QASIM Versus RAHIM SHAH
Muhammad Akbar (appellant) was under arrest in case F. I. R. No. 193 of 1993 under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The case was being investigated by Naveed Ikram, S.I./S.H.O. of the police station. During interrogation of case F.I.R. No. 193 of 1993, Muhammad Akbar disclosed that about 2 months ago he had brought one kilogram heroin and one kilogram opium from Qamar Masani (District Mianwali), that he had sold 250 grams heroin and 200 grams of opium to Rab Nawaz and his companions for a sum of Rs. 24,000 and that the remaining heroin and opium weighing 750 grams heroin and 800 grams opium was lying in his official box alongwith weighing scale and bats which he can get recovered. He had made this disclosure in the presence of Muhammad Ashraf H.C. and Muhammad Munir, A.S.I. Thereafter, he led the police party to the barrack and pointed out his box. The lock of the box was opened, on search of the box, 750 grams of heroin, 800 grams opium, a weighing scale, three weight measures a plastic spoon, a rubber band and a sum of Rs. 25,300 were recovered. All these articles were taken into possession vide recovery Exh. P.A. which was signed by the above-named police officials. The wearing clothes of the accused were also lying in the box but they were not taken into possession.
Naveed Warn, S.I./S.H.O. recorded complaint Exh. P.B., and sent the same for registration of the case to S.H.O. Police Station Civil Lines Bahawalpur.
It may be mentioned here that building of the police station Baghdadul Jadeed is situated in Bahawalpur city which falls in the area of Police Station Civil Lines Bahawalpur and it was for this reason that instead of registering the case at police station Baghdadul Jadeed complaint was sent for registration of the case to S.H.O. Police Station Civil Lines Bahawalpur.
2. Naveed Ikram, S.I./S.H.O. Baghdadul Jadeed before despatching the statement, had not only prepared Exh. P.A., but had also recorded the statement of Muhammad Ashraf, H.C. (P.W.1) and Muhammad Munir, A.S.I. (P.W.2) who had witnessed the recovery. Jam Muhammad Aslam, S.H.O. Police Station Civil Lines recorded the statement of Liaqat Ali Moharrir Head Constable Police Station Civil Lines and Muhammad Iqbal F.C. who had transmitted the parcels of heroin and opium to the office of the Chemical Examiner Multan and submitted complete challan to the Court, on receipt of positive report Exh. P.D., from the office of the Chemical Examiner (incomplete challan had been submitted earlier.
3. The learned Trial Magistrate after recording the statements of six P.Ws. and the statement of the accused under section 342, Cr.P.C. convicted Muhammad Akbar accused under Article 4 of the Prohibition Order and sentenced him to undergo rigorous imprisonment for four years plus to pay a fine of Rs. 10,000 in default whereof to suffer six months S.I. He was also awarded two stripes.
The convict has filed appeal.
It may be noted here that the accused was serving as a constable at the time of occurrence and was posted at Police Station Baghdadul Jadeed.
4. Muhammad Ashraf, H.C. Police Station Baghdadul Jadeed while appearing as P. W.1 stated that Muhammad Akbar during investigation of case No. 193 of 1993 by Naveed Ikram, S. I. /S. H. O. had made a disclosure within the premises of the police station, in his presence and in presence of Muhammad Munir, A.S.I. that about 2 months ago he had brought one kilogram heroin and one kilogram opium from Qamar Masani District Mianwali and that out of the same he sold 250 grams heroin, 200 grams opium against a sum of Rs. 24,000 and that the remaining opium and heroin i.e. 750 grams and 800 grams respectively are lying in his official box alongwith a sum of Rs. 23,500, a weighing scale and bats, which he can get recovered. He further stated that the accused got recovered from his official box lying in the barrack, 750 grams heroin, 800 grams opium, a sum of Rs. 25,300, weighing scale and bats. During cross-examination he stated that 8/10 other police constables were also staying in the barrack where the box of the accused was lying but none of them was present at that time. He stated that the accused was arrested in the other case on the same day. He denied the suggestion that one Mithu Qasai had been arrested before the arrest of the accused and that the recoveries were effected from him and that he was let off on receipt of a bribe of Rs. 2 lac on which the accused had objected violently and on being annoyed Naveed Ikram involved him in this case. He also denied the suggestion that nothing was recovered from the accused.
Muhammad Munir, A.S.I. P.W.2 corroborated the statement made by P.W.1
Naveed Wain, S.I./S.H.O. who had arrested the accused appeared as P. W.
3. He corroborated the statements made by P. W .1 and P. W .2 during examination-in-chief. During cross-examination he stated that in Case No. 193 of 1993, apart from Muhammad Akbar one Rab Nawaz and others were also arrested, one of the accused in that case had disclosed during investigation that heroin recovered in this case had been purchased from Akbar. He expressed inability to give the name of the accused who had made that statement but offered that he can do so after examining the record. He stated that although no recovery was effected from Muhammad Akbar in that case but he was also challaned as evidence was available against him also. He stated that he had investigated this case as the accused was arrested within the premises of Police Station Baghdadul Jadeed. He gave out that at the time of arrest of the accused, the later was not in uniform. He stated that he did not remember that he had arrested one Mithu Qasai in some narcotic case. However, he denied the suggestion that he had arrested him and let him off after taking bribe. He denied the suggestion that on letting off Mithu Qasai, after receiving bribe, Muhammad Akbar had objected, violently and that he had involved him in this case due to that. He denied the suggestion that nothing had been recovered from Muhammad Akbar and that whole proceedings were fake.
Liaqat Ali, H.C. who was serving as Moharrir Police Station Civil Lines and had registered this case on receipt of complaint from Naveed Ikram S.H.O. appeared as P.W.4 and verified that fact. He also stated that he had despatched two parcels of heroin and opium which were lying in the Malkhana of the Police Station Civil Lines to the office of the Chemical Examiner Multan. He stated that so long, parcels had remained with him no body had tempered with them. During cross-examination he stated that S.H.O. of the police station had arrived after the registration of the case and he had sent the file to the S.H.O., Police Station Baghdadul Jadeed after getting permission from his S.H.O. He stated that case property was received at the Police Station (Civil Lines) on the same day after receipt of the complaint. He stated that the parcels were despatched to the office of the Chemical Examiner on 11-6-1993 and the reason for delay was that no constable was available due to special duty.
Muhammad lqbal F.C. who had been entrusted the parcels of this case for transmission to the office of the Chemical Examiner appeared as P.W.6 and verified that fact.
Jam Muhammad Aslam, S.I. who was S.H.O. Police Station Civil Lines during the investigation of this case appeared as P.W.5. He stated that he had recorded the statement of Liaqat Ali and Muhammad Iqbal P.Ws. under section 161, Cr.P.C. and had submitted a complete challan to the Court. During cross-examination he stated that although case was registered at Civil Line but as recoveries had been effected by Naveed Ikram, S.I./S.H.O. Police Station Baghdadul Jadeed. He had investigated the case. He expressed inability to state whether he (Naveed Ikram) had obtained permission from any superior police officer for investigating the case.
The appellant in his statement recorded under section 342, Cr.P.C. had denied the prosecution case and pleaded innocence. He stated as follows, in answer to the question, would you like to say anything else:--
He declined to make statement on oath under subsection (2) of section 340, Cr.P.C. and did not produce any evidence in defence.
5. Learned counsel for the appellant after going through the evidence criticized the impugned judgment and contended hat Naveed Ikram, S.I./S.H.O. could not have investigated this case as the occurrence had taken place within the area of Police Station Civil Lines, in that regard he referred to Rule 1, Chapter 25 of the Police Rules.
Learned counsel contended that the appellant was involved falsely by Naveed Ikram, S.I./S.H.O., as he had annoyed him by objecting to the release of one Mithu Qasai after receiving bribe, that all the recovery witnesses in this case were police officials and so they cannot be relied upon and that as the parcel was sent to the office of the Chemical Examiner after 14 days no reliance can be placed about the authenticity of the result from the office of the Chemical Examiner as possibility of substitution of the parcel was there, In this regard learned counsel placed reliance on 1994 P Cr. L J 2405.
Learned counsel for the State defended the judgment and submitted that the prosecution had proved the case beyond any shadows of doubt.
6. Police Rule 1 of Chapter 25 reads as follows:--
"25.1. Power to investigate .--(1) An Officer-in-Charge of a police station is empowered by section 156, Criminal Procedure Code, to investigate any cognizable offence which occurs within the limits of his jurisdiction.
(2) He is also empowered under section 157(1), Criminal Procedure Code, to depute a subordinate to proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offenders. Any Police Officer may be so deputed under this section, but where a police officer under the rank of Assistant Sub-Inspector is deputed the investigation shall invariably be taken up and completed by the officer-in-charge of the police station or an Assistant-Sub-Inspector at the first opportunity.
(3) An officer-in-charge of a station shall also render assistance whenever required to all officers of the Criminal Investigation Department working within his jurisdiction."
According to sub-rule (2) of Rule 1 the S.H.O. can depute any subordinate to partly investigate the case. Sub-rule (2) says that "any police officer may be so deputed under this section, but where a police officer under the rank of Assistant Sub-Inspector is deputed the investigation shall invariably be taken up and completed by the officer-in-charge of the police station or an Assistant Sub-Inspector."
7. In the case in hand the accused was serving at Police Station Baghdadul Jadeed. He had been arrested in Case F.I.R. No. 193 of 1993, that case was being investigated by Naveed Ikram, S.I./S.H.O. Police Station Baghdadul Jadeed. It was during investigations, of that case, that the accused had been made disclosure and got recovered heroin, opium and other articles from his box lying within the premises of the said police station. Obviously for that, S.H.O. was not supposed to call any police officer from any other police station, even otherwise any police officer above the rank of A.S.I. can arrest, anybody committing any offence and can take into possession anything unlawful, found in possession of any person. If the person so arrested offers to lead to recovery of anything unlawful from any place the police officer can get that recovered and take the same into possession.
Naveed Ikram, S.I./S.H.O. had exactly done the same thing in this case. He had taken into possession only, the articles, which the appellant had offered to get recovered. In doing so he was supposed to record the proceedings. The recovery memo prepared by him, the statements of the witnesses recorded by him under section 161, Cr.P.C. and the complaint drafted by him and the same sent for registration of the case to the Police Station Civil Lines resulted from the said proceedings. The remaining investigation was done by the S.H.O. of Police Station Civil Lines and complete challan was also submitted to the Court by him. In the circumstances in my view no illegality viz-a-viz investigation in this case occurred.
8. The contention of the learned counsel that all recovery witnesses in this case were police officials, does not possess weight, for the reason that the investigation was being done of another case in the police station and it was during that investigation, that accused had made disclosure and when the recovery was to be effected from within the premises of the police station, there was no occasion or necessity even to call for any body from outside the police station. Even otherwise, the accused being colleague of the recovery witnesses, it cannot be assumed that they were inimical towards him, in fact, he did not make any allegation in that regard.
9. The argument that since the parcels were sent to the office of the Chemical Examiner after 14 days and so no reliance can be placed on the report of the Chemical Examiner as there was possibility of substitution does not possess weight for the reason that the Head Constable who had despatched the parcels to the office of the Chemical Examiner had explained the delay. He had also authenticated, that so long the parcels remained with him nobody had tampered. Even otherwise, it is worth consideration that the said Head Constable was not serving under Naveed Ikram at whose complaint the case had been registered and so he would not have take any extraneous interest in the case.
The judgment relied upon by the learned counsel does not render help as apart from the fact that circumstances and facts of that case were different, than the case in hand, the other marked difference, is, that the parcel in that case had been sent after one month.
10. The plea taken by the appellant that Naveed Ikram, S.I./S.H.O. had become inimical against him as he had objected to the release of some Mithu Qasai after charging bribe is neither here nor there, because neither any P.W. have lend support to this plea nor had he produced any evidence in defence to prove that.
11. The appellant was a serving constable and was posted at the Police Station Baghdad-ul-Jadeed. The S.H.O. and the other police official posted at the police station could not have gone to the extent of fabricating a false case against him.
Although it is not on the record but it can be safely assumed that the recovery of narcotic at the instance of a police official from within the premises of the police station must not have gone unnoticed by the superior police officers i.e. circle officer or even Superintendent of Police of the District. That being so, they would not have allowed the Sub-Inspector to commit such an excess.
12. For all the reasons noted above there is no merit in this appeal. The same is dismissed.
Vide Notification in the Gazette of Pakistan (Extraordinary) dated Monday April, 1996 whipping has been abolished excepting the cases of Hadd, the sentence of infliction of two stripes is, therefore, deleted.
N.H.Q./1133/FSC Appeal dismissed.