs to village Murid situated in Tehsil/District Chakwal, Punjab, was searched, a sum of Rs,300 was recovered from his possession which was usurped by the police party. Since the appellant had demanded that the amount in question be returned to him therefore, he was involved in the present case. B/ parity of reasoning I find myself in complete agreement with the learned counsel for the appellant. It has not been made clear by the prosecution as to what prevented the Investigating Officer from associating anybody, from the public, to witness the recovery of heroin powder from the possession of the appellant. In fact the evidence on the file would show that no attempt whatsoever was made by the Investigating Officer to get the recovery witnessed by an independent/ disinterested person. In this setting of facts, the accusation, on the very face of it, is as vague as it is ambiguous. Reliance may be placed on case reported as titled Qaloo v. The State 1996 PCr.LJ 496.
16. In my opinion since the persons from the public, being available and present, were not even called upon to become the recovery witnesses, therefore, the mandatory provisions of section 103, Cr.P.C. Were definitely violated.
17. In addition to this, it may be observed, that the A.S.-I. Badam Gul (P.W.3) is himself a complainant and has also acted as an Investigating Officer. Legally he could not assume this dual function and it was incumbent upon him to have entrusted the investigation of the case to another disinterested Police Officer. This fact by itself, has rendered the very trial of the case a sheer mockery. Additionally, it may be pointed out that if such a procedure/practice is allowed to continue, it would give a licence to the police to involve innocent people in false/fake cases according to their whims. This trend, in my opinion, is extremely dangerous and is accordingly deprecated with contempt. In this respect I am also, to a great extent, supported by the following cases:--
(1) Bashir Ahmed and others v. The State 1996 PCr.LJ 418,
(2) Muhammad Altaf v. The State 1996 PCr.LJ 440,
(3) Qaloo v. The State 1996 PCr.LJ 496.
18. On the other hand, the learned Assistant Advocate-General when confronted with the above situation could not rebut the position emerging from the above line of reasoning. Resultantly the recovery memo. Relied upon by the prosecution is hereby discarded. The appeal is accepted and the conviction and sentence recorded by the Additional Sessions Judge vide his judgment, dated 26-2-1996 is set aside. The appellant shall be released forthwith if not required in any other case.
19. On the conclusion of the arguments, this appeal was allowed on 12-6-1996 by a short order.
Reasons for the said short order are given, in detail, in this judgment.