ALTAF HUSSAIN Versus THE STATE
TANZIL-UR-RAHMAN, C.J. ---The above appeal arises out of judgment dated 19-5-1990 passed by the Additional Sessions Judge, Islamabad convicting the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentencing him to four years' R.I. with 10 stripes and a fine of Rs.2,000, in default to undergo six months' further R.I.
2. On 14-3-1989 a Taxi No. LET-9285 being driven by the appellant coming from Fateh Jang side was stopped on suspicion by raiding party of Joint Narcotic Task Force, Rawalpindi and on its checking a packet was recovered from `Hose Pipe' and on opening was found containing heroin which on weighment was 20 grams and on further search of the appellant Rs.50 were recovered. The appellant was arrested on the spot. Two grams were taken out as sample and sealed and remaining was separately sealed and sent for chemical examination. On receipt of the report of the Chemical Examiner, which was positive, the appellant was sent up for trial.
3. In all four witnesses were examined by the prosecution P.W.1 Tariq Mehmood A.S.I. is a Moharrir, who recorded the F.I.R. P.W.2 Jewan Muhammad F.C. took sealed parcel from Moharrir/A.S.I. and delivered the same to the office of Chemical Examiner on 18-3-1989. Muhammad Hussain Akhtar, S.I. of Joint Narcotic Task Force, Rawalpindi is an eye-witness of recovery. P.W.4 Amjad Pervaiz Butt, Field Investigating Officer has drafted the complaint, arrested the appellant, investigated the case and put up the challan in the trial Court.
4. The appellant's statement under section 342, Cr. P.C. was recorded. His answer to Question No.7 as to why the witnesses were deposing against him is reproduced as under:
"All the P.W s. being of Narcotic Force are chips of same block and they have falsely involved me in this case. The alleged heroin was in fact recovered from Phelwan accused of case F.I.R. No.20 dated 14-3-1989 which was planted on me as well besides Phelwan, for the reason that an altercation had taken place between me and Amjad Pervaiz, F.I.O., who wanted to cite me as a recovery witness against Phelwan accused of that case to which I did not agree. My this version will be supported by two other passengers who were travelling by my taxi at that time. I am innocent."
The appellant however, declined to make his statement under section 340(2), Cr. P.C. He produced in his defence two witnesses who, inter alia, stated that they had hired taxi of the appellant, being driven by him and on return near the place of occurrence, the taxi was stopped by the police as they were checking vehicles. One person named Phelwan who had been given lift by the driver was also sitting on the front seat. Police on the search of the said Phelwan recovered something from his pocket and that nothing was recovered from the appellant or from taxi.
5, The learned trial Judge did not believe the defence story and after finding the appellant guilty of the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 sentenced him as aforesaid.
6. Sahibzada Ahmad Raza Khan Oasuri, learned counsel for the appellant, first of all, took a legal objection that the taxi being a vehicle and included in the definition of `place' under Article 2(j) of the Prohibition (Enforcement of Hadd Order, 1979, the provisions of section 103, Cr. P.C. having not been complied with, the recovery is not proved, according to law. It is true that the vehicle has been included in the definition of place but admittedly the taxi, was plying on road at the time of occurrence it was stopped on signalling by the raiding party. In these circumstances. non-compliance of the provisions of section 103, Cr. P.C cannot be said to be fatal to the proof of search and recovery. Reliance is placed on Muhammad Shah v. State ~P L D 1984 S C 283.
Relevant observations read asunder:
7. Learned counsel further submitted that in all 70 grams of heroin was recovered from the other passenger Phelwan out of which twenty grams was foisted on the appellant for the reason that the appellant refused to be a witness of recovery of heroin from the possession of the said Phelwan. It has come in evidence that there were two raiding parties present on Fateh Jang Road (P.W.2). F.I.R. No.20 was got registered against the said Phelwan on the complaint of Nasir Aziz, Field Investigating Officer of Joint Narcotic Task Force, whereas the F.I.R. against the appellant was recorded on the complaint of Am,)ad Pervaiz Butt, Field Investigating Officer of the said Task Force (P.W.4). It has also come in evidence that the said Phelwan was arrested one hour before the occurrence in the above case (P.W.4). Moreover, F.1.R. No.20 being subject-matter of a different case against Phelwan it will not be fair for us to further comment on it, as the said case is not before us. In any case, recovery stands proved.
8. The learned counsel next submitted that there were two or three other persons standing outside the taxi but the prosecution did not examine any one of them as witness. It may be so, but the reason for not citing any witness from public as given by P.W.4, that such persons do not wish to be cited as witnesses seems to be plausible. Moreover, it has been held by Honourable, Supreme Court time and again that testimony of a police man as witness of recovery of article from the accused cannot necessarily be disbelieved merely because of his being a policeman. If an authority is needed the same may be found in Muhammad v. State P L D 7981 SC 637.. It is a well-settled law that it is the intrinsic value of the statement made by a witness which is to be considered by the Court, no matter, the witness comes from general public or is in the uniform of the police or any other department. 1n the instant case, while evaluating evidence of recovery given by P.Ws.3 and 4 who belong to Narcotic Force, the fact cannot be lost sight of that there is no allegation of previous acquaintance or enmity between the appellant and the P.W s.
9. It is significant to note that the appellant has categorically refused to give statement on oath as required under section 340(2), Cr. P.C., probably for fear of being subjected to cross-examination. This also leads us to draw an inference in favour of prosecution.
10. The learned counsel lastly referred to the defence evidence. The evidence of two D.W s. has been disbelieved by the trial Court and so we do. They appear to be overzealous and interested,
11. In result, the appeal is dismissed, conviction and sentences awarded by the trial Court are maintained. The appellant, who is on bail and present in Court, is to betaken into custody and sent to jail to serve out the remaining sentences.
N.H.O, 566/F.S.C Appeal dismissed.