GUL ZAMIN Versus STATE

Appellant has assailed a judgment dated 2-6-1996 delivered by the Court of Additional Sessions Judge, Swabi whereby he has been convicted under Article 3 of the Prohibition (Enforcement of Hudd) Order, 1979, hereinafter referred to as the said Ordinance, and is sentenced for R.I. for eight years with whipping of 15 stripes and also a fine of Rs. 10,000 or in default to undergo R.I for six months more. Benefit of section 382-B, Cr.P.C has been extended to him.

2. Story of prosecution in brief is that on 28-9-1994 at 16-00 hours complainant Muhammad Riaz Khan (P.W.5) Inspector of C.I.A. accompanied by Mirza Khan FC, Zafarullah FC (P.W.3) and other personnel at his command were present at Check Post Pehur, Police Station Topi, A Bus No. 2491/MRA coming from Topi was made to stand and checked. In it three jericanes of plastic were found. The appellant declared the same to be of his ownership. Due to doubt, jericanes were opened, from one 10 bags of plastic were recovered which contained 10.250 Kgs. of heroin, from the second jericane 9 big and 5 small sized bags of plastic containing 10.250 Kgs. of heroin were recovered. The third jericane contained 10.250 Kgs. of liquid heroin. In total the recovery was 30.750 Kgs. of powdered and liquid di-acetyle morphine. Necessary procedure of separating samples for chemical examiner was completed. Appellant was arrested. A Murasla was sent to the police station, Topi for registration of F.I.R which was registered on the same day one hour later at 1700 hours. Appellant was charged under Articles 1 and 4 of the said Ordinance to which he did not plead guilty.

3. Prosecution examined five witnesses. Liaqat Ali Khan (P.W.1) has proved that on the receipt of Murasila he registered the case vide F.I.R (Exh. P.A.).`Zafar Iqbal (P.W.2) Resident Magistrate, Topi proved that on 6-10-1994 appellant was produced in his Court by the C.I.A Police and he got recorded his confessional statement vide Exh. P. W.2/1. During cross he has admitted that question No. 5 in the record of confession made by the accused, the word police has not been used but he has explained that the word anybody includes the police. The question in the record of confession being, "Are you making it. on your free-will and without the compulsion of anybody?" To another suggestion he has replied, "I have given the second warning to the accused, however, it is not. mentioned in the questioners but the same has been recorded in the certificate".

Zafarullah (P. W.3) F. C. No. 314 CIA Staff is a marginal witness to the recovery memo. Exh. P.C. He has proved recovery of all the three jericanes weight of the powdered and liquid heroin and separation of samples for chemical analysis. During cross he admitted that he climbed into the bus for personal checking of the passengers. None from the passengers was directed to get down from the bus. Then he climbed to the roof of the bus alongwith Mirza Khan (P. W.) and Rahman Ali. Then the appellant/accused also climbed to the roof and started resisting the search. He has further added that the jericanes were lying in a plastic bag which was brought down from the roof of the bus. Then the Investigating Officer ordered appellant to come down from the roof and asked him about the reasons for resistance. He had not noticed any person decamping from the spot or from the bus. He has denied the suggestion that nothing was recovered from the appellant and that the real culprit had decamped from the spot. Nisar Muhammad (P. W.4) LHC, CIA Staff, Swabi has proved that he was entrusted with warrant under section 204, Cr.P.C against co-accused absconding Naushad but since he had gone into hiding, therefore, the warrant was returned unexecuted. Muhammad Riaz (P.W.5) has proved that during the days of occurrence he was posted as Inspector C.I.A, Swabi and on 28-9-1994 (a 16.00 hours he was present at Pehure Check Post alongwith Mirza Khan and other police party when Bus No. 2491/MRA came and was checked. They recovered three jertcanes and on inquiry the appellant admitted its ownership. On opening the jericanes he recovered 20.5 Kgs. of heroin from two jericanes and the third contained 10.250 KGs of liquid heroin. It was weighed on the spot. Samples were separated. He drafted the Murasila, sent it to the police station and arrested the appellant who confessed his guilt before the Resident Magistrate, Topi. During confession appellant charged another co-accused Nawshad of Dir. He raided the house of Naushad but could not find him. He got the co-accused proclaimed as an absconder and sent the samples to the F.S.L., Peshawar. He completed investigation and submitted challan. During cross he has admitted that he does not know whether jericanes were lying on the top of the bus or inside the bus as a constable had boarded the bus and had informed him about the presence of jericanes. He had noted a person decamping from the bus. He did not order the decamping person to be arrested. To a suggestion he has admitted that he recorded statements of Sultan driver and Nawaz conductor six days later on 4-10-1994 as the bus left the site when he was busy in opening the jericanes. He has admitted further that he wrote application for chemical analysis of the samples on 3-10-1994. Again said that the samples were dispatched on the same day to F.S.L through a constable. The Report of Chemical Examiner (Ex. PW-5/3) indicates that the parcels were received on 3-10-1994 through FC No. 38 Police Station Topi. Anwar Shed (S.W.1) HC No. 617, Police Station Topi has proved that he was entrusted with the warrant of arrest issued against co-accused Naushad son of Gulay, resident of Village Garkool Usherai Data, District Dir. He went to Police Station Gandigar, and there associated one A.S.I. and searched the accused in his village and surrounding area. The accused had left his native village and had gone to Sindh Province. Consequently he returned the warrant Exh. SW-1/1 alongwith his report Exh. SW-1/2 on its reverse. On the basis of this statement the trial Court made orders under section 512, Cr.P.C and recorded evidence. In his statement under section 342, Cr.P.C. the appellant has denied his involvement into the offence for which he was charged. To a question about his confessional statement on 6-10-1994 before the Resident Magistrate, Topi, he has replied, "I do not make any confession, nor I know the contents of the confession. The Magistrate did not inquire from me anything but asked to thumb-impress a white paper. Furthermore, I was tortured by the investigating Officer for 5 days, and he was compelling me to thumb?-impression on the paper without any explanation to the same". To a question about the reason of P.Ws., having disposed against him he has replied: "All the P.Ws., are Police Officials and they are highly interested" To a question about his own statement and the reasons for the charge, the appellant is replying "I am innocent and falsely charged. In tact the recovered heroin was belonging to Naushad absconding accused, who when saw the police taking down the jericane, he slipped away from the spot, and on inquiry I told this fact to the police that, it is the ownership and possession of Naushad absconding accused, but as Naushad had made his escape, therefore, in order to fill up, the police arrested me on suspicion, because the police was of the view that I am the companion of Naushad absconding accused belonging to Dir". He declined to be examined on oath and also did not produce any defence in support of his statement of having been substituted for absconding accused Nawshad.

4. I have heard the counsel for appellant and State. I also summoned and heard Muhammad Riaz (P. W.5) Investigation Officer and recorded his additional statement under section 428(1), Cr.P.C. His additional evidence was found necessary vide order dated 14-1-1997. This order is quoted verbatim:

"While the arguments of the Advocate for appellant were proceeding and were partly heard, this Court noticed that there were discrepancies appearing between F.I.R., depositions of P. W.3, P. W.5 and the report of chemical examiner which needs proper explanation by the Investigating Officer of this case. These discrepancies are that in F.I.R., it has been disclosed that from jericane No. 2, 14 bags were recovered. From each bag, 1 gram of heroin was taken out and 14 parcels were prepared numbered as 12 to 26 and were despatched to the chemical examiner. Remaining heroin was placed in a parcel numbered as 27. From jericane Nos. 3, 4 ml were separated for the chemical examiner and. parcel prepared was numbered as 28. Remains of liquid heroin were kept in a parcel numbered as 29. P. Ws. 3, and 5 have repeated this position in their depositions. Contrary to this, the report of Chemical Examiner, Peshawar is making .a reference to Parcels Nos. 12 to 25 and 27 leaving parcel Nos. 26 and 28 these discrepancies are further highlighted and create doubt when P. W.5, the Investigation Officer of the case, is deposing during the cross that the samples were despatched on the same day to Forensic Science Laboratory through a constable i.e. the day of incident namely 28-9-1994, but the report of chemical examiner is indicative of the receipt of the parcels on 3-10?1994. Where were the parcels for all these days and through whom of the constables the parcels were despatched is shrouded in mystery. Summon Investigating Officer of this case to clarify this position and give additional evidence under section 428 (1), Cr.P.C."

The additional evidence of the said Investigation Officer was partly recorded on 29-5-1997 as he had not brought the police record with him and without the said record the said evidence/statement could not be completed. He was directed to produce the said record and the case was adjourned to any working day of the 2nd week of June, 1997. The case was fixed again on 12-6-1997 on which date Head Constable Amir Muhammad of Police Station Charsadda appeared and filed an application from the said Investigation Officer with a doctor's certificate that he was ailing. Since the case was taking unnecessary time and the justice was getting delayed due to the tactics of prosecution, it was finally fixed on 16-6-1997, on which date Muhammad Riaz (P.W.5) again appeared and additional evidence under section 428(1) was completed. In this additional evidence he stated that he had handed over the jericanes to the Moharrir and it is the job of Moharrir to despatch the samples to the laboratory. The samples remain in the safe custody of the Moharrir till the same are sent for chemical analysis. He marked the parcels from, Serial Nos. 12 to 25 and also Serial No. 27 and that there is no parcel Serial Nos. 26 and 28. During cross to a suggestion he has replied that the Investigation Officer does not mention in the recovery memo that he handed over the samples to the Moharrir. However such entry is made in Register No. 2. He admitted that he had not filed a copy of Register No. 2 in the case file. To other suggestions he is replying:

"I have not recorded statement of the Moharrir to this effect that I have handed over samples to him nor I have obtained any receipt from him. I have seen the application Exh. P.W.5/2 on file which bears date 3-10-1994. I have handed over the case property as well as samples to the Moharrir on 28-9-1994. I was engaged in some other important cases, so I was not left with time to despatch the samples to the chemical examiner on 30-10-1994. I do not remember through whom I sent these samples to the chemical examiner. The register No. 2 of the F.S.L., Peshawar must have entered the name and designation and number of the employee of the police who had taken these samples to the laboratory. I have not mentioned in the application Exh. P. W 5/2 that through whom the samples was sent to the F.S.L ??..Although I do not know as to whether the jericanes were lying on the top of bus or inside the bus the bus, but I have connected the accused/appellant with contraband items because of the fact that when the jericanes were brought out of the bus the accused/appellant himself came out of the bus and himself said that he is the owner of the material and he was claiming that it was mustard oil ...I do not remember whether I tried to arrest co-accused Naushad resident of Usherai, District Dir from Moro Sugar Mills, District Nowshero Feroz, Sindh. It must be in the police record whether any efforts of arrest of Naushad were made from Dir. This way my efforts to arrest one Meerzai, resident of Bajur Agency must be in the police record which I have not brought today ....Case property was handed over to Muhammad Sahi, FC No. 38 of Police Station Topi on 30-10-1994 vide Dairy No. 7 which was entered in Register No. 21 on S I. No. 199. It is meant for despatch of such articles and kept in the police station with Moharrir .....My statement recorded in trial Court is that the samples despatched on the same day is mistaken ....The co-accused Naushad was not arrested. The warrant under section 204, Cr.P.C was obtained from the competent Court for arrest of accused which was handed over to A.S.I. Fazal Hanan to raid the house of the accused in presence of two elders and he prepared the search memo of the raid of the house of Naushad which is (Exh. X/1). During the search of house nothing incriminating was recovered from his house. However, there was nothing and he was found that, he had gone to Sindh. I did not proceed to Sindh for his arrest. I wrote to procure history sheet of Naushad from police station Dir. He is involved in other criminal cases and he is declared P.O. in such other cases."

The learned counsel for appellant has contended that the case against the appellant is that of substitution, that none from the passengers of the bus has been joined as a witness and none of the P.Ws., is independent; that the samples were sent to the laboratories after five days and there is no record about the safe custody of the samples; that the judicial confession was obtained after tortures and after keeping the appellant tinder custody for one week; that the appellant is an aged person of 65 years and this creates a mitigating circumstance for him; that he has relied on, inter alia, the principles enunciated in 1992 SCMR 1134, 1993 P Cr. L J 195, 1993 P Cr. L J 217 and PLD 1993 Peshawar 160.

The learned counsel for State has contended that the recovery of huge quantum of heroin stands proved beyond any reasonable doubt; that there are rulings in which the delay of 3 weeks in sending the samples to the laboratory has been condoned; that the judicial confession is corroborated by ocular evidence; that the following citations fortify his arguments: 1995 P Cr. L J 1272 and PLD 1996 SC 67.

5. Before I deal with the contentions of the learned counsel for both the appellant and State, I have noticed with concern that there are certain substantial documents lying in the records of trial Court as well as police papers which should have been included in the paper book, but it appears that intentionally it has not been done to hoodwink this Court and make the course of justice take a wrong direction. For example in the records of trial Court, order sheet entry dated 8-1-1995 is in fact an order rejecting a petition for grant of bail to the appeal. Unfortunately the memo. of petition is not traceable from the records sent to this Court. Either it has been withheld by the trial Court for the reasons best known to it, or it has been lost but to the negligence and lack of sense of responsibility. whatever has been sent is the bail order dated 8-1-1995 Para. No. 3 of the said order reads:

"The samples were sent to the F.S.L. for analysis, which show that the sample relating to powders were that of heroin, and the sample regarding the liquid, was opined to be lime water.

Learned counsel for the petitioner argued that, actually the container having water in it, was that of the petitioner, who was going to take the water alongwith himself from the spring of his own village for his own use in Sindh, while the other two containers having powder, was belonging to absconding co-accused Naushad. But these arguments are not tenable, because on the spot, the petitioner owned all the three containers and there is no evidence on the file, which would help in ascertaining as to which one of the three,, containers was the property of the present petitioner and which one or more, was that of absconding co-accused Naushad.

It appears then that at the stage of bail, the contention of the appellant was that out of three jericanes, one containing lime water belonged to him and it had its origin from the spring of the village of the appellant i.e. Village Usheri, District' Dir and he was taking it for his own use in Sindh. Finding the application/petition for grant of bail rejected on this ground, the appellant took a complete somersault at the time he was making statement under section 342, Cr.P.C and denied his possession or ownership of all or any one of tile jericanes recovered from the bus in which he was also travelling. A person who tries to hoodwink the Courts through somersaults, and intentional misstatements loses his right to be helped by law. In the same statement under section 342, Cr.P.C. the appellant has admitted his knowledge about the ownership of the jericanes containing huge quantum of heroin and that being that of one Naushad who was travelling with him in the same bus, but slipped away when police raided the bus. Another somersault which is proved from the records is an untarnished deposition of Zafar Iqbal (P. W.2) Resident Magistrate, Topi who has proved judicial confession of the appellant per Exh. P. W.2/1. This exhibit reads:

In these circumstances, the contention of the counsel for appellant is of no avail to him that the accused remained one week in the police custody, was tortured and then was made under compulsion to give his abovementioned confessional statement specially when the appellant himself had replied in affirmative to a question before making this statement as to whether he was making it on his own free-will and without compulsion of anybody in which question the word anybody includes police as well. It appears from an application for remand of ten days and orders thereof (Exh. P. W.5/1) that a remand of seven days was granted by the competent Authority on 29-9-1994 subject to medical examination before and after police custody, and that the District and Sessions Judge be informed accordingly. This was enough precaution to save the appellant from torture in the police custody. So far as the citation PLD 1993 Pesh. 160 quoted-in this regard is concerned the ratio decidendi in the said case is quoted verbatim:--

"It seems to me that the learned Additional Sessions Judge has been impressed by the confession Exh. P.F. of Iftikhar which he had retracted. I am, however, of the opinion that in order to sustain conviction the confession cannot be relied on because not only Iftikhar Alam appellant but his co-accused were already in jail where they had been lodged in connection with case F.I.R. No. 155 dated 4-9-1988. Iftikhar was taken out from jail vide application dated 14-9-1988 at page 33 while Badam his co-accused was taken out on 18-9-1988, on the basis of application at page 18 of the file. On 15-9-1988, the police custody of Iftikhar was secured and on 20-9-1988, his confession was recorded. He remained in police custody for 7 days which by itself is suggestive of the involuntariness of the confession particularly when he had already been subjected to identification on 12-9-1988 as is evident from the Identification Memo. Exh. P. W.8/1. The principle that longer the police custody of an accused lesser the evidentiary value of his confession is applicable with full force in this case. Besides, the retracted confession Exh. P.F. is not supported by any evidence on material particulars. In this context the two hotels situate in Qissa Khawani Bazar, Peshawar where the accused had stayed for two consecutive nights were not traced. Again the sale of Suzuki Pick-up at Peshawar has also not been established."

The present case is clearly distinguishable because of the fact that neither the present appellant was previously in the jail in some other case, nor was there any need of identification parade. The recovery was at the spot and the defence has been taking different and conflicting versions and somersaults. In view of these circumstances, I do not find any substance in the contention that the judicial confession was involuntary.

From the calendar of witness in the challan, the only two independent witnesses of recovery from appellant are shown as Pir Sultan son of Khyber Shah at Serial No. 5 and Nawaz son of Nazar Gul at Serial No. 6. To a suggestion, Muhammad Riaz (P. W.5), Investigation Officer of the case, has admitted that the statements of these two witnesses were recorded by him on 4-10-1994. According to the statement of S.P.P. made in the trial Court on 24-10-1995, Nawaz Khan son of Nazar Gul was abandoned as being unnecessary. Earlier to that on 20-9-1995, the second independent witness namely Pir Sultan (son of Khyber Shah) was abandoned by the S.P.P. What car be the reasons for abandoning the only two independent witnesses and star witnesses as well who have otherwise been so clear about the connection of the appellant with the recovered jericanes in their statements under section 161, Cr.P.C. For example Pir Sultan is stating in his 161, CI.P.C, statement:--

Abadoning star witnesses is a mystery, but is unfolded by the following applications submitted in the trial Court and orders thereof:--

(1) Application of P.W. Pir Sultan son of Khyber Shah dated 10-9-1995:--

"Applicant present, arrest is cancelled. He should appear on date fixed. "

These applications and orders thereof should have been included in the paper book in view of the fact that these are indicative of the delaying tactics employed by Muhammad Riaz (P. W.5) Investigation Officer of the case and the order sheet entries of the trial Court are clearly showing that the P. Ws. belonging to police were not attending mostly. Consequently the star witnesses got harassed and must have shown signs of getting disinterested. This is clear from the following remarks used by the trial Court in order sheet entry dated 15-11-1995.

15-11-1995 .

State present. P. W. Muhammad Riaz, Inspector sent an application for adjournment due to his illness. Fresh summon be issued with the direction that the case is being delayed unnecessary due to non-?attendance of the said P.W., hence he is directed to attend Court positively.

Earlier to this order-sheet entry if all the orders on order-sheet are carefully studied, the panorama which emerges is that of Investigation Officer's indifference towards proceedings in the trial Court, his lame excuses of non-?attendance which finally resulted into losing star witnesses. Even in this Court his conduct has been such that on 12-6-1997 the Court was compelled to make following remarks:--

"The Investigation Officer of this case Mr. Muhammad Riaz was partly examined on 29-5-1997. He had requested for time to produce the police record. With consent the case was fixed for 2nd week of June, 1997. Today Police Head Constable Amir Muhammad of Police Station, Charsadda has arrived and filed an application from the Investigation Officer Muhammad Riaz requesting for adjournment as he is ailing. Doctor's certificate is also attached. This case is taking unnecessary time and needs decision as soon as possible . The case may be fixed on 16th June, 1997."

It has been noticed that the decision of cases in the Courts is taking longer, time due to the non-cooperative irresponsible conduct of either side or both. This conduct is resulting into the destruction of State cases on the one hand, giving free hand to the criminals on the other and also bringing the Courts into hatred, ridicule or contempt within the meaning of Article 204(2)(b) read with Article 203-E (3) of the Constitution of Pakistan. This irresponsible conduct also tends to bring the authority of a Court or administration of law into disrespect or disrepute and also obstructs due course of any judicial proceedings within the meaning of section 3 of the Contempt of Court Act, 1976.

In the present case the conduct of Muhammad Riaz (P.W.5) Investigation Officer has on the one hand harassed the star and the only independent witnesses to an extent that the State lost them and on the other has occasioned an undue delay in deciding the case both at the trial and the appellate stages and therefore has created for the Courts hatred and ridicule in the eyes of public. Consequently a show-cause notice may be issued to him as to why he should not be tried under the relevant provisions of law of the Contempt of the Courts. The reply may be received within two weeks from the receipt of S.C.N. or otherwise proceedings shall be initiated in absentia. A copy of this notice may be sent to the learned Advocate-General, N. W. F. P.

6. The contention of substitution is clearly misconceived. Although it has been admitted by Muhammad Riaz (P.W.5) that he had noted a person decamping from the bus, but it does not absolve the appellant from being devoid of mens rea. As discussed earlier, he has admitted his knowledge of the existence of heroin in the jericanes belonging to one Nawshad who was travelling with him from Village Usheri, Dir (N. W. F. P.) to Moro (Sindh). The appellant may or may not be the owner of the intoxicants in the jericanes, yet his guilt is proved due to his being a co-transporter and accomplice of Naushad admittedly. Although the word accomplice has not been defined in the said Ordinance, yet sections 34 and 35 of the Pakistan Penal Code, 1860 are applicable on the present case by virtue of Article 26 of the said Ordinance. The two sections of P.P.C. read:--

Section 34 :

Acts done by several persons in furtherance of common intention, When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.

Section 35 :

When such an act is criminal by, reason of its being done with a criminal knowledge or intention .--Whenever an act, which is criminal only by reason of its being with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same, manner as if the act were done by him alone with that knowledge or intention.

Since criminal knowledge of appellant about the existence of heroin in huge quantity in the jericanes and intention of transporting the same from p N. W. F. P. to Sindh is admittedly established, the appellant is liable for the offence under article 3 of the said offence in the same manner as if the act was done alone by him.

7. Now comes another aspect of the picture which needs discussion for proper and safe administration of the institutions of justice. Muhammad Riaz (P.W.5) Investigation Officer has admitted that he had noted a person decamping from the bus, but did not order his subordinates to arrest him. He has also admitted that he does not know if the jericanes were lying on the top of the bus or inside the bus. During additional evidence under section 428, Cr.P.C. conducted on 29-5-1997, he replied to a Court question "I do not remember whether I tried to arrest co-accused Naushad resident of Usheri, District Dir from Moro Sugar Mills, District Nowshero Feroze, Sindh. It must be in the police record whether any efforts of arrest of Naushad were made from Dir. This way may efforts to arrest one Meerzai, resident of Bajur Agency must be in the police record which I have not brought today". He has clearly tried to hoodwink this Court on the point of his efforts to arrest Nawshad from Sindh as is transpiring from his subsequent additional evidence on oath on 16-6-1997. He is deposing:" He (Naushad) was found that he had gone to Sindh. I did not proceed to Sindh for his arrest". In fact entire record placed before this Court is silent about any efforts made to arrest Naushad from Sindh about whom this very Investigation Officer has admitted in the final sentence of his additional evidence that his history sheet at Police Station Dir proves that he is involved in other criminal cases and is declared P.O. Police Record and its Zimnis are repeatedly referring to this culprit Naushad and the appellant to be the members of some influential intra-provincial group of the smugglers and transporters of narcotics. In view of this position Muhammad Riaz (P.W.5) who holds the rank of Inspector of Police and is S.H.O. of an important police station has shown signs of irresponsible behaviour while seeing a person escaping from the bus under raid but not ordering his personnel to arrest him, an inefficient and indifferent attitude towards such an important fact of the recovery of, as alleged by him, 30.750 Kgs of crystalline and liquefied heroin but not knowing as to whether it came from the roof of the bus or from inside. He has indicated a habit of telling lies in the Court under oath while deposing that he remembered not as to whether he tried to arrest Naushad from Sindh or not whereas he was sure in his mind that he had done nothing in this regard. Then his attitude of permitting the bus to leave immediately without having recorded statements under section 161, Cr.P.C. of at least the driver and conductor is highly objectionable. He made them star witnesses and recorded statements subsequently on 4-10-1994 i.e. six days after the incident and then at the stage of trial lost them due to his own indifference towards the calls of the Courts. The recording of the statements under section 161, Cr.P.C. of those of the only two independent star witnesses as they appear from the record must have taken maximum 15 minutes. He could have easily made the bus waiting for 15 minutes to ensure safer dispensation of justice. All this was not done. No serious efforts are visible from the records to arrest Naushad even from Usheri, Police Station Gandigar, Dir. All this calls for administrative actions. The learned Home Secretary, Government of N. W. F. P. is hereby directed to conduct enquiry in this regard and take necessary legal actions against the delinquent officer of police and his associates during investigation of the present case who have shown slackness and laxity in discharge of their mandatory duties. A copy of this judgment may be sent to the said learned Home Secretary.

8. The learned counsel for appellant has heavily relied upon a ruling of the apex Court at placentium A cited as 1992 SCMR 1134. It reads:--

"We have considered the defence taken up by the appellant in the light of the prosecution evidence and we find that the learned Appellate Court did not pay any attention to the defence taken up by the appellant. In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution. The case set up by the appellant has certainly created doubt in our mind about the truthfulness of the case of the prosecution. The explanation given by the appellant is quite plausible and the possibility cannot be ruled out that the heroin was owned by the passengers who ran away from the spot."

In the case before my lords of the Shariat Appellate Bench of the Supreme Court of Pakistan, eight bags of heroin containing eight Kgs were recovered from Suzuki No. PRM-6088 which was intercepted by a patrol party of police at Swabi Jahangtra Road. It appears that many passengers had run away from the said Suzuki. Only driver of the said Suzuki Niamat Khan and one Wazir Muhammad sitting by the side of the said driver on the front seat were tried and convicted under the said ordinance. It appears, prima facie, that the two convicted persons had not indicated any knowledge about the real owner/owners of the incriminating intoxicant from amongst those who had run away from the spot. As discussed above, the case of the appellant in the present case is totally different and distinguishable from the cited case. Here appellant himself has taken a firm stand that the jericanes containing heroin were owned by the only decamping Naushad whose start of journey was the same village Usheri District Dir and the destination of both was the same place namely Moro Sugar Mills, District Nausharo Feroze (Sindh). Again, as proved above, the modes of somersaults taken by the appellant himself do prove beyond the reasonable doubt that he is involved in the transportation of 20.500 Kgs of di acetyle morphine in crystalline form as proved by the Report of Chemical Examiner (Exh. P. W.5/3). This contention, therefore, is repelled.

9. Appellant's counsel has relied on a ruling of a Single Bench of this Court cited as 1993 P Cr. L J 1953. Relevant ruling at plancentium A reads:--

"The peculiar circumstances of the case are that the witnesses produced by the prosecution are not clear as to where the contraband material remained from 28-8-1990 to 9-9-1990. I have gone through the five witnesses of the prosecution. They are silent in respect of the same. The entire material has been sent but only the sample, hence the unexplained delay in sending the material to expert cast a doubt in my mind. The learned State Counsel has candidly conceded that the Chemical Examiner's Report cannot be relied upon. In such view of the fact I am inclined to accept the appeal, set aside the conviction and sentences of the appellant recorded by the learned trial Magistrate on 1-11-1992 and acquit the appellant of the charge. He be set at liberty forthwith if not required in any other case. The appeal is disposed of accordingly."

The cited ruling is again distinguishable from the present case inasmuch as that in the present case, only samples were sent to the chemical examiner and not the entire material. Although there is a delay of five days in the despatch of the samples, yet it stands proved that the samples were received by the laboratories intact and the remaining material was kept in safe custody with the Moharrir who was also custodian of the sealed samples for five days and up to the despatch through Constable No. FC/38 as is indicated by the Report of Chemical Examiner (Exh. P. W.5/3). In the present case, the learned State Counsel has not conceded that the Chemical Examiner's Report cannot be relied upon.

10. Reliance has also been placed on a Single Bench judgment of this Court cited as 1993 P Cr. L J 217. Relevant rulings in the said judgment read:--

"I do not dispute the proposition that the police officials are as good witnesses as others but when prosecution case entirely rests upon them, their testimony should be scrutinized with utmost care and caution; and if there in any discrepancy in evidence which creates doubt regarding their truthfulness, their evidence alone would not justify the conviction of the accused. In view of contradictions and other defects pointed out by me coupled with failure of the police officials to associate any member of the public with them in the matter of launching a criminal case against the appellant and delay in the despatch of the sample. I believe that the prosecution has failed to establish the guilt of the appellant beyond the shadow of reasonable doubt. He, therefore, deserves to be acquitted. "

Again, the learned counsel for appellant has cited the abovementioned ruling under misconception as in the present case, the recovery is not at all disputed. It was a bus full of passengers and it is always very difficult for Police to produce witnesses from amongst the passengers every one of whom is in a hurry to reach the destination. The coercion in such circumstances sometimes creates law and order situation for the raiding party which usually consists of few personnel of police, whereas the bus is full of passengers including womenfolk and children. The case before me is not of that type on which can be applied the cited ruling. So far as the point of delay in despatch of samples is concerned, it can only be agitated when it prejudices the case of the appellant. In the present case, the appellant himself is admitting that the recovered articles do contain heroin. I do not understand then as to in what manner delayed despatch of the samples has prejudiced the defence of the appellant. In this context learned counsel for State has correctly relied upon a Single Bench judgment of this Court cited as 1995 P Cr. L J 1272. Relevant ruling is quoted verbatim:--

"Article 4--Appreciation of evidence--Recovery of 30 grams of heroin from the possession of accused stood proved--Although sample was received in Chemical Examiner's Office with a delay of about three weeks, yet the same had not been tampered with because signatures of the attesting witnesses and the seal of the Investigation Officer on it were found intact--Police or Excise and Taxation officials were competent witnesses of the recovery--Conviction and sentence of accused were upheld in circumstances. "

11. Finally then comes the contention that mitigating circumstances exist in favour of reducing the quantum of sentence. The appellant has surpassed the age of 66 or may be 67 years. The record indicates that the absconding accused Naushad was the real owner of the recovered huge quantity of heroin and he is also wanted in many, other criminal cases at Police Station Dir. It appears that the knowledge of the transportation of the incriminating material and may be some greediness of earning a little bit of Kharchi (pocket money) made the appellant silent and made him a co-traveller with a co-villager. Be it as it may, but had the appellant, being a Muslim, been fearful of Allah and not that from a ferocious co-villager Naushad, he would have acted in accordance with clear injunctions of Islam but he refrained to do so. Had the appellant given the evidence based on truthfulness and honesty, he could have created mitigating circumstances for him. But he took the other path of falsity and darkness (ZULMAT). At every stage, the appellant made efforts through his somersaults to mislead the investigation and hoodwink the trial and the Appellate Courts. For six days in Police custody, he was not admitting even the knowledge about the incriminating material. Then he tried to mislead the investigation through his voluntary judicial confession stating that he was informed by Naushad that the jericanes contained illegal arms to be sold in Sindh and had the source in one Mearzai of Bajour Agency. Even that knowledge, if the appellant is truthful, was creating a mandatory duty upon him under the law of the land to inform law enforcing agencies but he cared not to do it. Later, at the bail stage he took up the stand that the jericane containing lime water belonged to him and, in fact, he was taking it as a mineral water from the springs of his village for his personal use. Finding this tactic ineffective, he took a full-fledged somersault and in his statement under section 342, Cr.P.C. he denied connection with anyone out of three jericanes and tried to shift the entire liability on the shoulders of Naushad. Now he is praying for some relief. Law helps those who help the law. Those who do not come to law with clean hands lose their rights on the law. Age factor or may be factor of poverty or may be the factor of non-arrest of the main culprit Naushad due to negligence, inefficiency or may be dishonesty on the part of the raiding party could have generated mitigating circumstances, but the conduct of the appellant himself has led me to the conclusion that already the appellant has been sentenced with lesser punishment of eight years' R.I. whereas the maximum is life imprisonment.

12. The upshot of the discussion is that the impugned judgment is upheld. The appeal is dismissed. Office is directed to keep attested copies of the non?-exhibited documents discussed in this judgment as a part of the paper book and then return the records to the trial Court after the lapse of the period of petition for leave to appeal.

A copy of this judgment may also be sent to the Inspector-General Police, Province of N. W. F. P. Peshawar for necessary administrative/legal actions created by mandates of law upon him. He should personally take interest to bring Naushad and Meerzai the major culprits, to the books and produce them in the trial Court to create a deterrent for sources of narcotics and other contraband items.

H.B.T./1174/FSC ?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.