NASEER AHMAD Versus THE STATE
This appeal is directed against the judgment dated 16-6-1992 passed 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 seven years, fine of Rs.25,000 in default whereof to suffer 1-1/2 years R.I. more and ten stripes with benefit of section 382-B, Cr.P.C.
2. It is case of the prosecution that on 21-8-1991 the appellant while in custody in case F.I.R. No.313/91 Police Station Lower Mall, Lahore led to recovery of four kilograms heroin from his house. Inventory in respect of the same was prepared. Sample was taken from the lot and sent for examination to the Chemical Examiner whose report is in positive. F.I.R. No.315/91 was registered at Police Station, Misri Shah, Lahore. After usual investigation, the appellant was sent for trial before the Court to face trial.
3. The case came up for trial before the 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 Azam, S.I. the star witness:
P.W.2 Ghulam Rasool, A.S.I. the recovery witness.
P.W.3 Khurshid Ahmad, Constable, the recovery witness.
P.W.4 Riaz Ahmad, Head Constable, a formal witness.
P.W.5 Ehsanullah, Constable, a formal witness.
In his statement recorded under section 342, Cr.P.C. the appellant denied the allegation and claimed innocence. However, he examined in defence Abdul Hameed, Haji Zakir Hussain, Ali Raza and Fayyaz Ahmad. He also examined himself on oath under section 3Q(2), Cr.P.C. The learned Magistrate did not believe his defence and while relying on the prosecution evidence convicted him for the offence 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 the prosecution witnesses.
(ii) The provisions of Article 16 read with Article 22 of the Order and sections 103 and 155, Cr.P.C. were violated.
(iii) People from public were not examined, hence no reliance can be placed on the evidence of the incumbents in uniform.
(iv) The place wherefrom contraband material was allegedly recovered is jointly owned, hence no responsibility can be put on the appellant.
Reliance was placed on case reported in 1993 P Cr. L J 206.
6. The learned State counsel vehemently controverted the contentions raised by the learned counsel for the appellant and urged for maintaining the conviction and sentences of the appellant.
7. In support of his first contention, the learned counsel for the appellant pointed out many minor contradictions in the evidence of the material witnesses. I had the opportunity to go through the judgment passed by the learned Magistrate where the same points were raised. I do not repeat the same contradictions in my judgment. However, as the learned Magistrate has elaborately dealt with such contradictions, it would be useful to produce that part of the judgment where such objections were disposed of by him. The judgment reads as under:--
"The learned defence counsel contended that there are material contradictions among the statements of the witnesses. The alleged contradictions as contended by the learned counsel are that P.W.1 Azam deposed that the accused was present in his room at Police Station Lower Mall when the accused made disclosure regarding the heroin whereas P.W.2 deposed that the accused had made such disclosure at Bund Road at about 8-00 p.m. Then P.W.1 deposed that they went to the house of the accused in an official pick-up Pfo.6374/LHN whereas P.W.2 Khurshid Ahmad deposed that they had gone to the said house m private pick-up. Then P.W.1 deposed that all persons were in uniform whereas P.W.2 deposed that two/three persons were not in uniform. I have given full thoughts to these arguments and these alleged contradictions are not of material nature. The learned counsel further contended that the witnesses have also stated a different route for reaching the house of the accused and also stated a different version from each other, regarding parking of the vehicle at the spot. Again these alleged contradictions are not of material nature. The learned defence counsel further' contended that P.W.1 deposed that the recovery was effected from the first room of the house whereas P.W.2 deposed that it was recovered from the second room of the house. The learned counsel further contended that all the witnesses could not tell the exact number of the house and the street. However, these contentions carry no weight. The witnesses have deposed that they went to the house of the accused. The witnesses are not residents of the same locality, and therefore, it cannot be expected that they would give every minor detail of the locality. Similarly the contention that P.W.1 deposed that proceedings of the case were completed in the house whereas P.W.2 deposed that these proceedings were partially in the house and partially in the vehicle, carries no weight. It is a minor thing.
The learned defence counsel further contended that P.W.1 deposed that they took one hour for completing the proceedings whereas P.W.2 deposed that they took only.15/20 minutes for the same: Then P.W.1 Azam deposed that Khurshid Constable went to the police station on the official vehicle while taking complaint there, whereas P.W.3 Khurshid deposed that he went to the police station on a rickshaw. Again these contentions have no force because these are not of material nature and are not related to the alleged recovery of heroin from the house of the accused. Similarly the other alleged contradictions among the witnesses regarding scale and weights and the parcels of sample are not of material nature. The learned defence counsel further contended that the witnesses have also deposed a different version from each other as to who have entered the house of the accused. Anyhow P.W.1 and P.W.3 have deposed that members of the raiding party have entered the house. The recovery witnesses were present at the time of alleged recovery of heroin from the house, so this contention carries no weight.
The learned defence counsel further contended that P.W.2 had deposed that no other persons were present in the house. But P.W.1 Azam deposed that some inmates of the house were present in the house. The learned defence counsel, therefore, contended that the house was in joint possession of some persons, and therefore, the accused cannot be held liable for this recovery. However, this contention carries no weight. It was Naseer Ahmad accused who had made a disclosure regarding heroin and then he himself got recovered heroin from his room. Similarly the other alleged contradictions regarding the scale and weights and bag in which heroin was contained etc. are not of material nature.
The learned defence counsel further contended that no search warrant was obtained before raiding the house and no respectable persons were joined from the locality and therefore, the whole case against the accused is illegal. The learned counsel, therefore, contended that section 203, Cr.P.C. has 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 thoroughly perused these case-laws as stated above. It may be stated here that the accused was arrested in an earlier case vide F.I.R. No.313/91 Police Station Lower Mall and that case was registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979. In that case two kilograms of heroin was recovered from him, when he was going in a car alongwith some other persons. Therefore, in the presence of that F.I.R. under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, it was not essential to obtain a search warrant:
I have no reason to take a different view than taken by the learned Magistrate. The objection is repelled.
8. 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 witnesses from public has no significance. Non-compliance of 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:--
"Ss.103 & 165---Applicability of S.103, Cr.P.C. is restricted to 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 S.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 that of other prosecution witnesses and if it fulfils all such conditions which are necessary for accepting and believing a witness it cannot be 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 S.155, Cr.P.C, in investigation of non-cognizable offence, would not necessarily follow that subsequent trial should be vitiated."
Besides, in cases leading to recovery of material at the pointation of an accused person the provisions of Article 16 or 22 of the Order in my view are not attracted because it is not search by the authorities itself but it is production of the material by the culprit himself. In such view of the facts, the ground taken by the learned counsel for the appellant in that respect has also no force. The appellant led to recovery of the contraband material from his own house underneath a sofa set. No other person can be held responsible for the same being in exclusive possession of the appellant. The objection is repelled. The authority relied upon by the learned counsel for the appellant does not come to the rescue of the appellant.
9. Prosecution witnesses Ghulam Rasool, Muhammad Azam and Khurshid Ahmad have fully implicated the appellant for having led to the recovery of contraband material. 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 told the appellant.
N.H.Q./809/FSC Appeal dismissed.