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1994 P Cr
1994 P Cr. L J 854
[Federal Shariat Court]
Before Mir Hazar Khan Khoso, CJ. and Nazir Ahmad Bhatti, J
Mst. AASIA---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.174/L of 1993, decided on 2nd August, 1993.
(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Appreciation of evidence---Evidence available on record showed that a police official had produced a packet of heroin before Investigating Officer stating that he had purchased the same from the accused for a sum of Rs.50---No other evidence except the said statement of the' police official in proof of the offence had come on record---Offence under Art.3 of the Prohibition (Enforcement of Hadd) Order, 1Y79, held, was not proved against the accused in circumstances.
(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 4---Appreciation of evidence---Two independent witnesses, no doubt, had deposed about the alleged recovery of narcotics from the house of accused, but the contention of accused made in her statement under S.342, Cr.P.C. about having Filed a private complaint against Deputy Superintendent of Police and other police officials, had not been denied by the Investigating Officers-- Strong reasons, thus, existed to believe that the accused had been falsely involved in the case simply to take revenge from her for her insolence-- Accused was acquitted in circumstances.
G.N. Gohar for Appellant.
Mian Abdul Qayyum Anjum for the State.
Date of hearing: 2nd August, 1993.
JUDGMENT
NAZIR AHMAD BHATTI, J.--- Nazir Ahmad, Inspector/S.H.O., Police Station City Ahmedpur East received information that appellant. Mst. Aasia was a dealer in narcotics. On 11-1-1991 he sent F.C. Muhammad As lam to purchase heroin from her as a fake customer. After some time the said. F.C. came back and handed over one packet of heroin which he had allegedly purchased from the appellant for Rs.50. The S.H.O. prepared a recovery memo. of the said packet in the presence of Mian Muhammad Ayaz Councillor and Haji Muhammad Akmal, Chairman, Ushr and Zakat Committee. Thereafter he conducted a raid of the house of the appellant alongwith a police party and recovered from underneath the bedding one bag of plastic containing 550 grams of heroin and one plastic bag containing 100 grams of Charas. He also recovered an amount of Rs.77,419 from the appellant. He prepared recovery memos of all the recoveries. He separated 10 grams each from the recovered heroin and Charas for chemical analysis and sent report to the Police Station City Ahmadpur East for registration of the case.
2. After investigation the appellant was sent up for trial before the Additional Sessions Judge, Bahawalpur who charged her under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 to which she pleaded not guilty and claimed trial.
3. After conclusion of the trial the learned Additional Sessions Judge convicted the appellant under Articles 3 and 4 of the Prohibition Order. For the offence under Article 3 of the Prohibition Order the appellant was sentenced to undergo rigorous imprisonment for 7 years, to suffer 20 stripes and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for one year. For the offence under Article 4 of the Prohibition Order the appellant was sentenced to undergo rigorous imprisonment for 14 years, to suffer 30 stripes and to pay a Fine of Rs.50,000 or in default to further undergo rigorous imprisonment for 3 years. The appellant has challenged her conviction and sentence by the appeal in hand.
4. In so far as the conviction under Article 3 of the Prohibition Order is concerned, no evidence, except the testimony of the, fake purchaser F.C. Muhammad Aslam, was produced to prove the purchase of heroin by him from the appellant. Only this came on the record that the said F.C. produced a packet of heroin to the Investigating Officer and stated that he had purchased it from the appellant for a sum of Rs.50. There was no other evidence except the statement of police official in proof of the said offence. We have considered this aspect of the matter very carefully and we have come to the conclusion that no offence under Article 3 of the Prohibition Order was proved against the appellant.
5. In so far as the offence under Article 4 of the Prohibition Order is concerned, no doubt there were two independent witnesses of the alleged recovery of heroin and Charas from the house of the appellant but her contention, as disclosed in her deposition under section 342, Cr.P.C., was that she had filed a complaint against the D.S.P. and other police officials which 8 was pending trial and as vendetta the S.H.O. had involved her falsely in this case. This allegation of the appellant about the private complaint against the said police officials was not denied by the S.H.O./I.0. There are strong grounds to believe that the appellant had been falsely involved in the case of, narcotics simply to take revenge from her for her insolence.
6. For the aforesaid reasons the appeal is accepted. The conviction and sentence of the appellant recorded on 16-5-1993 by the learned Additional Sessions, Judge, Bahawalpur are set aside and she is acquitted of the offence for which she was convicted and sentenced. She is on bail. Her bail bonds stand discharged.
N.H.Q./800/FSC Appeal accepted.