1. ' Appellant has assailed a judgment delivered by the Court of Sessions Judge, Abbottabad on 18-8- 1998. Whereby he has been convicted under Article 4 of the Prohibition (Enforcement of Hadd)
2. Order, 1979, hereafter to be referred to as. The said Order, and has been sentenced to R.I. For 10 years. He has also been fined for Rs,10,000. In case of default he shall suffer further S.I. For one year.
3. Benefit of section 382-B, Cr.P.C. Has been extended.
2. Ayaz Khan (P.W.5), S.-I./S.H.O. Police Station Hawelian was on a patrol duty on 14-2-1996 at 14-45 hours and was accompanied by other personnel of police and was in search of narcotics peddlers.
4. At Takia Sheikhan he received information that heroin is being brought to Hawelian. Ayaz Khan then went to Mannan Stop, Gora Baz Gran Road, where he came across a young person with a black shopping bag in his hand. On suspicion he was stopped and searched. On search of shopping bag a packet having plastic and cloth cover containing one Kg. Of heroin was recovered. One gram was separated and sealed in a parcel for chemical analysis and the remaining heroin was sealed in a separate parcel. A complaint Exh.P.A./1 was prepared and sent to the police station where an F.I.R. Was registered on the same date at 15-15 hours. Appellant was arrested, challenged and charged under Article 3/4 of the said Order to which he did not plead guilty.
3. To prove its case prosecution examined five witnesses. Hamid Ali (P.W.1), M.I.C., has proved receipt of Parcel No,1 containing one gram heroin and parcel No,2 containing 999 grams from Ayaz Khan (P.W.5) on 14-2-1996 for keeping in Malkhana which he entered in Register No,19 at Serial No,401. He produced original register in the Court, Photostat copy of which is Exh.P.W./1. He sent the sample to the Chemical Examiner through F.C. Muhammad Younis (P.W.2) vide Receipt No,70/21, dated 26-2-1996 which s Exh.P.W.1/2. Muhammad Younis (P.W.2) F.C. Has corroborated evidence of P.W.1. He has proved that he handed over the parcel to the F.S.L. Peshawar on the same day.
5. Mumtaz Hussain Shah (P.W.3), A.S.-I. Has proved his being a member of the patrolling roily led by S.H.O./complainant. He has proved contents of the complaint Exh.P.A./1. He is a Mashir of memo. Of recovery Exh.3/1 which has been proved by him. Khalid Khan (P.W.4) has proved receipt of complaint Exh.P.A./1 and registration of Exh.P.A. By him.
6. ' Ayaz Khan (P.W.5), complainant, has proved the contents of complaint Exh.P.A./1. He recorded statements of witnesses under section 161, Cr.P.C. And wide application Exh.P.W.5/1 he sent the sample to the Chemical Examiner. Report Ekh.5/2 is positive. Finally he submitted complete challan in the Court.
7. ' In his statement under section 342, Cr.P.C., appellant denied all the specific questions. To question No,1 he has replied:-- "No, It is absolutely incorrect and false allegation. F.C. Iqbal belonging to Village Takkia Sheikhan was on inimical terms with me and at his behest on altercation with Ayaz Khan I was falsely implicated in the instant cooked up case."
8. ' To another question, he has replied:-- "I know nothing about deposit of any material as alleged by the prosecution and I also do not know about the sending of any alleged material to the Chemical Analysis, however, Chemical Examiner Reports reveals that the alleged material was sent to Chemical Examiner with the delay of 14 days and this inordinate delay has not been explained by the prosecution. Moreover, the said constable has also not stated in deposition that the sample was not tampered with."
9. ' To a question as to why P.Ws. Have deposed against him, he has replied:-- "No independent witness has deposed against me. Only police officials who are interested and inimical to me have falsely deposed against me at the behest of one F.C. Iqbal resident of Takkia Sheikhan due to enmity with me, and Ayaz Khan, S.H.O. Has falsely invented a fabricated false story against me at the behest of Muhammad Iqbal F.C."
10. ' Appellant has examined himself on oath as D. W.1. His examination-in-chief is reproduced as below:-- "I am educated up to three classes. On the day of my arrest I was taken to police station 6-00/7-00 a.m. From my house along with my mother and three brothers. Nothing was recovered from our house during the search and he was taken to police station without reason. The actual reason of our arrest was that I and two other persons had quarrelled 2/3 times with Iqbal F.C. Of Police Station Havelian who is resident of Takkia Sheikhan which is at a distance of 4/5 kilometer from my village.
11. The other two persons who had quarrelled with Iqbal F.C. Was Sajjad and Taj. Said Iqbal F.C. Used to object on persons boarded on the roof of the bus while passing through his village and due to this reason he used to quarrel with us. Respectables of the village including Nawaz requested police that his mother should not be taken 'to the police station but his request was turned down. My mother was let free on the same day at evening time, while, my brother Javed, Sikandar Azam and Sohrab Azam were let free after one day at evening. I am innocent and nothing was recovered from me. False case was made against me on account of abovementioned reasons."
12. ' Muhammad Nawaz Khan has been examined as D.W.2. He has deposed that he is a neighbored of the appellant and that the police raided the house of the appellant at 6-00/7-00 a.m. On the date of arrest and took along with them the appellant, his three brothers and mother. The mother was released on the same day in the evening. Three brothers were let free next day or the day following the next day. According to this witness he was standing outside the house of the appellant at the time of raid that nothing was recovered from appellant at the time of raid. Javed Khan (D.W.3) has deposed that the appellant is his real brother. He has corroborated D.W.1 and D.W.2 and has further stated that at the time of their arrest people of the locality had protested but the police had paid deaf ear. He has further stated that as his mother, he himself and other brothers were released later so also appellant was being released by S.H.O. He was not released as he abused the S.H.O.
4. I have heard the counsel for appellant and State. At the outset the counsel for appellant has contended that the sample parcel of one gram of heroin was prepared on 14-2-1996, but the same was received by the Chemical Examiner on 26-2-1996. Consequently, this delay is fatal to the prosecution. This contention is repelled as misconceived because of the fact that the chain ofA the custody and intactness of the parcel containing sample is not broken. P.W.1 has produced original register of receipt and dispatch of the sample which was seen and returned by the trial Court and the photo copies of the same were brought on the record as Exh.P.W.1/1 and Exh.P.W.1/2. During cross this witness has deposed:-- "I had not opened the parcels, therefore, I cannot say what the parcel were containing. We sent the same parcel to the Chemical Examiner on 26-2-1996."
13. ' P.W.2 is F.C. No,703 who has corroborated P.W./1 and has proved that nobody had interfered with the parcel during the period it remained with him. During cross he has deposed:-- "I had taken 6/7 parcels to the laboratory of different type and I handed over the same at about 11/12 hours. All the parcels were taken into a bag and that bag was not sealed. It is incorrect to suggest that parcel in question was not packed into sealed parcel."
14. Report of Chemical Examiner Exh.P.5/2 corroborates P.W.2 to the extent that F.C. No,703 has brought the parcel and the seals on the parcel were found intact. Consequently, the tampering with the parcel containing sample for Chemical Examiner is not proved.
5. It has been contended that as per complaint Exh.P.A./1, the recovered heroin was sent to the police station through F.C. Muhammad lqbal. Ayaz Khan P.W.5, complainant-cum-Investigating Officer was made certain suggestions to which he has replied:-- "I do not know whether F.C. Iqbal is a resident of Takia Sheikhan or not. It is incorrect to suggest that lqbal F.C. Had enmity with the accused and at his instance false case against the accused was fabricated."
15. ' Since the plea of defiance is that of enmity of appellant with F.C. Muhammad lqbal, therefore, a doubt is created in the case. In this context reliance has been placed on inter alia, 1998 PCr.LI 808.
16. The relevant portion of the said judgment of Single Bench of Abbottabad Circuit of the High Court of Peshawar in para. No,17 which reads:- "Beside this in this case the allegation of the appellant that the Investigating Officer (P.W.4) was on inimical terms with him and his family and had a motive for falsely implicating him in this case is fully established from the cross-examination of the Investigating Officer (P.W.4) The same is reproduced as under-- ' It is correct that prior to this occurrence on 12-12-1992 I had registered a case against the brother of accused namely Arab Zaman-vide F.I.R. No,221 which is Exh.D.5. Similarly I had recorded F.I.R. And registered a case against another brother of accused namely Maqsood vide F.I.R. No,18, dated 10- 12-1992 which is Exh.D.6. On 10-12-1992 I had also registered a case vide F.I.R. No,219 of Police Station Khanpur against Arab Zaman the real brother of accused which is Exh.D.7. It is correct that the said Arab Zaman and Maqsood against whom I registered the case, are real brothers of the accused. It is correct that on 20-4.-1996 the real brother of accused Khalid namely Masood was murdered by the police in his house in the limits of Police Station Khanpur. It is correct that a Private complaint has been filed by the brother of deceased namely Sardar against me and S.H.O. Namely Mehmood Hussain, which is pending before the learned Sessions Judge, Haripur. It is incorrect to suggest that in all the cases registered by me against the brothers of accused Khalid they have been acquitted being false cases and the present case is also a chain of the said false cases. It is further incorrect to suggest that nothing was recovered from the accused and I planted the said recovery just to counter the acquittal orders of his brother."
17. ' The cited case is totally distinguishable from the facts of the present case. In the cited case, enmity of the appellant/accused with the Investigating Officer of the case was fully established. In the present case, there is simple denial of Investigating Officer to suggestion that the F.C.
18. Muhammad Iqbal had some enmity with the appellant. This enmity has not been proved although allegations have been made. During cross, the appellant has deposed as D.W.1 as under:-- "My driver brother plies vehicle/truck and he was in Karachi at the time of my arrest. So, many other persons also quarrelled with Iqbal F.C. Due to overloading of bus on roof, as his house was visible from the roof of bus. No quarrel with Iqbal F.C. Was ever reported to police. Taj and Sajjad who had also quarrelled with Iqbal were not arrested by police because the matter was compromised by the elders of the village and they went from the village. My compromise had also taken place but we again quarrelled because we were sitting on the roof of the bus and Iqbal F.C. Etc. Stoned at us."
19. ' He also admitted as under:-- "My mother along with my brother used to visit the jail. When we met in the jail. We used to talk about the present case as it was concocted by the police at the instance of Muhammad Iqbal, F.C.
20. At me as we could do nothing being Zamindar and illiterate persons against police official Muhammad Iqbal. My brother did not submit any application to any forum or the concerned M.P.A.
21. About the present situation because they were illiterate and Zamindar. I am facing trial before this Honourable Court for the last two years but I did not move any application regarding my innocence nor I moved any application regarding the conduct of the police station."
22. ' Muhammad Nawaz (D.W.2) has admitted to a Court question as under:-- "I know that accused was arrested by police a few times before this.' occurrence of arrest. I do not know why he was arrested by police. The accused has no other job and he works Zamindara. Later on I came to know that the accused and his family was arrested because thee, had some unlawful thing and it was suspected by the police. Our M.P.A. Is Khurshid Azam who had come to our village for canvassing but he did not come to our village afterwards. Nobody from our village complained to M.P.A. That the police had wrongly arrested the accused and his family members. I personally do not know about any enmity in between police and accused, however, accused had told me that he has quarreled with Iqbal F.C. Of Police Station Havelian. I do not know the details of quarrel.
23. Accused told me this fact after the occurrence and his arrest."
24. In view of this position, it stands clarified that the plea of enmity withl D F.C. Muhammad Iqbal is an afterthought and is treated as such.
6. As discussed above, I conclude that the prosecution has, proved the guilt of the appellant beyond reasonable doubt. Consequently, the impugned judgment is upheld and the appeal is dismissed.