PLJ 1997 FSC 64
[Appellate Jurisdiction]
Present: NAZIR AHMAD BHATTI, C.J. Mst. NARGIS-Appellant
versus
STATE-Respondent
Jail Criminal Appeal No. 224 of 1995, accepted on 17.3.1996.
Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)--
—-S. 4--Heroin--Recovery of-Conviction for-Challenge to--Contention that no case property was produced during trial and it was not known whether any heroin powder was recovered from possession of appellant- It is correct that no case property was produced during trial although 15 grams were retained as case property from entire bulk powder and remaining was destroyed on order of Magistrate but aforesaid 15 grams were also not produced during trial--lt is duty of state to produce all evidence which is necessary to bring home guilt of accused beyond any doubt whatsoever—Since there was no property available on record
matter had become doubtful, benefit of which must go to appellant- Appeal accepted. [P. 65] A & B
matter had become doubtful, benefit of which must go to appellant- Appeal accepted. [P. 65] A & B
Malik Muhammad Anwar, Advocate for Appellant. Mr. M, Saleheen Mughal, Advocate for State. Date of hearing: 3.3.1996.
JUDGMENT
A.S.I. Atta Ullah Khan and some other police officials were present at Attock Khurd Check Post on 20.8.1994. At about 9.00 a.m. a coach bearing No. MRC 955 cam from Peshawar
2. After investigation appellant Mst. Nargis was sent up for trial before Mr. Salahuddin Khan Sumbal, Magistrate 1st Class with powers under section 30 Cr.P.C., Attock, who charged her under Article 4 of theProhibition (Enforcement of Hadd) Order, 1979. The appellant pleaded not guilty and claimed trial. The state produced 5 witnesses in proof of the prosecution case. The appellant made a deposition under section 342 Cr.P.C. but she neither made any deposition on oath nor produced any defence evidence.
3. After the conclusion of the trial Mr. Muhammad Ashraf Nohria, M.I.C. with powers under section 30 Cr.P.C., who had in the meantime become seize in the case, convicted the appellant under Article 4 of the Prohibition Order and sentenced her to undergo rigorous imprisonment for 5 years, to suffer 10 stripes and to pay a fine of Rs. 20,000/- or ia default to further undergo rigorous imprisonmlUt for 6 months. The convict has challenged her conviction and sentence'tiy the appeal in hand.
4. Lady F.C. Zarina Bano appeared as P.W. 4 and deposed that she had herself recovered the grey envelope from the hand of the appellant and had produced the same before A.S.I. Atta Ullah Khan who opened it and recovered !ft)0 grams of heroin therefrom. This witness had first stated about ecovery of opium but in the next breath she corrected herself and said that heroin powder was recovered from the envelope. The recovery memo prepared by the A.S.I. was attested by this lady Constable and Zafrullah Khan, F.C. A.S.I. Atta Ullah Khan appearing as P.W. 3 corroborated the contents of the F.I.R. He stated that search of the appellant was carried out by lady F.C. Zarina Bano and she recovered a grey envelope from her which contained 500 grams of heroin. He further stated that he separated 10 gramsfrom the bulk powder as sample and prepared two parcels which were attested by lady F.C. Zarina Bano and Zafrullah Khan F.C. The sample parcel was received in the Office of the Chemical Examiner on 22.8.1994 and it was found to be heroin which could cause intoxication. The appellant denied the recovery of any heroin powder from her possession and further stated that she was innocent.
5. Learned counsel for the appellant contended that no case property had been produced during the trial and it was not known whether any heroin powder was recovered from the possession of the appellant. The learned counsel for the State sought an adjournment and on the adjourned date he produced a certificate about destruction of the case property issued by a Magistrate on 25.10.1994.
6. I have considered this aspect of the matter very anxiously. It is correct that no case properly was produced during the trial although 15 grams were retained as case property from the entire bulk powder and the remaining was destroyed on tie order of the Magistrate but the aforesaid 15 grams were also not produced during the trial. It is the duty of the State to produce all the evidence which is necessary to bring home the guilt of the B accused beyond any doubt whatsoever. In the present case although some portion of the case property was retained Itfter destruction of the major portion thereof on the order of the Magistrate but no evidence was produced with regard to that and since there was no case property available on the record the matter land become doubtful, the benefit of which must go to theappellant.
7. Consequently the appeal is accepted. The conviction and sentence of the appellant awarded by the learned Magistrate on 4.9.1995 are set aside and she is acquitted of the offence for which she was convicted and sentenced. She shall be set at liberty forthwith if not wanted in any other case.
(AAJS) Appeal accepted.
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