ZEB-UL-HARAM Versus THE STATE

TANZIL‑UR‑REHMAN, C.J. -----This appeal arises out of the judgment dated 31‑3‑1990 passed by Sessions Judge, Attock in Hudood Case No.32 of 1990 convicting the appellant under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 for having been found in possession of two Kilogram of heroin at Excise Check Post Mullan Mansoor, Police Station Attock Khurd and sentencing her to four years' R.I. and fine of Rs.2'000 or in default to undergo R.I. for a further period of four months.

2. The facts, briefly stated, are that on 21‑11‑1989, the appellant was travelling in a coaster van (No.2105‑KTA) coming from Peshawar side. The said van stopped at the Excise Check Post Mullan Mansoor at about 10‑30‑a.m. and its interior was checked by the Excise Lady Constable Shahnaz Bibi. The appellant was found having a shopping bag in her lap. The Lady Constable got suspicion and asked her to alight from the van. The said shopping bag was searched and it was found that there were two cloth bags in the shopping bag and in each cloth bag there were envelopes of paper and polythene containing heroin. The envelopes were weighed and found to be of 1000 grams each. Five grams were taken out from each packet and a sample of 10 grams was prepared and sealed. On personal search of the appellant a sum of Rs.30 was recovered. Necessary recovery memos. were prepared and attested. The Assistant Excise and Taxation Officer Attock, who was supervising the operation, lodged a complaint alongwith recovery memos. and the case property, and also handed over the appellant to the Police Check Post Attock Khurd. On receipt of memos. and case property the Sub‑Inspector remitted the same to the Police Station through constables. Sanaullah, ASI, drew up the F.I.R. Dost Muhammad, Sub‑Inspector, proceeded to the Excise Check Post, inspected the site and prepared the sketch and recorded the statements of P.Ws. and entrusted the case property to Sanaullah, ASI, Moharir for further custody and also caused formal arrest of the appellant. On 22‑11‑1989 the Moharrir Sanaullah handed over the sample parcels to Shamsher Khan, Constable who delivered it intact the same day in the office of the Chemical Examiner. On receipt of Chemical Examiner's Report and on completion of investigation the S.H.O. presented the challan and the appellant before the Sessions Judge to face the trial.

3. The prosecution has examined in all five witnesses. P.Ws 1‑3 namely Shamsher Khan, Constable, Dost Mohammad, Sub‑Inspector and Sanaullah Assistant Sub‑Inspector are formal witnesses. P.Ws.4 and 5 namely Mst. Shahnaz Bibi, Lady Excise Constable and Niaz Hayat, Assistant Excise and Taxation officer are the main witnesses. P.W.4 Mst. Shahnaz Bibi Excise Constable Check Post Mullan Martsoor inter alia stated in her evidence that on 21‑11‑1989 she was present at the Excise Check Post Mullan Mansoor alongwith P.W.5 Nia4 Hayat, Assistant Excise and Taxation Officer and other constables. At about 10‑30 a.m. there came a coaster van (No.2105‑KTA) which stopped on the Check Post. She entered into the van for purposes of checking. On the front seat parallel to the driver's seat the appellant was sitting. The appellant was holding a shopping bag in her lap. On account of suspicion she asked her to get down from the coach alongwith the bag. The said bag was searched under orders of P.W.5. There were two small bags in the said shopping bag of paper arid polythene envelopes. On opening each of them was found containing heroin which weighed 1000 grams each, the total weight being 2000 grams 2 kg. Five grams were taken from each envelope and sample parcel of 10 grams was prepared and sealed. The remaining bulk was also made into sealed parcel as originally existing. The two polythene/paper envelopes were put in the same shopping bag and were wrapped in cloth. A sealed parcel of the entire bulk was prepaid and sealed through memo Ex.PD, (marked in Court as Ex.P.1). The, appellant was also personally searched and three currency notes of value of Rs.10 each were recovered which amount was secured through merAo. Ex.PC (marked in Court as Ex.P.2/1‑3).

4. P.W.5 Niaz Hayat, AETO, Attock City, inter alia deposed that on 21‑11 1989 he alongwith Shahnaz Bibi (P.W.4), Muhammad Pervaiz and other constables, was present at the Excise Check Post, Mullan Mansoor. At about 10 30 a.m. a coaster van (No.2105‑KTA) come from Peshawar side. Under his direction P.W.4 checked the interior of the van and the appellant was asked to come down with the shopping bag. The bag was searched and there were two small bags under the shopping bag which contained 1000 grams of heroin each. The appellant was apprehended. Three currency notes of Rs.10 each, on personal search, were also recovered. Memos were prepared which were attested by P.W.5. He more or less stated the same facts as that by P.W.4. He further stated that he drafted the complaint and alongwith the memos. of recovery and the appellant as well as the case property were conveyed to Police Station concerned for registering the case against the appellant.

5. Mr. Baslur Ahmad Kiyani learned counsel for the appellant contented that there was a male passenger who was carrying heroin. The said passenger was carrying a shopping bag containing contraband. The excise officials after some bargaining with the said male passenger let him go and the appellant was made escape goat and the two kilograms of heroin was foisted on her. The contention seems to be baseless. P.W Shahnaz Bibi has clearly stated in her evidence that the appellant was occupying the front seat parallel to the driver's seat with a shopping bag in her lap. She was the only female passenger in the van. This created suspicion in her mind and the appellant was asked to get down from the van and was subjected to search on the road side in the presence of Excise and Taxation Officer and other staff members. Her presence in the van and her search is admitted by her inasmuch as that according to her a sum of 88.150 was taken out from her pocket instead of Rs.30. So far as the recovery of heroin is concerned there is no iota of evidence that the same was planted on her. Admittedly the appellant was not previously known to the Excise Staff and there existed no animosity against her. The van proceeded on its way after 5/6 minutes after the appellant stepped down. It appears that the appellant was acting as a carrier for some other person.

6. The learned counsel further submitted that P.W.4 was not the lady constable. Another lady constable was present at the Check Post. The submission is without any force. Two memos. of recovery were signed by P.W.4. There is no other lady constable in the department except P.W.4 as stated by P.W.5.

7. The learned counsel further contended that no witness from the public was examined although there were about twelve other persons in the van. It is true that there were about a dozen of passengers in the van and no passenger was examined in the case but the explanation given by the P.W.5 Niaz Hayat seems to be plausible. The members of the public decline to be witness in such cases and even if there had been any other private person he, too, would have refused to be a witness. The difficulty in having witness from public can very well be appreciated as the narcotic trafficking is being carried on in the world in a most organized manner and if any member of the public chooses to come forward as a witness to the process of recovery or appears in the Court to depose against the person charged against, he runs the risk of his life and property and sometime of his family members too.

8. The learned counsel for the appellant, then, took a legal objection that the evidence of the witnesses has been recorded on solemn affirmation whereas they, being Muslims, their evidence should have been recorded on oath. Reference was made by the learned counsel to section 6 of the Oaths Act, 1873 as amended in 1981. The said section reads as under:‑

Oath by a Muslim or by a non‑Muslim who has no objection-‑‑‑(1) Where the witness or interpreter is a Muslim he shall make an oath.

(2) Where the witness or interpreter is not a Muslim, he shall make an oath or, if he has au objection to making an oath an affirmation."

9. Reliance was placed by the learned counsel on Badar‑ur‑Zaman v. The (PLD 1987 FSC 9) wherein a Division Bench of this Court observed that:

"No oath was administered to P.W.3 (Ch. Hassan Akhtar). The question before the Court is as to what evidentiary value should be attached to the evidence of a competent witness, whose evidence has been recorded without oath having been administered to him."

It was thus observed that:‑---

It would, therefore, be clear that no judicial proceeding can be conceived in which evidence of a witness is recorded without oath unless he is unable to understand the implication of oath by reason of tender age or otherwise. Even the accused person is required by section 340(2), Cr.P.C. to be examined on oath in his defence. Hence it is mandatory on the part of a judge holding a judicial trial to record evidence of a witness on oath, if the witness is competent and understands the implication of oath. Ch. Hassan Akhtar, ASI, is presumed to be a competent witness who fully understood implication of the oath. This being the case, evidence of Ch. Hassan Akhtar is to be ignored while considering the prosecution allegations against the appellant."

Learned counsel also placed his reliance on a judgment Abdur Rehman v. The State (1988 PCr.LJ, page 2347) by a learned Single Judge of the High Court of Sindh, wherein the proceedings under sections 181, 182, and 193 Cr.P.C. 1898 were quashed on account of filing a false affidavit with regard to allegation against the Presiding Officer of Court in a transfer application. The learned Single Judge referring to the provisions of section 6 of the Oaths Act, 1873 observed that since the affidavit filed by the petitioner was not sworn on oath, although he was a Muslim, the charge under section 193 cannot be established against the petitioner.

11. On the other hand, learned counsel for the State Khan Mushtaq Ahmad Khan submitted that the disregard of section 6 of the Oaths Act is a mere irregularity. Reliance was placed by him on a Division Bench judgment reported as Haji Hamal and others v. The State 1986 PCr.LJ Quetta 1121 wherein it was observed that :----

No doubt under section 5 of the Oaths Act, 1873 all witnesses whose evidence is to be recorded by or before any Court are to state on oath or solemn affirmation but it has also been provided in section 13 of the said Act that no omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission substitution or irregularity took place or shall affect the obligation of a witness to state the truth .The failure by the learned trial Judge to record the evidence on oath or solemn affirmation had not, therefore, made any difference. The evidence has not become invalid. The mere irregularity stands cured by the aforesaid provisions of section 13 of the Oaths Act.

Reliance was also placed on Full Bench judgment of this Court reported as Shah Nawaz v. The State ‑P L D 1986 FSC 242 at p. 246. Fakhre Alam, J. who delivered the judgment, observed that:‑‑

It is a fact that the statements of the witnesses were recorded on solemn affirmation and not on oath as required by the amended Oaths Act, 1873. Amended section 6 of the Oaths Act lays down that where the witness is a Muslim, he shall make an oath.

Referring to provision of section 13 of the Oaths Act, it was held that "the evidence on solemn affirmation instead of oath would not invalidate the proceedings.

12. It appears that in the first cited Division Bench judgment of this Court the provision of section 13 of the Oaths Act was not referred to. In fact, the learned counsel for the appellant also conveniently ignored the provision of section 13 and did not bring the same to our notice. In the instant case, the statements of five witnesses were recorded on "solemn affirmation" instead of "oaths". According to section 6 of the Oaths Act, 1873 as amended by Ordinance No.XXVII of 1981 where a witness or an interpreter is Muslim, he shall take oath. But according to section 13 of this Act the proceedings and evidence shall not be invalidated by the omission of oath as it is merely an irregularity. In view of the law laid down by a Full Bench of this Court, as referred to above, no valid objection can be taken to the admissibility of the above evidence. It may, however, be observed that in these days when falsehood is rampant in the society and it has become very difficult to have truthful witnesses trial Courts should be conscious of the change of the rule of taking evidence on oath as embodied in section 6 of the Oaths Act, to obtain sanctity and high measure of evidentiary value, for public good.

13. According to Islamic Law the oath shall be taken by a defendant/accused when he denies the right/charge of the claimant/complainant in civil cases as well as criminal cases liable to ta'zir and relate to the rights of individuals. This is based on a hadith of the Holy Prophet (p.b.u.h.) who said "if men were to be granted what they claim, some will claim the properties and lives of others. But proof is on the claimant and the oath is on the one who denies". According to another Hadith the Holy Prophet allowed taking oath from the claimant in a civil case when he has only one witness in favour of his claim. But in case of Hadd oath shall not be taken by the accused or complainant at all. Similarly in ta'zir relating to the rights of Allah, oath shall not be taken from the accused or the complainant. Moreover, in case of Qasamah oath will be taken from fifty persons of the locality where a murdered person is found and his murderer is not known. (AI‑Mughni, Ibn Qudamah, Vol.XII, pages 135‑142). Regarding taking oath from the witness it was not in practice in the early (1ay of Islam. But when the people became unreliable in the later period, the jurists allowed to take oath from the witness when the Court deemed it fit in the circumstances of a case. Qazi Shuraih used to take oath from the witness when there was any suspicion in his evidence. Ibn Hazm has related from Ibn Wazah that he was in favour of taking oath from the witnesses due to changed social conditions of the people in his period. It has also been related on the authority of Abu Haris that Imam Ahmad bin Hambal was asked about a witness bearing bad character, he said "take oath from him" (Nazriyyah al-Ithbat fi al‑Fiqh al‑Jinai al‑Islami by Ahmad Fathi Bahnasi page 87). The Oazi may, take oath from the complainant, the witnesses and the accused in the same case if he deems necessary. (Mu'inul Hukkam, Ali Ibn Khalil Tarablasr, page 77).

14. It is pertinent to mention here that according to Verse 106 of Surah Al Nlaidah, the Holy Qur'an has laid down taking oath from the non‑Muslim witnesses when they testify to a will of a Muslim during a journey if there is any suspicion. From this the jurists have derived that when there is any suspicion about the evidence of a witness whether Muslim or non‑Muslim, oath should be demanded from him. Hazrat Ali used to take oath from the accused and the witnesses. Ibn Qayyam has related from many earlier Qazis and Jurists that they used to take oath from the witnesses. (Al‑Turuq al‑Hukamiyyah, Cairo, 1953, pages 147‑148). According to section 1727 of the Majellah, "if the defendant insists that oath should be taken front the witness and there are grounds for that, the court shall take oath from the witness and if he denies, his evidence will not be accepted." In fact, according to the Hanafis the witness must I first utter the word "Ashhadu" while deposing before the Court. The word "Ashhadu" carries with it the meaning of oath.

14‑A. It us thus concluded from the above discussion that according to Islamic Law oath is not to be taken by the witness and his evidence without taking oath is admissible if it is otherwise admissible. He is to first utter the word "Ashhadu" while deposing before the Court. However, if the Court deems it necessary, in the circumstances of a case, it may take oath from the witness. But the omission to administer oath or its substitution by solemn affirmation will not invalidate the evidence except in certain cases e.g. when it is a case of "oath of i denial" or Qasamah.

15. The learned counsel for the appellant lastly contended that the appellant, as a Pushto‑knowing lady and the interpreter appointed by the Court was not administered any oath. This contention too has no force. The provisions of sections 6 and 13 also apply to interpreter. The rule laid down by the Full Bench of this Court with regard to the admissibility of the evidence of the witness who is either not administered any oath or the statement was recorded on a solemn affirmation will be fully applicable to an Interpreter also. In the instant case the Court who was appointed by the learned Sessions Judge as interpreter knew, Pushto, Urdu and English languages. In fact, at the end of every statement it has been certified by the learned Trial Judge that the above statement was explained to the appellant through the Interpreter in Pushto and she heard and understood the same. It is also significant to note that the appellant has cross‑examined at length P.Ws. 2, 4 and 5. It cannot, therefore, be said that non‑taking of oath by the Interpreter has caused any prejudice to the appellant or has resulted in failure of justice. Furthermore the explanation to section 537 of the Cr.P.C. lays down that in determining whether any error, omission or irregularity in any proceeding under the Cr.P.C. has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Here, no objection to the non‑giving of oath to the Interpreter was taken at the trial stage. Even otherwise, it cannot be said to have occasioned a failure of justice so as to make out a case for remand, as requested by the learned counsel.

16. A notice for enhancement of sentence was issued by this Court but at the time of hearing it was found that the learned trial Judge, in view of the fact that the appellant was widow having eight daughters, eldest being a teen‑ager, who used to be present with her mother in the Court would be left without any subsistence and protection, awarded four years' R.I. which seems to be a proper exercise of judicial discretion with which we do not feel inclined to interfere. The notice for enhancement of sentence is, therefore, discharged. The appeal is dismissed. Conviction and sentences as well as fine are maintained. The benefit of section 382‑B, Cr.P.C. is also maintained.

M.BA./561/F.S.C. Appeal dismissed.