MUHAMMAD ALI Versus THE STATE

MIAN SHAKIRULLAH JAN, J. ‑‑‑ Through this appeal, the appellant has questioned the order, dated 8‑10‑1998, passed by Judge, Special Court, Peshawar, whereby the appellant has been convicted under section 9, Control of Narcotic Substances Act and sentenced to life imprisonment with a fine of Rs. one million or in default to undergo 6 years' R.I. Benefit under section 382‑B, Cr.P.C. has also been extended to him.

2. Brief facts of the case are that Irfan Ali, Sub‑Inspector, Airport Security Force was on duty on 20‑11‑1996 on hold Baggages Machine at the Peshawar Airport with Azizur Rehman, A.S.‑I. Machine Operator. The machine was declaring the bag to be suspicious, as such, on search of the bag it was found that there was‑ a sort of bulk in the bottom of the bag and it was not in a straight position. On opening of the bag, heroin was recovered in a white colour envelop, over which two plastic sheets were wrapped. The appellant was taken to the Controlling Room, and was handed over to the Company Commander, Chaudhry Muhammad Nawaz, A.S. F., Peshawar who directed Irfan Ali, Inspector to search the bag thoroughly. He, after removing the clothes lying in the bag, torn out the bottom of the bag and found envelop containing heroin. The appellant was arrested, a report was written, the other articles i.e. clothes, towel etc. contained in the bag one ticket of Aero Ashia flight from Peshawar to Karachi and Rs.5,000, in addition to the heroin, were taken into possession vide memo. Exh. P.C.

3. Bukhari Shah Khan (Rtd.) S.‑I. Police Station, Anti-Narcotic Force, after receiving telephone call, arrived at the airport in the office of A.S.F. Ch. Muhammad Nawaz, Security Officer, Company Commander handed him over the written report Exh. P. A./1 which was incorporated in Murasila Exh.P.A./2 by Bukhari Shah, S.‑I. and sent the same to the police station for registration of the case and a case F.I.R. No.21, dated 20‑11‑1996 Police Station, Anti‑Narcotic Force, Peshawar was registered as Exh.P.A. The appellant, already arrested, was taken into custody by the S.‑I. The articles already recovered by Ch. Muhammad Nawaz were taken into possession by the S.‑I. vide recovery memo. P.C./2 while heroin was taken into possession vide recovery memo. P.C./1. After separation of one gram heroin as a sample for chemical analysis and being sealed it into a parcel, the remaining quantity of heroin 1999 grams was also sealed into a separate parcel vide the same memo.

4. The prosecution examined five witnesses after which the statement of the accused both under sections 342 and 340(2), Cr.P.C. were recorded. Later on if was felt that the Investigating Officer Bukhari Shah, S.I. had been left unexamined inadvertently, who was examined after which the accused was again examined under section 342, Cr.P.C. He did not opt this time to record his statement under section 340(2), Cr.P.C. or to produce any defence but has relied upon his statement already recorded.

5. Out of the six witnesses of the prosecution, the material witnesses are P.W.2 Ch. Muhammad Nawaz, Security Officer, Company Commander, A.S.F., Peshawar, who was Incharge of the A.S.F. Staff present on duty. In his presence and on his direction the search of the bag was conducted and the contraband articles were recovered from it. P.W.3 Irfan Ali, Inspector A.S.F., Peshawar Airport, who during the days of occurrence was S.‑I. in the A.S.F., has conducted the search of the bag and recovered the various articles from it including the heroin. Additional witness Bukhari Shah (Rtd.) S.I. has investigated the case and after taking the accused into custody, has also taken into possession heroin and the various articles, belonging to the accused, in the presence of P.W.4 Feroz Khan, H.C. A.N.F., P.W.5 Alhaj Mazhar Sajjad, Judicial Magistrate, Peshawar has conducted the destruction of, the narcotic so recovered in the case in pursuance of an order of the Court after separation of five grams which was sealed into a parcel as Exh. P./1 for the production in the Court during trial.

6. The learned counsel for the appellant has contended that:‑‑

(i) That the bag from which heroin was recovered has not been taken into possession and which has also not been produced in the Court and which adversely affects the prosecution case. Reliance was placed on a judgment in case Khalid Mahmood v. The State 2000 PCr.LJ 1036.

(ii) That some of the investigation proceedings have already been taken before the registration of the case.

(iii) That Ch. Muhammad Nawaz, Security Officer, Company Commander A.S.F., Peshawar has partly investigated the case who has not been authorized to do so under the law.

(iv) That the person who has taken the articles to the Laboratory has not been produced as a witness in the Court.

(v) That the chemical examination could not have been carried out in a Laboratory situated in Punjab outside Province of N.W.F.P.

(vi) That there is a delay of about 14 days in sending the articles to the Laboratory for the chemical analysis which make the case of the prosecution doubtful. Reference was made to cases (a) Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812; (b) Javed Akhtar v. The State PLJ 1997 Cr.C. Lahore 1310.

(vii) That the order of Special Court (trial Court) with regard to the destruction of the heroin has not been placed on file. Reference was made to (a) Feroz Khan v. The State PLJ 1997 FSC 166; (b) Malik Talib Hussain v. The Station 1998 MLD 506.

(viii) That there are glaring contradictions and inconsistencies in the statement of the prosecution witness.

7. The Special Prosecutor on the other hand has opposed all the contentions of the learned counsel for the appellant and has contended that all submissions made by him are inconsequential except the first one relating to the non‑production of the bag, from which the heroin was recovered, but that is also not of such significance as to adversely affect the prosecution case and at the most it is a lacuna or an irregularity committed by the Investigating Agency and against whom, at the most, a disciplinary action can be proposed/taken.

8. The learned counsel for the appellant while elaborating his points as mentioned above, has submitted that the proceedings have already been taken before the registration of the case as according to the witnesses the articles were taken into possession by the Investigating Officer produced to him at the Airport already taken and the case was registered subsequent to the completion of all the initial steps taken in the case and investigation suffers from incurable irregularities. With regard to point No.2 he referred to the statement of Bukhari Shah, S.‑I. who was examined as additional P.W.1, who in the first line of his examination has stated that he has partly investigated the case and from this a conclusion that the rest of the investigation had been carried out by Ch. Muhammad Nawaz, has been derived. Both his submissions are untenable. The events have taken its normal course as on suspicion the bag was searched and after recovery of heroin from the bag the necessary steps were taken by arresting the accused, taking articles into possession and writing down a report to be incorporated in the F.I.R. This fact by itself does not amount to investigation of the case rather the case was investigated by the S.I duly authorized in this respect.

9. Regarding the third point agitated by the learned counsel for the appellant it may be observed that it is not necessary to produce the person as a witness in the Court who has taken the articles to the laboratory unless it as shown that either the seal or the parcel have been tampered or has been substituted and similar is the position with regard to the delay and sending the matter to the Laboratory unless it, is shown that the seal or the parcel have been manipulated or substituted and mere delay ‑does not make the case of the prosecution doubtful with regard to the authenticity of the report. The judgments relied upon by the learned counsel for the appellant, qua the delay in dispatching the material to the Laboratory having different facts and are distinguishable. In a case Sajjid v. The State 1998 PCr.LJ 114 the delay of 9 days in dispatching of the crime articles was held to be of no consequence as the same (delay) was very short and in the absence of any evidence or suggestion to the Investigating Officer that the same were substituted, therefore, reliance can be placed on such recovery. Moreover, in case (a) Sarwar Khan and others v. The State 1987 SCMR 960, the Honourable Supreme Court held that the delay in dispatching the articles would not by itself be a reason for rejection of such recoveries. (b) In another case Sultan and another v. The State 2000 SCMR 1818, the Honourable Supreme Court held that though the conduct of the person for delayed delivery of the parcel in the Laboratory was deplorable yet same having not being manipulated or tampered with, no adverse inference could be drawn against the prosecution.

10. Learned counsel for the appellant was critical about the test to have been carried out by the Chemical Examiner to the Government of Punjab and according to him, it is the Laboratory set up in the N.W.F.P., which can examine the material and having a jurisdiction, There is no question of territorial jurisdiction/limits for the Laboratory and is immaterial as to which Laboratory either in Punjab or in the N.W.F.P., or for' that matter in any other Province has carried out the test, if otherwise it is competent to do so. His this contention also does not stand.

11. Much emphasis was placed on the submission that the order of the Special Court/trial Court with regard to the destruction of heroin has not been placed on file. Alhaj Mazhar Sajjad, Judicial Magistrate who appeared in the Court as P.W.5 has categorically stated that he has destroyed the contraband articles in pursuance of an order passed by the trial Court, after separating 5 grams heroin for production in the Court and in which respect he prepared the report. During the trial the appellant has neither agitated this point nor cross‑examined the witnesses about the order of the District Judge otherwise the same could have been produced or in the alternative an explanation could have been‑furnished. The judgments on which reliance has been placed by the learned counsel for the appellant do not support his case. In Feroz Khan case (supra), it was held that any function performed by any one under the supervision and control of that Court would be treated a judicial function performed under the order of the Court unless the Magistrate has done that act without any authority or order from the trial Court, which is not the case here. In Talib Hussain's case (supra), the judgment instead of supporting the appellant case, is in favour of the prosecution. The Honourable Court i.e. Federal Shariat Court while interpreting the word (the Court) employed in the second proviso to section 516‑A, Cr.P.C. has held that the word 'Court' is not confined to trial Court but include all criminal Courts and it was held:‑‑

"Word 'the Court' in the said proviso was used for and in reference to 'any Criminal Court' used in the main provision of section 516‑A, Cr.P.C. without any clog of jurisdiction‑‑ Proviso to section 516‑A, Cr.P.C. was not independent and expression `the Court' used therein could only be interpreted with reference to `any Criminal Court' in the main provision of section 516‑A, Cr.P.C.'"

This judgment which is a Division Bench judgment, has distinguished the judgment in case of Nawab Ali v. The State NLR 1995 FSC 374. The later judgment holding the same view as in Feroz Khan's case. In the light of the judgment in case Malik Talib Hussain, this objection even legally is not sustainable.

12. With regard to the contradiction in the statement; of witnesses the learned counsel for the appellant has argued that one witness P.W.4 has stated that the articles were handed over to the Investigating Officer when he arrived at the Airport while according to the other witness P.W.2 the articles were sent to the Police Station A.N.F. These are not such contradictions which go deep to the root of the case. Such inconsistency may occur due to the lapse of time between the occurrence and the recording of the statement and may be on account of not properly understanding the question of the defence counsel put to a witness. Otherwise this is also a subsequent event to the recovery already effected. The so‑called contradictions which may be more appropriately termed as negligible inconsistencies may exist but those by themselves would not be sufficient to dislodge the prosecution case.

13. The contraband articles have been recovered by two responsible officials of the A.S.F. who in the course of their normal duties checked the bag carried by the appellant having some suspicious material and after checking it, their suspicion turned into reality by recovering heroin from the bag. The two material witnesses P.W.2 and P.W.3 who, unlike the prosecutor/Investigating Officer, are not interested in the success of the prosecution case. The appellant has also stated in his statement recorded under section 340(2), Cr.P.C. that he has got no enmity with the A.S.F. officials, hence, there are no reason to doubt their version.

14. The non‑production of the bag which is a lacuna in the prosecution case would also not affect it. The judgment in case Khalid Mahmood referred to by the learned counsel for the appellant would .be of no help to him as that was not the only ground which weighed with the Court against the prosecution and it was in conjunction with other material grounds lead to the acquittal of the accused. In the case Sajjad and another v. The State 1998 PCr.LJ 114, it was held that investigation in the case did not seem to be dishonest and some procedural irregularities therein could not destroy the direct testimony of disinterested witnesses. In another case Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785, the Honourable Supreme Court has held that in cases of smuggling of narcotic the evidence of the standard available in other criminal cases may not be expected as the smuggler being organized manage to cause dents in the prosecution evidence. The approach of the Court should be dynamic and should overlook technicalities. The relevant portion of the judgment is produced:‑‑

We may observe that the Court cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and. therefore, generally, they damage to cause dents in the prosecution evidence. In such like cases, which, are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generation addicts to narcotic, the Court's approach should be dynamic and they should overlook technicalities in the large interest of country and the public‑at‑large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be, recorded."

The view taken by the Honourable Supreme Court in Munawar Hussain's case was followed by the Federal Shariat Court in the case of Malik Talib Hussain, wherein it was observed that technicalities, procedural or otherwise, if any, should not be given serious thought if the case stood otherwise proved. In the wake of provision of section 26 of the Ordinance wherein it has been provided that it may be presumed, unless and until the contrary is proved that the accused has committed an offence under this Ordinance, if he found in possession of some narcotic and for such possession he failed to account satisfactorily, the objections with regard to the alleged irregularities or inconsistencies may be of no significance.

15. Resultantly, we, are of the view that the prosecution has been able to prove its case beyond any reasonable doubt and the learned trial Court has, rightly held him guilty of the offence and has rightly convicted him.

16. We have also considered the quantum of sentence, though not agitated before us as the learned counsel for the appellant attempted to secure the acquittal of the appellant. The offence was committed on 20‑11‑1996 and at that time the law governs such‑like cases, was the Control of Narcotic Substances Ordinance (XIV of 1996) which was promulgated on 2‑11‑1996. According to section 9(c) of the Ordinance the punishment provided for the offence if the quantity of narcotic drug exceeded the limit of one Kg. was death or imprisonment for life with a fine which shall not be less than Rs. one million unlike the Control of Narcotic Substances Act, 1997 which provides the punishment for similar offences as death or imprisonment for a term which may extend to 14 years and shall also be liable to fine which may be up to one million rupees, empowering the Court, keeping in view the circumstances of the case and the quantity of the narcotic, to award the punishment even lesser but this power/leniency is not available in the said Ordinance. Thus the Court after finding the appellant as guilty of the offence, cannot help him in the matter of quantum of sentence.

For what has been discussed above, we see no merits in this appeal and is hereby dismissed.

N.H.Q./438/P Appeal dismissed.