' The appellant has assailed the judgment delivered by the Court of Additional Sessions Judge, Attock on 28-4-1998 whereby he has been convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter to be referred to as the said order, and has been sentenced to R.I. For 4 years, and fine of Rs,20.000 or in default of this fine to suffer further R.I. For 6 months. Benefit of section 382-B, Cr.P.C. Has also been extended.
2. The allegation is that one Muhammad Jahangir (P.W.7) S.-I./S.H.O, Police Station Attock Khurd District, Attack was on patrol duty accompanied by police personnel on 24-4-1995 that at about 4- 10 a.m. One Toyota Hiace No,4254-PRP came from Peshawar side and stayed at the check post. The said vehicle was searched through Altaf Hussain (P.W.3), H.C., and then one Suspicious person was made to come out of the car who was produced before the abovementioned Muhammad Jahangir (P.W.7). On inquiry he came to be known as Khasta Bagh son of Mast Muhammad, Pathan, resident of Khyber Agency. On the personal search of this Khasta Bagh two packets were recovered which were attached with his back and tied with his string. On the checking of the two packets heroin weighing 2 kilograms was recovered from each packet. 10 grams of heroin was separated for chemical analysis and the remaining heroin was sealed into two separate parcels on which the symbol 1/1- SR was inserted. The sample as well as heroin was sealed into parcel as P.1 and was taken into custody by the said complainant vide memo. Exh.P.A,. Which was attested by Mumtaz Khan (P.W.6), and Altaf Hussain (P.W.3) both of them being police constables. Then complainant drafted complaint which is Exh.P.D. And sent it for registration of formal F.I.R. At Police Station which F.I.R. Is Exh. P. D. I .
3. During the investigation abovementioned accused Khasta Bagh disclosed that he had met present appellant at the shop of one Gul Rehman where bargain was made and according to that bargain this heroin was to be handed over to the present appellant after crossing the check post at Attack, at Haji Shah Mor. The complainant/Investigating Officer arranged a raiding party and spread police constables around Haji Shah Mor. The police remained secret and the recovered heroin was handed over to the abovementioned Khasta Bagh, accused who was kept at a close watch. At 9-55 a.m. a Car No,RIP-4817 came from Rawalpindi and stopped at Haji Shah Mor. The appellant came deriving that car and on seeing Khasta Bagh came towards him. The appellant took a bag containing the abovementioned heroin from Khasta Bagh and paid him Rs,3,000. Then the appellant was almost to board his car that the Investigating Officer and 1 other police officials over powered him and Khasta Bagh was also again taken into custody. This Car No,RIP-4817 was also taken into custody and Rs,3,000 were also recovered from Khasta Bagh vide memo. Exh.P.C.
Later on both of them were challaned and charged under Article 3/4 of the said Order to which both of them did not plead guilty.
4. To prove its case the prosecution examined 7 witnesses. Sana Ullah (P.W.1) has deposed that on the day of occurrence he was posted as Moharrir Mall Khana Police Station, Attock Khurd. On the same day (P.W.7) handed over to him 2 sealed parcels allegedly containing heroin. On 2-5-1995 he handed over the said parcels in tact to Ashiq Hussain (P.W.2), constables for onward transmission to the office of the Chemical Examiner, Rawalpindi, Ashiq Hussain (P.W.2), P.C., has corroborated (P.W.1) and has further deposed that he deposited the same parcel into the office of the Chemical Examiner on the same day in tact. Altaf Hussain (P.W.3), LHC, has proved that he was member of the patrol party headed by Muhammad Jehangir (P.W.7). At about 3-40 a.m. On the night of the occurrence a Coaster No,4252-PRB came from Peshawar side and stopped at the check post. He searched the said vehicle and a person found suspect was brought down who was searched by complainant (P.W.7). Since 2 packets of heroin were recovered, therefore, that person was arrested and he disclosed his name to be Khasta Bagh. Alongwith heroin Rs,227 and wrist watch P.2 and P.3 were recovered from the said Khasta Bagh which was taken into custody vide memo. Exh.P.G.
Remaining portion of his deposition is almost the same which has been mentioned in Para.2 of his judgment. Muhammad Shabbir (P.W.4), A.S.-I., has proved the recording of formal F.I.R. Exh.P.D./1.
Muhammad Azram (P.W.5), LHC, has deposed that on 2-5-1995 he was made to join investigation of this case and the present appellant led to the recovery to one Chillan Form of Case No,130 of 1992 for the offence under Article 3/4 of the said order at Police Station Iqbal Town, Lahore. The appellant led also to photo copy of the said order of Court in the same case from underneath seat cover and rear seat of Car No,4817. The photo copies of the Chillan Exh.P.5 and the Court order Exh.P.6 and the car P.7 were secured by Investigating Officer vide memo. Exh.P.E. Which was attested by him. Mumtaz Khan (P.W.6), H.C. Has deposed that he was a member of the raiding party led by Muhammad Jahangir (P.W.7). On the day of occurrence at 3-40 night time Toyota Hiace PRT-4252 came from Peshawar and stopped at the check post. The vehicle was checked by Altaf Hussain, H.C. (P.W.3) and then from the said vehicle Khasta Bagh was brought down as a suspect and 2 kilograms of heroin were recovered from him which was kept into two polythene envelopes which were tied with his Azarband. Twenty grams of heroin were separated and the remaining heroin was sealed into parcel and a seal of letter G.R. Was affixed on the parcels. He has proved the memo. Of recovery Exh.P.A. As attested by him and Altaf Hussain. Then he has deposed as to how the present appellant was apprehended, but he has also stated that the present appellant, was apprehended at 7 or 7-30 a.m. Muhammad Jehangir (P.W.7), S.-I./S.H.O.
Complainant is also Investigating Officer in the present case. He has proved his complaint Exh.P.D.
And has also deposed about the various steps taken by him during the investigation of the present case. He recorded statements of P.Ws. Under section 161, Cr.P.C. And he has also deposed the way present appellant was arrested by him. He has also deposed that at 9-55 a.m. On the day of occurrence present appellant was coming from Rawalpindi while driving his car. He prepared the site plan of the place from the place the appellant was arrested which is Exh.P.G. He has also made reference to the 2 documents which were recovered on the potation of the appellant.
5. In his statement under section 342, Cr.P.C. Appellant has denied all the specific questions and to question No,6 as to why this case was brought up against him and why P.Ws. Have deposed against him he has replied as under:-- "On 24-4-1995 the police through me from Lahore on the pretext that Khawaja Mazher then S.P., Attock had summoned me. The C.I.A. Staff, Lahore came to my house and an employee who use to reside close to the house of Khawaja Mazher then S.P. Attack called me for said purpose when reached S.P. Office, Attack. I was taken to Attack Khurd and after 2-3 days later. I came to know that I was, involved in this case falsely. Actually I am a press reporter there exists clash between police and press reporter at Lahore, for that reason on the asking of police at Lahore the police involved me in this case falsely. The car was used by me for travelling from Lahore to Attock and the said car was taken into possession by the police when I was sitting in the office of S.P., Attock. During the investigation Investigating Officer snatched from me Rs,5,500 and involved me falsely in this case.
All the P.Ws. Are police officials and deposed falsely to strengthen the prosecution case."
' In his defence the appellant tendered in defence certain documents which have been Exhibited as Exh.D.A., Exh.D.B., Exh.D.C., Exh.D.D. And Exh.D.E., and a letter issued by the Frontier Post and is marked as "A". The co-accused Khasta Bagh has also been convicted in the present case but it appears that he has not filed any appeal. In reply to question under section 342, Cr.P.C. He has replied as under:-- "I neither taken the heroin from police nor handed over to Abdul Waheed nor I received any money from Abdul Waheed. The whole story is concocted one and incorrect. And even I do not know Abdul Waheed my co-accused."
6. I have heard the learned counsel for the appellant and State. The contentions of the learned counsel of the appellant are that there is a clear violation of the mandatory provisions of section 103, Cr.P.C.; that there are material conflicts and discrepancies among the P.Ws.; that Muhammad Azhar (P.W.5) has deposed of about the potation of documents Exh.P.5 and Exh.P.6 by the appellant on 2-5-1995 but according to the remaining evidence the appellant was already arrested on 24-4- 1995 and was in judicial custody on 2-5-1995 and, therefore, there are indications of the fabrications in the case by the prosecution; that no recovery was made from the appellant and his co-accused has denied even the acquaintance with him and that the appellant has proved through documents tendered by him that the prosecution has acted under malicious intentions to teach a lesson to a truthful and out spoken press reporter.
7. The learned counsel for the State has contended that even if the enmity with the police is proved, yet the police cannot foist 2 kilograms of heroin for being costly material; and that the prosecution has proved the case beyond reasonable doubt.
8. The first and foremost contention of the counsel for the appellant is that there is a clear violation of the mandatory provisions of section 103, Cr.P.C. This section reads as under:-- "Search to be made in presence of witnesses.--- (1) Before making a search wider this Chapter, the Officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it."
What I find from the record is that all the witnesses of recovery are not only the police constables but also belong to the patrolling party laid by P.W.7 Muhammad Jehangir who is himself S.H.O.
Complainant and Investigating Officer had the defiance plea of enmity with the police not been taken and had the documents in the defence not produced i,e, Exh.P.W.-A to P.W. -DE as well as certificate marked is A, I would not have considered this contention as it is by now an established principle that the witnesses of police are as good witnesses as the witnesses from the public and the Mashirs of police are as good as Mashirs from the public provided that it is explained in the evidence as to why and under what circumstances the mandatory provisions of section 103, Cr.P.C.
Have been violated and as to why the witnesses from the public have not been joined. In this context I have thoroughly gone through the rulings enunciated by Mr. Justice Ajmal Mian and Mr. Justice Salim Akhtar (as he then was) in a judgment reported as PLD 1997 SC 408. These rulings are quoted verbatim from the heading as under:-- "(b) Criminal Procedure Code (V of 1898)--- ----S. 103---Recovery---Requirement of 5.103, Cr.P.C. Namely that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public---If, however, the statement of the Police Officer indicated that no efforts were made by him to secure two Mashirs from public, the recoveries would be doubtful.
' A Police Officer produced as a witness for the prosecution can be relied upon like other prosecution witnesses but as he is an Investigating Officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinize the evidence of such witnesses with care and caution. Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for non-compliance with the provisions of section 103. Section 103 read with section 164, Cr.P.C. Lays down the mode for recovery and search but, as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation. So far the acceptability of the evidence of the Police Officer is concerned, the general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence or brought through cross-examination, the evidence of such a witness, though a policeman, may be accepted.
However, in cases of recovery, this principle is accepted subject to furnishing an explanation by the prosecution for noncompliance with section 103."
When I took into the evidence I find that on the one hand complainant, Investigating Officer and S.H.O. Is the same person and on the other hand Investigating Officer has not explained as to why he has not arranged for the joining of the respectable persons of the locality specially when he had time enough to have arranged specially when Khaista Rehman had already given his statement and had apprised about the coming of the appellant at least 4 to 5 hours before hand as alleged.
' In view of this position and in the circumstances of the case I find that the rulings of the Honorable Supreme Court of Pakistan as quoted above are relevant and are to be applied to the present case and, therefore, I hold that the learned counsel for the appellant is correct in his contention that there is a clear) , violation of the provisions of section 103, Cr.P.C. Which violation in itself is Li not curable.
9. Another contention of the learned counsel for the appellant is that there are material conflicts and discrepancies among the P.Ws. In this context a reference has been made to the following contradictions emerging from the evidence. Mumtaz Khan (P.W.6) H.C., has deposed that at about 7 or 7-30 a.m. The appellant came at Haji Shah Mor in his Car No,RIP-4817 and was apprehended and arrested. In conflict to this deposition, Muhammad Jehangir (P.W.7), complainant and Investigating Officer and S.H.O. Has deposed that the appellant came in his Car No,RIP-4817 from Rawalpindi and stopped at Haji Shah Mor at about 9-55 a.m. This discrepancy of about 2 hours and 30 minutes is enough to dislodge the story of the prosecution specially when the position of defence as taken by the appellant in his reply to question No,6 in his statement under section 342, Cr.P.C. Is that he was called in the office of S.P., Attock and parked his car in the same office and there then he came to know that he has been involved in the present case and the car was impounded. (2) Altaf Hussain (P.W.3) has replied to a suggestion that all the Police Officers were in the uniform at the time of occurrence and at the time when the present appellant was apprehended, but in conflict to this Mumtaz Khan (P.W.6) has replied to a suggestion that the police party was in civil dress when the appellant stopped his car and was arrested. (3)
Muhammad Azram (P.W.5) had deposed that the colour of the car was white whereas actually the colour of the car is blue. Although these discrepancies can be considered as minor and cannot dislodge the story of the prosecution on their I, own, but when looked into in the general perspective of the case. These L discrepancies do count.
10. It appears from the impugned judgment that the trial Court had not applied its mind in respect of the documents produced in defiance by the appellant. Since these documents have been exhibited, and the prosecution has not challenged these documents, therefore, the documents hold ground and are to be looked into while keeping in view the plea of the defiance of the appellant that there is a clash between police and press reporters at Lahore and that clash has become the raison deter for the present case. Document marked as A is a certificate from the Frontier Post in favors of the appellant which reads as under:-- "To whom it may concern ' We are glad to certify that Mr. Abdul Waheed Khan son of Abdul Rasheed Khan has joined The Frontier Post in June, 1990 to 1995 as Circulation Manager at 10 Shahara-e-Fatima Jinnah, Lahore, during his service he endeared himself amongst the members of the staff due to his honesty, sincerity and hard working. He is a man of possessing amiable manners and an imposing personality. He is obedient and asset to our organization. He is quite fit for to shoulder any job, where honesty and integrity and sincerity are the determining factors. He work and conduct have been highly satisfactory, therefore, we recommending him strongly for such an assignment in future."
' Exh.D.D. Is a press Card issued by a periodical Bhulekha in favors of the appellant indicating him to be the Deputy Editor of the said periodical Exh.D.E. Is a Press Card showing the appellant as a Deputy Editor of weekly Post Mortem, Lahore. A Passport No,B665176 is indicating that the appellant is Circulation. Manager of the some periodical Exh.D.A. Is a photograph published in the Frontier Post, Lahore, dated 17-1-1992 in which the appellant has been shown as the Circulation Manager of the Frontier Post and from the details it appears that he has been holding some important position in this paper. Exh.D.C. Is a column, dated 30-11-1997 to 6-12-1997 in weekly Post Mortem in which the appellant has written a column about Mst. Nusarat Shaheen (politician) in his pen name Waheed Khan and has criticized her in a harsh language which must have created a loss of resistance for him. Then in this paper Post Mortem there are many news which are directly involving the police personnel and are demanding a thorough enquiry about the police personnel indicting the higher bureaucrats of the police. Exh.D.B. Is a column in the said weekly, dated 21-12-1997 to 27-12-1997 written by the appellant in his pen name about Kalabagh Dam in this paper also carries many news against the high handedness of the bureaucracy. All these documents produced in defence are clearly indicting that the appellant has been an active person in the press, not only as a Circulation Manager but also as a writer of the columns condemning the bureaucracy and the politicians in harsh language which appears to have teased the police personnel.
11. So far as the allegation of documents Exh.P.6 is concerned, it is simply an application given by the appellant for the Superdary of the car involved in the present case as well. It was involved in a case registered against the appellant's father Abdur Rashid at Police Station Iqbal Town, Lahore under Article 3/4 of the said order and so is the case of the challan Exh.P.W.5. It has been stated by the prosecution that the appellant is a habitual dealer in the narcotics in view of these documents Exh.P.6 and Exh.P.5. I do not agree with this point of view of the prosecution due to the fact that first of all it is not known as to whether the appellant's father Abdur Rashid was acquitted in the said case or convicted or whether the case is still under trial. Unless a person is not proved to be guilty in an offence he is presumed to be innocent. Therefore, I hereby presume Abdur Rashid as an innocent person in case he has not been convicted. Even if I presume that the father of the appellant Abdur Rashid is acquitted or has been convicted, yet I am guided by the Principles as laid down by the Holy Qur'an and the Sunnah. Verse No,15 of Surat No,17 (Sorah Bani Israil) reads as under:-- {{URDU TEXT}} "Who received guidance, Received it for his own Benefit: who get astray Doth so to his own loss: No bearer of burdens Can bear the burden Of another: nor would we Visit with Our Wrath Until We had sent An apostle (to give warning)."
In view of the principles as shown above, a father's guilt, whether proved or not, cannot be thrown into the neck of his son. While determining the guilt of the present appellant, this principle has been violated and a presumption has been created that the appellant is a habitual dealer in the narcotics.
12. In view of the above made discussion, I have come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubts. Consequently, the benefit of doubt is extended to the appellant. The H impugned judgment is set aside and the appeal is accepted. The appellant Abdul Waheed son of Abdul Rashid shall be released in case not wanted in any other case.
Anneal accepted.