THE STATE Versus MUHAMMAD YAQOOB

The accused-respondent Muhammad Yaqoob son of Muhammad Aslam was acquitted by Magistrate First Class, Peshawar vide order, dated 12-3-1988 in case F.I.R. No.358, dated 8-6-1985 on a charge under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 based on the allegation that the 10 grams of heroin was recovered from his possession. Criminal Appeal No. 180 of 1988 filed by the State under section 417 of the Criminal Procedure Code is directed against the said order of acquittal.

2. The prosecution case as disclosed at the trial was that Saadat Iqbal, Inspector, while on patrol duty received information that the accused-respondent was engaged in the sale of narcotics whereupon the police party located him and on search of his person found heroin weighing 10 grams wrapped in a plastic, tucked in his shirt's pocket. One gram of the seized narcotics was sealed in a separate parcel and sent to the Chemical Examiner for his expert opinion, whose report confirmed that the contraband seized was heroin. After completion of investigation a complete challan was submitted in the Court of Mr. Fazal Rahman Khan, M.I.C. Peshawar. Charge under section 3/4 of the Prohibition Order, 1979 was framed to which the accused-respondent did not plead guilty and opted to stand trial. At the trial the prosecution produced two witnesses namely Saadat Iqbal Inspector (P.W.1) who headed the party which seized the drug and Muhammad Yasin A.S.-I. (P.W.2) one of the members of the, seizing party. The accused-respondent besides recording his statement under section 342, Cr.P.C. also examined himself as a witness for the defence under section 340(2), Cr.P.C.

3. The accused-respondent was acquitted by the trial Court on the grounds that despite apprehension of the accused-respondent in a public place, no one from the public was associated with the search of the accused-respondent and, secondly that the accused-respondent has given a statement on oath under section 340(2), Cr.P.C. wherein he had alleged that the entire story of the prosecution was concocted.

4. The learned counsel for the respondent raised a preliminary objection as to the competency of the appeal, contending that an appeal against the acquittal of an accused for offence under Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order) lies exclusively to the Federal Shariat Court as the same was established under the Constitution which has conferred upon it the power to review or revise any order passed by the Courts under the Hudood laws. Reliance was placed on Sadiq Shah v. The State 1989 PCr.LJ 1330 and Muhammad Riaz Ahmad v. Ajmal Hussain PLD 1983 SC 233. Responding to the objection as to the jurisdiction of this Court, the learned counsel for the State submitted that appeal against acquittal under the Prohibition Order is regulated by the Criminal Procedure Code in view of Article 27 of the Order and appeal against acquittal under the order, like all other appeals against acquittal, would, under section 417 of the Code, lie to the High Court.

5. Arguments were also addressed on the merits of the case. For the State, it was submitted that the case against the respondent was proved in that the witnesses produced by the prosecution to prove the recovery from the respondent have not been cross-examined. It was pointed out that the learned Magistrate had erred in acquitting the accused mainly on the ground that no member from the public was associated with the search.

For the respondent, it was submitted that the narcotics were planted on the accused on account of ill-will of the police against him.

6. It would be appropriate to first take up the preliminary objection regarding the maintainability of the present appeal. Article 23-DD of the Constitution confers upon the Federal Shariat Court revisional powers over criminal Courts deciding cases relating to the enforcement of Hudood. Clause (3) of the said Article further provides that the Federal Shariat Court "shall have such other jurisdiction as may be conferred on it by or any other law". It shall thus be seen that the Constitution confers only revisional jurisdiction on the Federal Shariat Court over Criminal Courts trying Hudood cases, leaving the extent of its appellate jurisdiction to sub-Constitutional legislation. Clause (1) of Article 27 of the Order makes the provisions of the Criminal Procedure Code applicable to cases under the order so long as they are not inconsistent with its provision. The second proviso to the aforesaid clause specifies the deviation made from the Criminal Procedure Code regarding the Courts competent to try or hear appeals in cases under the Order. The said proviso runs as under:--

"Provided further that the offence punishable under this Article 8 Shall be triable by a Court of Sessions and not by a Magistrate authorised under section 30 of the said Code and an anneal from an order under that Article or from an order under any other provision of this Order which impose sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court.

Thus, but for the exception provided under the aforementioned proviso, appeals against orders passed under the Order shall be regulated by the Criminal Procedure Code and will, therefore, be made to forums prescribed under the Code. The said proviso has made only two exceptions where appeals are to be made to Courts other than the ones specified under the Criminal Procedure Code and to in both cases the appeal would lie to the Federal Shariat Court. The first exception is where the offence is tried under Article 8 of the Prohibition Order, and the second where the sentence imposed by the trial Court exceeds two years. The result is that appeals against the orders of the trial Court under the order would be regulated by the provisions of the Criminal Procedure Code if on conviction sentence imposed does not exceed two years or the accused is acquitted, in cases other than the one tried under Article 8 of the Order. Appeals against orders of acquittal lie to the High Court under section 417 of the Code. As the accused were charged under Article 3/4 of the Order and not under its Article 8, the present appeal was competently filed in the High Court. The judgments cited by the learned counsel for the accused-respondent are distinguishable as they arise out of orders of acquittal under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Section 20 of the said Ordinance deals with appeals from orders passed under the Ordinance. Like clause (1) of section 27 of the Order, clause (1) if section 20 of the Ordinance also makes the provisions of the Criminal Procedure Code applicable to cases under the Ordinance. The second proviso to subsection (1) of section 20 of the Ordinance deals with appeals and reads as follows:--

"Provided further that the offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court . "

7. A bare reading of this proviso makes it clear that appeals from all orders of a Court of Session under the Ordinance shall lie to the Federal Shariat Court, which naturally will include appeals against acquittal. The said proviso is thus distinguishable from the second proviso to the Order inasmuch as unlike the latter, which provides appeal to the Federal Shariat Court only in two cases, the former provides that all appeals from the order of the trial Court shall be filed before the Federal Shariat Court. Thus, the rule of law enunciated in Sadiq Shah's case, (ibid), and Muhammad Riaz Ahmad's case, (ibid), is inapplicable to the present case.

8. Thus, having resolved that the instant appeal is competent, it is next to be seen as to whether in view of the prosecution evidence the order of acquittal was erroneous and unreasonable. The prosecution has produced two witnesses both of whom have not only witnessed the recovery of the contraband from the accused-respondent but had also arrested him immediately after the recovery. The recovery memo. Exh. P.B. was proved at the trial by both the witnesses. The Chemical Examiner's Report which certified the drug to be heroin, was exhibited by P. W.1 at the trial. The statements of both the witnesses are in line with the prosecution case. There is no inconsistency or contradiction between them. The witnesses were not cross-examined at the trial, although opportunity was given to the accused-respondent. Thus, their testimony has gone unchallenged and has to be accepted as such. Even the learned trial Judge did not doubt the credibility of the witnesses. The main ground, which prevailed with the trial Judge was the non-association of the witnesses from the public with the search and recovery. The learned trial Judge, however, failed to take note of the numerous judgments of the superior Courts that police officials are as good search witnesses as any other and that the recovery of contraband cannot be doubted for the sole reason that member from public was not associated with it, moreso, when the recovery was made from search of the person of the accused. The trial Judge, therefore, erred in throwing out the prosecution case on this ground.

9. As for the testimony of the accused-respondent at the trial is concerned, he has merely denied that he was not involved in the narcotics and that his cousins were dealing with the narcotics. This bare statement does not disprove or create doubt on the prosecution case, particularly when he stated in the cross -examination that the police had no enmity with him.

10. Though I am mindful of the principle that an order of acquittal shall not be interfered with in an appeal unless the same is perverse but the order of acquittal in the present case is based on reasons not recognised by the judicial precedents. The testimony of the two prosecution witnesses have not been challenged in the cross-examination and thus is to be believed. Resultantly, the accused-respondent is found guilty of possessing 10 grams heroin and thus convicted under section 4 of Prohibition (Enforcement of Hadd) Order, 1979. However, keeping in mind the fact that the case was registered wayback on 6-8-1985 and the appeal was filed in the year 1988 as a result of which the accused-respondent has suffered due to this protracted criminal litigation, a lenient view is to be taken while sentencing the accused-respondent. In the circumstances, the sentence of two months would meet the ends of justice. Thus, the accused-respondent is sentenced to two months rigorous imprisonment and a fine of Rs.3,000 and in default to undergo further one month's S.I. The accused -respondent has, however, not been found to have been trafficking narcotics, therefore, his acquittal under section 3 of Prohibition (Enforcement of Hadd) Order, 1979 is maintained. The appeal filed by the State is thus accepted in the terms stated above. The benefit of section 382-B, Cr.P.C. is extended in favour of the appellant.

N.H.Q./2061/P Appeal accepted.