NASEER AHMAD Versus THE STATE
This appeal is directed against the judgment, dated 16-6-1992 passed F by the learned Judicial Magistrate Section 30, Lahore, whereby appellant Naseer Ahmad son of Ahmad Ali was convicted for offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer R.I. for six years, fine of Rs.15,000 in default whereof to suffer R.I. for one year more, and six stripes, with benefit of section 382-B, Cr.P.C.
2. It is case of the prosecution that on 21-8-1991 at 6-00 p.m. Car No.PRK-7337 was intercepted near Munshi Hospital, Bund Road, Lahore. The appellant and three other persons were seen in the car. On seeing the police party comprising of Muhammad Azam S.I. and others, the appellant and other persons tried to run away. The appellant was arrested a little distance away from the car. From his personal search, two kilograms of heroin packed in two packets were recovered. Recovery memo was prepared by P.W.3 Muhammad Azam there and then. The same was attested by Ghulam Rasool and Khurshid Ahmad, S.I. F.I.R. in respect of the same was registered at the police station. Sample taken from the lot was sent for examination to the Chemical Examiner whose report is in positive. After usual investigation the appellant was challaned before the Court to face trial.
3. The case came up for trial before the Court of learned Judicial Magistrate Section 30, Lahore, where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined:--
P.W.1 Muhammad Latif, Head Constable, formal witness.
P.W.2 Ghulam Rasool A.S.I., recovery witness.
P.W.3 Muhammad Azam, S.I. star witness/Investigating Officer.
P.W.4 Khurshid Ahmad, Constable, recovery witness.
P.W.4 Ahsan Ullah, Constable, formal witness.
In his statement recorded under section 342, Cr.P.C. the appellant denied the allegation and claimed innocence. However, in defence Abdul Hameed, Haji Zakir Hussain, Ali Raza and Fayyaz Ahmad were examined. In his statement recorded under section 340(2), Cr.P.C, the appellant took the stand as under:--
However, the learned Magistrate found him guilty for the offence and convicted and sentenced him for the same as mentioned hereinabove. Hence this appeal.
4. Ch. Abdur Rashid, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate-General, with Mr. Shabbir Hussain Qureshi, Advocate, appeared for the State.
5. The learned counsel for the appellant has raised the following grounds in support of his appeal:--
(i) There are material contradictions in the evidence of Ghulam Rasool, Muhammad Azam and Khurshid Ahmad which deroots the entire prosecution story. Hence no reliance can be placed on the evidence of the above said three witnesses.
(ii) There is delay in sending the sample of the contraband material to the Chemical Examiner. Hence no reliance can be placed on the Chemical Examiner's report.
(iii) Provisions of Article 16 read with Article 22 of the Order and section 155, Cr.P.C. have been violated.
(iv) No witness from public though available was examined. Hence benefit of doubt be extended in favour of the appellant.
To support his first contention the learned counsel for the appellant pointed out certain minor contradictions in the statements of P.W.2 Ghulam Rasool, P.W.3 Muhammad Azam and P.W.4 Khurshid Ahmad. The same contradictions were taken before the learned Magistrate. I had the opportunity to go through the judgment passed by the learned Magistrate. He has elaborately discussed the same in appropriate manner. I do not feel it necessary to reproduce the same contradictions and discuss the same separately. I also agree with the observations made by the learned Magistrate, He has disposed of the objections taken by the learned counsel for the appellant in the words as under:--
"The learned defence counsel contended that there are material contradictions among the witnesses in their statements. For example P.W.2 Ghulam Rasool stated that he did not know about any spy information whereas P.W.4 Khurshid deposed that when the informer came to him P.W.2 Ghulam Rasool was also present with him. The P.W.2 deposed that Azam S.I. called him at about 5-30 p.m. in his room whereas P.W.2 deposed that he was not called in that room. Then P.W.2 deposed that after departure from the police station their first stop was near Munshi Hospital whereas P.W.4 Khurshid Ahmad deposed that their first stop was near a Mosque Ibrahim Road. He further clarified that the said mosque is at a distance of two/three furlongs from Munshi Hospital. Then the learned counsel contended that P.W.2 deposed that the car of the accused was facing towards south whereas P.W.4 deposed that the car was facing towards north. I have given full thoughts to these arguments; and these alleged contradictions are not of material nature. Similarly the contention that Azam deposed that all the members of the raiding party were in uniform whereas Khurshid deposed that he and Ehsan Constable were in civil clothes, carries no force, because it is not of material nature.
The learned defence counsel next contended that P.W.2 deposed that the shops were open at that time whereas P.W.4 deposed that the shops were closed. Then P.W.2 deposed that the scale and weights were already with Azam S.I. whereas P.W.4 deposed that the scale and weights were taken from a nearby shop. Then P.W.2 Ghulam Rasool A.S.I. deposed that accused was apprehended from 5/7 steps from the car whereas P.W.4 deposed that the accused had run a distance of about 100/150 yards. The other alleged contradictions as contended by the learned defence counsel are that P.W.2 deposed that a bench was taken from a hotel situated at a distance of about 25/30 yards whereas P.W.4 deposed that there was no any hotel near the place of occurrence. The P.W.2 deposed that the formal complaint was sent through Nazir Constable and he did not know by what means he went to the police station whereas P.W.4 deposed that he went to the police station on a rickshaw and that rickshaw was hired and stopped by P.W.2 Ghulam Rasool. The learned defence counsel, therefore, contended that in view of these contradictions the witnesses are not reliable. In support of his contention the learned counsel referred 1987 P Cr. L J 713 and P L D 1988 FSC 38. I have given full thoughts to the arguments. I have also gone through the above case-laws. All the witnesses categorically deposed that heroin was recovered from the accused. The witnesses have no motive to involve the accused falsely. The facts of the above-referred cases are not relevant to the present case. Under the circumstances these minor contradictions cannot be taken into consideration.
It was also contended by P.W.3 Muhammad Azam that the case property was also sent to the police station alongwith the complaint through Nazir, Constable, whereas P.W.4 Khurshid deposed that the case property was not sent alongwith the complaint. Then P.W.3 deposed that Azam S.I. had given him the case property. Again this contention carries no weight. Actually the case property exists and it is immaterial by whom the case property was deposited with Moharrir Mal Khana.
The learned defence counsel further contended that P.W.4 Khurshid had deposed that heroin was contained in a plastic bag of black colour whereas upon opening of the said bag in the Court the heroin was found in a packet of polythene of white colour. Again this contention carries no weight. It is not possible for a witness to give every minor detail of the case property.
It was then strongly contended by the learned defence counsel that the complainant Muhammad Azam S.I. had received a prior information but he did not join any respectable persons of the locality. The learned counsel further contended that some of the witnesses have admitted that some persons were also present when the accused was apprehended. The learned defence counsel contended that the provisions of section 103, Cr.P.C. have been violated. In support of his contention the learned counsel referred 1988 P Cr. L J 591, 1990 P Cr. L J 26, P L D 1988 FSC 38, P L D 1987 FSC 16 and 1985 P Cr. L J 1378. I have fully gone through these case-laws as referred above. It may be mentioned here that the private persons of the public are generally not willing to become witness in such cases. Moreover, the police officials have no enmity with the accused. Under the circumstances it is respectfully submitted that the above case-laws are not relevant to the present facts of the case."
Regarding six days' delay in sending the contraband material to the Chemical Examiner, it may be observed that P.W.1 Muhammad Latif has stated that he received the same on 21-8-1991, he kept the same in safe custody and no tampering was made therewith. He has further deposed that on 26-8-1991 he handed over the same to P.W.5 Ehsan Ullah who deposited the same in the office of the Chemical Examiner. Nothing has come on the record to show that the same was tampered with. Mere six days' delay in sending the contraband material to the Chemical Examiner is of no importance. There is nothing wrong with the report of the Chemical Examiner. Reliance is placed on P L D 1978 SC 137.
6. Regarding violation of the provisions of section 155, Cr.P.C. the learned counsel for the appellant vehemently contended that at the very stage when witness Muhammad Azam received information he should have recorded the F.I.R. there and then and then had sought for permission from a Magistrate for carrying on the investigation of the case under the provisions of section 157 read with section 155, Cr.P.C. The objection is superfluous. In such cases the F.I.R. is not lodged and entry in that respect may be recorded at police station. A case is registered under section 154, Cr.P.C. after the recovery is successfully made. However, even otherwise the investigation was complete, the appellant was sent for trial before the Court of learned Magistrate and judgment announced. Any defect during the investigation made by the investigating agency would not affect either the competence or the jurisdiction of Magistrate. The Supreme Court of Pakistan in case reported in 1986 SCMR 1836 has laid down this rule. The objection taken in that respect, therefore, is of no consequence.
7. It may be observed that in narcotics cases people from public do not associate with the persons in uniform for one or the other reason. The Courts have, therefore, observed that evidence of persons in uniform would not be discarded on that score alone. Their evidence stands at par with that of any other witness from public subject to the test of cross-examination. Thus, non -joining of witness from public has no significance. Non-compliance with the provisions of section 103, Cr.P.C. has no relevancy so far the case in hand is concerned. The Supreme Court of Pakistan in case reported in 1992 S C M R 1475 has elaborately discussed the above objection in the words as under:--
"Sections 103 and 165.--- Applicability of S.103, Cr.P.C. is restricted to al. n search made under Ss.94 to 105, Cr.P.C.---Requirements for officer making the search---If the circumstances are such that it is not possible to comply with the provisions of S.103, Cr.P.C. the Court will not insist on its strict compliance but will examine other evidence produced by the prosecution to prove recovery with care and caution---Prosecution, however, has to explain the non-compliance with the provisions of 5.103, Cr.P.C.---Being a policeman or an Investigating Officer is no bar to the acceptance of his testimony-- Evidence of Police Officer or Investigating Officer has to be accepted like other prosecution witnesses and if it fulfils all such conditions which are necessary for accepting and believing a witness it cannot be S.4k discarded---Where such witness proves recovery normal limitations and restrictions have to be observed by the Court---Tendency of public not volunteering to become witness is one of the factors which may justify the acceptance of testimony, of police officer which otherwise does not suffer from infirmity."
Turning to the objection regarding non'-observance of the provisions of Article 16 read with Article 22 of the order, it may be observed that after usual investigation the appellant was challaned before the competent forum for trial under Articles 3 and 4 of the Order. The trial against him was conducted before the learned Magistrate and judgment announced. The competence and trial of the appellant, therefore, before the Magistrate could not be defective on account of irregularities committed during investigation. In 1986 S C M R 1836 the view has been taken as under:--
As regards the first contention, suffice it to say that the proposition of law is well-settled that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court. The fact that the learned trial Court had the requisite jurisdiction in the matter was not disputed by the learned counsel."
In 1989 P Cr. L J 209 the Court has also taken the view in the words as under:--
"Ss. 155 & 561-A---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4---Non-cognizable offence, investigation of---Failure of Investigating Agency to follow procedure provided in 5.155, Cr.P.C. in investigation of non-cognizable offence, would not necessarily follow that subsequent trial should be vitiated."
In such view of the fact, the ground taken by the learned counsel for the appellant in that respect has also no force.
8. Prosecution witnesses Ghulam Rasool, Muhammad Azam and Khurshid Ahmad have fully implicated the appellant for having been found in possession of two kilograms of heroin. No enmity has been proved against the witnesses by the defence. Their evidence inspires confidence. They have been rightly relied upon by the learned Magistrate. There being no merit in the appeal which is dismissed accordingly. The conviction and sentences passed against the appellant by the learned Judicial Magistrate Section 30, Lahore on 16-6-1992 are maintained. Benefit of section 382-B, Cr.P.C. shall be given to the appellant.
N.H.Q./810/FSC Appeal dismissed.