QALOO Versus THE STATE

Appellant Qaloo son of Muharram was convicted in Sessions Case No.150 of 1994 by the learned Iind Additional Sessions Judge, Jacobabad, under Article 3 as well as 4 of the Prohibition (Enforcement of Hadd) Order, 1979. Under Article 3, he has been sentenced to five years' R.I. five stripes and a fine of Rs.10,000 and in case of default in the payment of fine to suffer further R.I. for six months. Under Article 4, he has been sentenced to suffer R.I. for seven years, five stripes and a fine of Rs.10,000 and in default in the payment of fine to suffer six months more. It was directed that the sentences shall run concurrently and benefit of section 382‑B, Cr.P.C. was extended to the appellant. Being aggrieved, the appellant filed the present appeal. Arguments of the learned counsel were heard on 18‑10‑1995, 25‑10‑1995 and 1‑11‑1995. On conclusion of the arguments on 1‑11‑1995, by a short order, this appeal was allowed. Reasons for the short order are detailed in this judgment.

2. F.I.R. No.22 of 1994 was registered on 30‑6‑1994 at Excise Police Station, Jacobabad, the complainant being P.W.1 Excise Inspector Sikandar Ali Khoso. The prosecution case is described in para. two of the impugned judgment, which is reproduced here:‑‑

"The case of prosecution is that Excise Inspector, Sikandar Ali Khoso lodged report on 30‑6‑1994 alleging therein that he was posted as Excise Inspector, Jacobabad. On the same date he alongwith E.S. Imdad Hussain, E.S. Deedar Ali, and Constables Abdul Karim, Muhammad Hashim, Muhammad Punhal and Rafique Ahmad left Excise Office vide movement Register Entry No.203 for patrolling purpose on Government Vehicle No.GS‑4717 to detect' the Excise Crimes. While they were on patrolling on Shikarpur Road, when they reached near Peer Mehar Shah, where they saw that accused Qaloo son of not known Panhawar, resident of village Adam Khan, Panhawar was standing by the side of road. On seeing them accused Qaloo Panhawar ran away after talking out plastic bag from his Shalwar and throwing it on the ground. They took plastic bag in their possession and followed the accused Qaloo. Accused ran away from Railway Crossing and two canals. Thereafter they reached at village Adam Khan Panhawar, but accused succeeded to run away after taking advantage of houses and streets. They opened plastic Theli in which opium was lying. They took weight which came to 1200 grams. Thereafter they wrapped opium in same plastic Theli and sealed on the spot in presence of Mashirs E.S. Imdad Hussain and E.C. Abdul Karim. He prepared Mashirnama of recovery of opium and place of Vardat in presence of same Mashirs at about 2‑00 p.m. Thereafter he came back at Excise Office, Jacobabad, where he registered F.I.R. against accused Qaloo Panhawar under section 3/4 of the Prohibition Enforcement of Hadd) Order, 1979. After registration of F.I.R. Excise Inspector put up challan under section 512, Cr.P.C. before the Court of law, showing accused Qaloo as absconder. Learned Sessions Judge, Jacobabad, issued N.B.W. against accused Qaloo and on 29‑8‑1994 accused Qaloo was arrested by Excise Inspector Sikandar Ali Khoso in presence of Mashirs E.C. Farhan Ahmed and E. C. Amanullah."

3. After completion of the investigation by Inspector Sikandar Ali Khoso, who was also the Investigating Officer, the appellant was sent up for trial. During the trial, three witnesses were examined by the prosecution, namely, P.W.1 complainant/Investigating Officer, Sikandar Ali; P.W.2 Excise Sarwar Imdad Hussain, recovery Mashir and P.W.3 Excise Constable Farhan Ahmad, Mashir of arrest of the appellant on 29‑8‑1994. Statement of appellant was recorded under section 342, Cr.P.C. in which he denied the prosecution case as being false. In answer to question No.4 as to why the P.Ws. have deposed against the appellant, he replied that the witnesses were Excise Police Officials and interested as the complainant had involved him in this case at the instance of M.P.A. Mir Muhammad Yaqoob Khan Khoso and complainant was also Khoso by caste and his relative. In answer to question No.7 (the last question), the appellant replied as follows:‑‑

"Sir, I am innocent. In the last General Elections for Provincial Assembly, Mir Manzoor Khan Panhawar was opposite candidate of M.P.A. Mir Yaqoob Khan Khoso I was worker of Mir Manzoor Khan Panhawar, and used to visit the camp of Mir Manzoor Khan Panhawar in the Muhalla of Mir Muhammad Yaqoob Khan Khoso for working purpose, on which Yaqoob Khan, was annoyed, with me and at his instance complainant Sikandar Ali Khoso, has falsely involved me in this case and foisted the case property. I have not thrown the opium on 30‑6‑1994 near Peer Mehar Shah at 2‑00 p.m."

4. The evidence of the prosecution was believed by the trial Court and, as stated earlier, the appellant was convicted and sentenced.

5. In support of the present appeal, Mr. Nuruddin Sarki, learned counsel for the appellant, raised the following contentions:‑‑

(a) All the three witnesses are Excise Officials and though the incident was of day time and on a public road, no private person was associated in the recovery. According to learned counsel, evidence has come on record that large number of persons were available from whom at least two persons could have been taken as recovery Mashirs. According to learned counsel, there is violation of section 103, Cr.P.C.

(b) P.W.1, Excise Inspector, Sikandar Ali, was the head of the Excise patrol party; he seized the property; he then became the complainant and himself recorded the formal F.I.R. and on the basis of his own complaint; he later on became the Investigating Officer and then himself challaned the appellant. According to learned counsel, in the circumstances, the evidence of P.W.1 Sikandar Ali Khoso has become suspect and could not be relied upon for convicting the appellant;

(c) Sample of the opium was sent after two or three days of the recovery which creates a doubt as to whether the sample taken from the recovered opium;

(d) It is a case of false involvement. According to learned counsel, it is surprising that the appellant was personally known to the Inspector previously as despite, according to the prosecution version, the culprit having escaped, he was mentioned by name in the complaint by Inspector Sikandar Ali Khoso. According to learned counsel, it is case of political enmity. It was argued that Inspector Sikandar Ali did not even record statements under section 161, Cr.P.C. of all the Constables who were members of the raiding party including Punhal, who had sealed the parcels;

(e) It was pointed out that conviction both under Article 3 as well as under Article 4 was not maintainable.

(f) It was argued that in any case the sentence was very severe;

(g) Learned counsel also referred to several contradictions in the evidence of the prosecution witnesses and pointed out to the infirmities in the prosecution case.

6. Mr. Agha Zafir Ali, learned counsel representing the State had argued that there was no bar on police officials to become witnesses and there was no distinction between police witnesses and other witnesses. It was argued on behalf of the State that recovery had been established and no enmity was alleged by the defence against the police Mashirs. According to learned counsel for the State, the political enmity alleged against Inspector Sikandar Ali was vague and general and there was no evidence to the effect that such enmity existed and that the appellant had been falsely involved on account of the alleged political enmity.

7. Prosecution's case against the appellant is based on the evidence of two witnesses, namely, Inspector Sikandar Ali and P.W.2 Imdad Hussain. As noted, the third witness, Excise Constable Farhan Ahmad, was examined in connection with the arrest of the appellant. He was not member of the raiding party. In this case, admittedly, independent public Mashirs from the locality were not associated in the exercise of recovery. Reason for not associating public witnesses is given by Inspector Sikandar Ali in his evidence; according to him, at the time when the incident took place, no one was available. He has stated that there was one hotel nearby, but that hotel was closed at that time and no body was available and, therefore, he did not take any private person for acting as Mashir. However, in his further cross‑examination, he contradicted himself by making another statement. He stated that they had tried to take Mashirs from the public, but public persons refused to act as Mashirs against the accused. He admitted that no action was taken against those private persons who had refused to act as Mashirs (apparently with reference to subsection (5) of section 103, Cr.P.C.).

On the other hand, the other recovery witness, namely, Excise Constable Imdad Hussain gave a completely different version. In his cross- examination on the point, Imdad Hussain has stated as follows:‑‑

"It is correct to suggest that people are available at the Peer Mehar Shah round about 24 hours. It is correct to suggest that Hotel, Cabins, Landhy and mosque are situated at Peer Mehar Shah. I do not remember exact time of offering ' Zuhir' prayer. It was about 2‑00 p.m. time, neither private persons came from hotel and cabins towards our side nor we called the persons from hotel and cabins."

8. The police party was going from Jacobabad towards Shikarpur Road and the incident took place at the shrine of Peer Mehar Shah at 2‑00 p.m. The incident had taken place on the highway during day time. Statement of Excise Constable lmdad Hussain that people are available at Peer Mehar Shah round the clock appears to be correct. Reference has been made to the existence of the hotel, cabins, Landhy and mosque near the shrine of Peer Mehar Shah. The first statement by Inspector Sikandar Ali that the hotel was closed and none was present on the highway near the shrine of Peer Mehar Shah at 2‑00 p.m. does not appear to be correct specially when at another place in cross- examination he stated that public persons were called to become Mashirs, but they declined. Inspector Sikandar Ali had contradicted himself and the statement of Excise Constable Imdad Hussain appears to be correct that a number of people were present at the scene of incident, but Inspector Sikandar. Ali did not invite or call any person from the public to be associated in the recovery proceedings.

In this case, therefore, there is violation of the mandatory provisions of section 103, Cr.P.C. inasmuch as persons from the public being available and present were not even called upon to become recovery Mashirs.

9. There is another factor which has caused concern. It has been noted recently that, in case after case, the complainant official is‑ found to have himself become the Investigating Officer. Under the law, the Investigating Officer is required to play a very important role and it is to investigate the crime, which has been reported. Investigation has to be conducted impartially and with the object of finding out, prima facie, whether the crime has been committed and, if so nominate the culprits and as to who are the witnesses to be examined. During the investigation, inter alia, statements of witnesses are recorded under section 161, Cr.P.C. If considered necessary, statements of witnesses are also got recorded under section 164, Cr.P.C. The place of Vardat is visited by the Investigating Officer. If, however, the complainant himself becomes the Investigating Officer, in most cases, the exercise of investigation perhaps becomes a mere formality. There would always be difference in approach between a complainant‑cum‑Investigating Officer and an independent Investigating Officer who is not the complainant or witness. Generally, an Investigating Officer is not a witness of the crime as the investigation starts on report being made to the police after the crime had taken place, but generally in crimes which only involve recovery of contraband items, the recovery takes place earlier by or in the presence of a Police Officer and report about such recovery is later on made by the complainant Police Officer at the police station. In such cases, care should be taken that the complainant does not become the Investigating Officer, but an independent Police Officer, not connected with the recovery, is made the Investigating Officer so that the investigation is not only conducted by an independent and impartial officer, but is also seen to be conducted as such.

In the present case, Inspector Sikandar Ali Khoso was the head of the patrol party. He knew the appellant previously. He is the complainant. On his 8 own complaint he records the formal F.I.R. and then himself becomes the Investigating Officer. Under the law, there is no specific bar against complainant officer becoming the Investigating Officer, but, being the complainant, it cannot be expected that as an Investigating Officer he will collect any material which does not go against the prosecution or gives any benefit to the accused. Evidence of such officer, therefore, is a weak piece of evidence and, for sustaining a conviction, such evidence would require independent corroboration, Evidence of' such Police Officer would also require to be scrutinized with great care and caution and benefit of any contradiction and infirmity which raises any doubt should be extended to the accused.

10. On a careful and close scrutiny of the evidence of Inspector Sikandar Ali Khoso, following infirmities and contradictions have been noted:‑‑

(i) In the F.I.R. as well as in the examination‑in‑chief of Sikandar Ali Khoso, it is mentioned that all the seven members of the patrol party chased the appellant after he had thrown the packet and escaped, but in his cross‑examination Sikandar Ali Khoso contradicts himself when he stated that he had not gone with the others chasing the appellant. He stated that he stayed back alongwith P.W.2 Excise Constable Imdad Hussain and Constable Abdul Karim, whereas the remaining four Constable chased the accused. P.W.2 Imdad Hussain further contradicts Sikandar Ali when he stated in his deposition that the four Constables who chased the accused included Abdul Karim. As noted, Constable Abdul Karim, according to Sikandar Ali, had stayed back with Sikandar Ali and had become a co‑Mashir regarding the contents of the packet allegedly thrown by the accused;

(ii) The other material contradiction already noted relates to the presence of persons at the time of the incident. According to Sikandar Ali, in the vicinity there, was one hotel which was closed and no one from the public was available and, therefore, no person from the public could be made the recovery Mashir, but later on in cross -examination he contradicted himself by stating that persons were available, but they declined to become recovery Mashirs. On the other hand, according to Constable Imdad Hussain, people were available at the place of the incident near the shrine of Peer Mehar Shah where there were hotel, cabins, Landhy and mosque and that persons were available at the shrine round the clock. He further stated that the patrol party did not call any person from the Hotel or Cabins to act as recovery Mashirs;

(iii) Admittedly, there were seven members of the Excise party headed by Inspector Sikandar Ali. According to the prosecution, in the presence of seven members of the patrol party, the accused, after throwing a packet, ran away. He was chased up to his village which was a few kilometres from the place of the incident, but the chasing party could not catch him. It is surprising that such a big patrol party allowed the accused to escape. A doubt is created as to whether the incident had taken place as alleged by the two prosecution witnesses.

(iv) There is also discrepancy about the distance between the place of the incident and the village of the accused towards which the accused had escaped. According to P.W.1, it was 2/3 kilometres away whereas, according to P.W.2, it was only four furlongs from the place of the incident.

11. On close scrutiny of tote evidence of Inspector Sikandar Ali and Constable Imdad Hussain it has been found that their evidence suffers from infirmities and contradictions. No independent evidence is available regarding recovery. A doubt is created as regards the prosecution case benefit whereof should have gone to the appellant.

12. As a result, this appeal is allowed and the appellant is acquitted of the charge.

N.H.Q./1032/FSC Appeal allowed.