MUHAMMAD ISMAIL alias SAJJAD vs STATE
This criminal appeal challenges the judgment of the Additional Sessions Judge-IV, D.I. Khan, which convicted the appellant, Muhammad Ismail, for the possession of heroin and sentenced him to six months rigorous imprisonment. The appellant contended that his conviction was unsustainable due to the non-association of public witnesses during the recovery process and the delayed receipt of the Forensic Science Laboratory (FSL) report. The Peshawar High Court examined whether the police evidence was sufficient to sustain the conviction despite these procedural objections. The Court dismissed the appeal, holding that police officials are competent witnesses whose testimony cannot be discarded without proof of malafide or ill-will. Furthermore, the Court clarified that the requirement of Section 103 of the Code of Criminal Procedure 1898 regarding public witnesses is not absolute, and failure to comply does not automatically render a search illegal. The Court affirmed that in the absence of established enmity or misconduct, the prosecution's evidence, even if solely from police officials, is sufficient to support a conviction for heinous offences like narcotics trafficking.
- Is the testimony of police officials sufficient to sustain a conviction in the absence of independent public witnesses?
- Does the failure to associate public witnesses during a recovery process render a search illegal under Section 103 of the Code of Criminal Procedure 1898?
- Does a delayed receipt of a Forensic Science Laboratory report automatically vitiate a criminal trial?
- Section 9(a), Control of Narcotic Substances Act 1997
- Section 3, Prohibition (Enforcement of Hadd) Order 1979
- Section 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 340(2), Code of Criminal Procedure 1898
- Section 103, Code of Criminal Procedure 1898
Shahji Rahman Khan, J.--This criminal appeal is directed against the judgment dated 3/11/2007 passed by the learned Additional Sessions Judge-IV D.I.Khan, whereby the appellant, Muhammad Ismail has been convicted under Section 9(a) CNSA and sentenced to six months R.I. with fine of Rs, 3000/-, or in default to undergo one month simple imprisonment.
2. On the complaints of residents of the locality that the appellant was secretly selling heroin in the deserted place of his house after `Eisha', Muhammad Hussain Khan SHO of Police Station Cantt. D.I.
Khan alongwith police party had raided his house and he was found in possession of heroin packed in different `purries'. He was, therefore, arrested and booked for an offence under Sections 3/4 of Prohibition (Enforcement of Had). Order 1979 vide case FIR No,123 dated 22/3/2005 of Police Station Cantt. D.I. Khan.
3. After completion of investigation,, the accused was forwarded to the Court for trial where he did not plead guilty to the charge and claimed trial. He, however, neither pleaded guilty nor opted to be examined on oath under Section 340(2) Cr.P.C.
4. In order to prove its case, the prosecution examined three witnesses whereafter statement of the accused was recorded. The learned trial Judge after hearing arguments of learned counsel for the parties passed the impugned judgment.
5. Learned counsel for the a appellant put forth two fold arguments; Firstly that the appellant was falsely involved in the case as Members from the public were not associated in the recovery process and Secondly that the delayed receipt of FSL report has vitiated the trial, therefore, the impugned judgment is not sustainable. Reliance was placed on the judgments reported as PLJ 1989 FSC 87 and PLD 2005 Karachi 146.
6. The learned Deputy Advocate General, however, resisted the appeal on the ground that the appellant was found red-handed alongwith the heroin and the offence being heinous in nature, he is not entitled to any leniency.
7. After considering the arguments advanced at the bar and going through the record, we found that the appellant was caught red-handed by the police party while dealing in the business of heroin. No malafide or ill-will was established against the complainant/SHO or police party to falsely implicate him in the case. In the given circumstances, the delayed receipt of FSL report would make no difference so as to interfere in the impugned judgment and to acquit the appellant from the charge. The facts and circumstances of the authorities referred to and relied upon by the learned counsel for the appellant are quite distinguishable from the facts and circumstances of case of the appellant. The offence is of heinous nature which destroys the whole society.
8. It was held in the case reported in MLD 2004 Page 200 that police officials are as good witnesses as other public unless any malafide is established against them. Deposition of police officials cannot be brushed aside simply on the bald allegation that they belong to the police department.
The requirement of Section 103 Cr.P.C. is not absolute in the sense that failure to comply with it will make the search illegal. In the instant case, the convict/appellant having failed to establish any malafide, enmity or mis-conduct in the investigation, the evidence brought on record by the prosecution is to be relied upon. Therefore, the learned trial Judge has rightly convicted and sentenced the appellant through the impugned judgment which is based on correct appreciation of evidence brought on record.
8. Consequently, we find no substance in this appeal which is hereby dismissed.