103 baldstatment police privat was not avaulable cano be relied

1996 P Cr. L J 309
[Karachi]
Before Abdul Majid Khanzada, J
ABDUL MAJID---Appellant
Versus
THE STATE---Respondent
Criminal Appeals Nos.29 of 1994 (Larkana) and 47 of 1990 (Sukkur), decided on 19th September, 1995.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Art. 4---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Heroin allegedly having been recovered during personal search of the accused, compliance of S.103, Cr.P.C. was necessary ---Depsite the incident having taken place in broad daylight and in a thickly populated area, private persons were not made as Mashirs of the recovery an arrest of the accused--­ Bald and general statements of the police witnesses that nobody agreed to act as Mashir could not be accepted in the absence of the names of the persons on the record who were so requested but they refused to act as Mashirs---Only five grams of heroin was sent to Chemical Examiner for analysis and no evidence was available on record to prove that the remaining eight grams of heroin which was not sent to Chemical Examiner was also heroin and as such the finding of the Trial Court that the accused was found in possession of 13 grams of heroin was without any substance and evidence---Sample parcel was even sent to Chemical Examiner after 14 days of the recovery---Accused was acquitted in circumstances.
Mir Muhammad v. The State 1995 SCMR 614 distinguished.
Saifullah v. State 1995 MLD 946 and Pomi v. State 1995 MLD 927 ref.
Appellant in person.
Abdul Fatah Mughal for A.A.-G. for the State.
Date of hearing: 28th August, 1995.

JUDGMENT

This appeal has been filed by appellant Abdul Majeed son of Ali Hassan Leghari against the judgment, dated 14-5-1990 passed by the IVth Additional Sessions Judge, Larkana, whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (F.I.R. No.64 of 1989) and sentenced to undergo two years' R.I., five whipping and to pay a sum of Rs.1,000 as fine or, in default of payment, to undergo further R.I. for two months. I have heard the appellant in person and Mr. Abdul Fatah Mughal, Advocate for A.A: G. With their assistance I have gone through the record including the evidence, documents exhibited and the impugned judgment.
2. According to the prosecution, on 29-8-1989 Syed Altaf Hussain Shah, Assistant E.T.O., Larkana alongwith Inspector Safdar Oureshi, Inspector Azharul Haq Shaikh, Excise Jemadar Ghulam Hyder Baloch and nine other Excise Constables, was at patrol in Larkana Town and when at about 3 p.m. they reached in Dari Mohalla near the house of Gul Hassan Leghari, they saw a man in suspicious condition. On enquiry that man disclosed his name as Abdul Majeed Leghari. His personal search was taken and a plastic bag containing 20 paper Puris of heroin and a cash of Rs.18 were secured from his left side pocket of the shirt. The heroin powder was weighed and found to be 13 grams. He took out 5 grams out of...

Expand