NAZEER AHMED vs THE STATE

' ALI SAIN DINO METLO, J.---Appellant Nazir Ahmed Lashari has challenged the judgment dated 6-3- 2007 passed by Sessions-cumSpecial Judge for the Control of Narcotic Substances, Sukkur. (Syed Faiz Ahmed Rasool Rashdi), whereby he was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (C.N.S. Act) and sentenced to undergo imprisonment for life and to pay fine of Rs,200,000 or in default of payment of fine to suffer imprisonment for one year more.

2. Briefly, the facts are that on 1-12-1997, Inspector Sher Ali Shah Sherazi of Anti-Narcotic Force (ANF), Sukkur received spy information that the appellant and Abdul Sattar Shah (acquitted by the trial court) were coming from Jacobabad by a wagon along with a big quantity of narcotics for delivery to a party on Military Road, in front of Public School, Sukkur. He, therefore, proceeded to the pointed place, along with his staff, intercepted the wagon and arrested the appellant and Abdul Sattar Shah at 11-00 a.m. The appellant was having a bag containing four pac4kets of heroin, each weighing one kilogram and four packets of opium, each weighing one kilogram. Samples weighing 10 grams were taken from each packet for sending to the Chemical Examiner. Such memo of arrest and recovery prepared by the Inspector was attested by his constables Muhammad Qasim and Abdul Razzak. The Inspector registered the F.I.R. At Police Station ANF, Sukkur, on the same day, at 12-00 noon, and on the same day, at 1500 hours, he recovered two packets of heroin, each weighing one kilogram and three packets of opium, each weighing one kilogram, from the house of the appellant situated in First Family Line, S.P. House road, Jacobabad, situated at the distance of about 80 kilometers from Sukkur. Samples weighing 10 grams were taken from each packet. Such memo of recovery was also attested by the same constables. The Chemical Examiner confirmed that the material was heroin and opium.

3. On the completion of investigation by the same Inspector, the charge-sheet was filed in which one Saifuddin Brohi, resident of Mustung, Balouchistan, was also shown as an absconding accused.

According to the Investigating Officer (Inspector Sher Ali Shah Sherazi), the narcotics belonged to Saifuddin Brohi. However, the latter could not be arrested and was, therefore, declared as absconder.

4. At trial, prosecution examined Inspecort Sher Ali Shah Sherazi (P. W . 1), Muhammad Qasim (P.W.2) and Imtiaz Ali (P.W.3). The appellant as well as Abdul Sattar Shah did not produce any evidence in their defence. The trial Court acquitted Abdul Sattar Shah and convicted and sentenced the appellant as above.

5. The appellant and the acquitted accused were arrested in a thickly populated area from a passenger wagon but none from the passengers or from the crew of the wagon or from the persons available there has been cited as witness. Even their names have not been disclosed and no plausible explanation has been given for excluding them. The provisions of section 25 of the C.N.S. Act, which have been overemphasized by the prosecution, do not authorize an investigating officer of police or of such other force to exclude independent witnesses. It does not do away with the principle of producing the best of available evidence.

6. Under section 25 of the C.N.S. Act, applicability of section 103 of the Code of Criminal Procedure 1898 (Cr.P.C.), has been excluded in making searches and arrests in respect of narcotics. Section 103 Cr.P.C. Enjoins the officer or other person, who wants to make search of a place, to call upon, before making the search, two or more respectable inhabitants of the locality to attend and witness the search. The purpose, according to the unanimous opinion of the superior Courts, is to prevent chicaneries of police.

7. While keeping the provisions of section 103, Cr.P.C., which are undoubtedly salutary, intact for searches in respect of all other things, the legislature considered it expedient to do away with the requirement of calling upon the respectable persons to attend and witness search in respect of narcotics. Thus, the provisions of section 25 of the C.N.S. Act are a departure from the general law of the land and appear to be out-come of an expediency so as to give a free hand to police and other forces while dealing with cases involving narcotics.

8. By excluding applicability of section 103 of Cr.P.C. In narcotic cases, the legislature has not conferred any additional or extra sanctity upon the officers of police or such other forces. It has not made them more reliable. Indeed, as it has been rightly observed by a Division Bench of this Court, in the case of Ali Hassan v. The State, reported in PLD 2001 Karachi 369, 'man cannot be made moral through legislation'. The effect of section 25 of the C.N.S. Act will be that evidence of a police officer regarding recovery of a narcotic substance cannot be discarded only on the ground of non- compliance of section 103, Cr.P.C. In another case, re Pir Bux v. The State, reported in 2007 MLD 1696 (Karachi), it was observed that notwithstanding the non-applicability of section 103, Cr.P.C. In the cases of narcotics, the officers making searches, recoveries and arrests are required to associate private persons, more particularly in those cases in which their presence is admitted so as to lend credence to such actions and to restore public confidence.

9. In the present case the Inspector excluded everybody else to act as witness and made only two of his constable of trust as witnesses of the alleged recoveries at both the places i.e, at .Sukkur as well as at Jacobabad. Surprisingly, both the constables did not support the prosecution case. One, namely, Muhammad Qasim (P.W.) was examined and he did not support the prosecution case and was declared hostile; while the other, namely, Abdul Razzak, was given up on the ground that he too was not supporting the prosecution.

10. The prosecutor, in order to fulfil the formality of examining at least two witnesses in support of the prosecution, examined constable Imtiaz Ali who was neither cited as witness in the charge- sheet nor his statement was recorded by the Investigating Officer under section 161, Cr.P.C.

Omission to record his statement under section 161, Cr.P.C. Creates a serious doubt about his presence at the time of alleged recoveries. His evidence was also recorded after about three months of recording complainant's evidence. As a matter of principle witnesses on a point, such as recovery, are required to be examined on the same day so that one may not be able to know the answers given by the other in cross-examination. Thus, in absence of his 161, Cr.P.C. Statement and recording of his evidence much after recording complainant's evidence, the appellant was deprived, to some extent, of his right of effectively cross-examining him. No weight can be given to the evidence of such witnesses, particularly when he is subordinate of the complainant.

11. The explanation given by Imtiaz Ali (P.W.3) that the independent persons available there were not cited as witnesses in the case because they were not willing to give evidence cannot be accepted as valid excuse for excluding them.

12. Justice is to be done not only in Courts. Every person, particularly the one who is entrusted with public power, is required to do justice at his level. An officer of police or such other force, invested with enormous powers, is also obliged in law to do justice and conduct investigation fairly and independently. He is required to collect and preserve all the relevant evidence, even if it be favourable to an accused.

13. An officer, who is himself complainant in the case, cannot be excepted to collect and preserve evidence, which goes against his case. He cannot properly perform duties of an independent and fair investigating officer. It is, therefore, that the superior Courts have never approved the practice of complainant police officers acting as Investigating Officers.

14. According to para. 3 of rule 25.2 of Police Rules, 1934, it is the duty of an Investigating Officer to find out the truth and his object shall be to discover the actual facts and for the achievement of such object he shall not commit himself prematurely to any view of the facts for or against any person.

15. In the case of the State v. Bashir and others, reported in PLD 1997 SC 408, the Supreme Court, referring to the above Police Rule observed.

"It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and lodges an F.I.R. Against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the police party. As observed Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules."

16. The Supreme Court directed the Ministry of Law, Justice and Parliamentary Affairs, Islamabad and also the Interior Division of the Federal Government as well as the heads of the Investigating Agencies to issue instructions and see that such officers do not act as Investigating Officers and some other officers are assigned the duty of Investigating Officers in such cases. In order to achieve to objects of impartiality and fairness in investigation, the legislature, by promulgating the Police Order, 2002, separated the investigation branch from operation and other branches of police.

17. The observation of the trial Court that Muhammad Qasim (P.W.2) being no more in the service of ANF could be won over by the accused for monetary considerations, is unwarranted. Credibility of a person cannot be linked with his active service in police or such other force. Those who are not in such service are also respectable. As it appears from the deposition of the witness, Muhammad Qasim, after leaving the service of ANF, had joined and was serving in the Airport Security Force.

18. Nothing has come in evidence to show that the other attesting Witness, namely, Abdul Razzak, was dismissed from service. The bare statement of the prosecutor in that regard may not be sufficient to establish such fact as it does not have any evidentiary value.

19. In an unreported judgment passed on 14-9-2006 in Criminal Appeal No,D-11/01, a Division Bench of this Court had acquitted appellant Pervez Ahmed of a similar charge on the ground that out of the two attesting witnesses of the memo of recovery one had supported and other had not supported the prosecution case. The judgment was cited before the trial Court but no reason was assigned for not following it.

20. The only reason which seems to have prevailed upon the learned Special Judge in convicting the appellant is that the appellant has failed to establish his enmity with the Inspector, who was not likely to involve an innocent person in such a heinous offence. The answer lies in the impugned judgment itself, according to which, acquitted accused Abdul Sattar Shah was involved without any evidence against him. If he can involve one falsely, there can be no guarantee for the other.

Instances of substitution and planting are not lacking. Burden is upon the prosecution to prove the charge against an accused beyond reasonable doubt and not upon an accused to prove his innocence. Law presumes an accused innocent till proved guilty. It does not presume an accused guilty till proved innocent.

21. Learned counsel for the appellant pointed out certain discrepancies in taking samples, delay in sending them to chemical examiner, and the report of the Examiner, but in presence of the above mentioned big defects in the prosecution case, they loose their importance and we do not consider it necessary to dilate upon them.

22. In view of the above mentioned facts and circumstances, particularly where the seizing officer excluded the independent persons to act as witnesses of arrest and recovery and chose two of his subordinates to act as the attesting witnesses, who too did not support the prosecution case, and the seizing officer himself acted as the Investigating Officer and the trial Court, finding him innocent, acquitted one of the two persons sent for trial, it will not be safe to maintain conviction and sentence of the appellant. He is, therefore, entitled to the benefit of doubt and consequent acquittal.

23. It was for these reasons that by a short order passed and announced on 13-10-2008, the appeal was allowed, the conviction and sentence of the appellant were set aside and he was acquitted.