MUHAMMAD ASIF Versus THE STATE

MUHAMMAD YUNUS SURAKHVI, A.C.J.-------- The above titled appeal has been preferred by the appellant against the impugned judgment of the Shariat Court passed on 26-9-2001 and the order, dated 8-10-2001, whereby the appeal filed by the appellant against his conviction was dismissed; similarly the application of the appellant for hearing the appellant or his counsel was also dismissed.

2. The necessary facts, giving rise to the present appeal, are that a case was registered against the convict-appellant at Police Station Muzaffarabad on 28-10-1990 for allegedly committing offences under sections 3/4 of the Prohibition (Enforcement of Hadd) Act, 1985. It has been disclosed in the F.I.R. that the complainant, Shahid Iqbal, A.S.-I. alongwith Shah Zaman, H.C. No.381, Muhammad Asghar, H.C. No.485 and some others was going towards the house of Muhammad Ibrahim, son of Muhammad Azeem, for the execution of search warrants issued by the Extra Assistant Commissioner, Magistrate 1 st Class. At about 4-45 p.m. when they reached near Ziarat Sharif, Upper Chatter, Muhammad Asif, the convict-appellant, who was standing there, tried to slip away while seeing the police party. The complainant and other police personnels arrested him. During search the police recovered 500 grams of "Chars" from him out of which 25 grams of "Chars" was sent to Chemical Examiner for examination.

3. After the registration of case and necessary investigation, the convict-appellant was forwarded to face the trial before Tehsil Criminal Court, Muzaffarabad. The convict-appellant was examined by the trial Court under section 242, Cr.P.C. wherein he pleaded not guilty and the Court ordered the prosecution to produce its evidence. The prosecution in support of its case examined as many as eight witnesses. After the conclusion of evidence of prosecution, the statement of convict-appellant was recorded under section 342, Cr.P.C. wherein he denied the incriminating pieces of evidence put to him. The convict-appellant also desired to produce defence evidence. In defence the accused examined Kala Khan, Zabardast Khan, Muhammad Siddique and Sajjad. After the conclusion of trial and the appreciation of material brought on record, the trial Court reached the conclusion that the prosecution has successfully proved its case against the convict-appellant beyond any reasonable doubt and sentenced him to one year's imprisonment and a fine of Rs.2,000.

4. The appeal against the above conviction order was dismissed by the District Court of Criminal Jurisdiction, Muzaffarabad vide order, dated 19-6-2001 and the conviction recorded by the trial Court was upheld. Feeling aggrieved by the aforesaid judgment of the District Court of Criminal Jurisdiction dated 19-6-2001 the convict-appellant preferred an appeal before the Shariat Court. On 26-9-2001, the arguments were to be heard by the learned Judge in the Shariat Court but the convict-appellant as well as his counsel were absent. This fact stands duly mentioned in the judgment passed by the Shariat Court. However, the Shariat Court vide its impugned judgment dated 26-9-2001 heard the appeal and decided it on merits by duly applying its judicial mind. The Shariat Court vide the impugned judgment, dated 26-9-2001 upheld the conviction order of the convict-appellant passed by the District Court of Criminal Jurisdiction and the trial Court. The convict-appellant instead of filing an appeal against the judgment of the Shariat Court passed on 26-9-2001 moved a miscellaneous application before the Shariat Court on 4-10-2001, wherein he prayed that on the date of hearing as his counsel was busy in some other Court, therefore, he could not appear in the Court. With regard to his own absence the convict-appellant did not mention anything in his application. On the application being presented to the learned Judge in the Shariat Court, it was observed by the learned Judge vide his order, dated 8-10-2001 that he had already decided the case vide his judgment, dated 26-9-2001 by applying his judicial mind on all the relevant aspect of the case, as such the application, merited no consideration and the same stood dismissed.

5. The convict-appellant has filed the present appeal against the judgment of the Shariat Court, dated 26-9-2001 and also against the order, dated 8-10-2001, which was passed on the miscellaneous application moved by the convict-appellant.

6. We have heard Mr. Ashfaque Hussain Kiani, the learned counsel for the appellant, as. well as Raja Ibrar Hussain Khan, the learned Advocate-General, appearing on behalf of State and perused the relevant record with due care. At the very outset it may be pointed out that against the impugned judgment of the Shariat Court, dated 26-9-2001, whereby his conviction order was maintained, appeal was filed by the appellant on 8-12-2001 which, on the face of it, appears to be barred by limitation. Section 25(1) of the AJ&K, Islamic Penal Laws Enforcement Act, 1974 postulates that against the judgment of the District Criminal Court appeal shall be filed before the Shariat Court within a period of six months and the same Court shall have the revisional powers, the limitation for which has been prescribed as sixty days. It has also been mentioned in the above section that against the judgment of the Shariat Court appeal in the Supreme Court shall be lodged within a period of sixty days and the same Court shall have the revisional powers, the limitation for which shall also be sixty days. Thus, the judgment of Shariat Court dated 26-9-2001 on the basis of which the conviction of appellant recorded by the trial Court and maintained by the District Court of Criminal Jurisdiction was upheld, shall be deemed to have attained finality as the appeal against it was hopelessly time-barred. Even no application was moved by the convict-appellant for the condonation of delay.

7. So far as the miscellaneous application filed by the convict appellant on 4-10-2001 is concerned, it is not visualized by any of the provisions of the Code of Criminal Procedure wherein it was simply stated that the convict-appellant be heard personally and the case be decided on merits. However, the fact remains that the learned Judge in the Shariat Court did not decide the case for default of appearance of the convict-appellant but on the merits. When the learned counsel for the convict-appellant, Mr. Ashfaque Hussain Kiani, was confronted with the situation as to under which provision of law the said application has been moved, he could not positively answer the query. However, he submitted that the Court has the jurisdiction of review of some mistakes apparent on the face of record which have been committed by the Court and a miscarriage of justice has resulted seeking the indulgence of this Court.

8. For the safer administration of justice, we heard the learned counsel for the appellant in detail and sought his explanation on the points which have not been resolved in accordance with law by the Shariat Court or which part of the evidence has not been appreciated in accordance with the accepted norms of appreciation of evidence. The learned counsel contended that recovery of "Chars" had been made by police in presence of police witnesses, therefore, the same cannot be relied upon, whereas at the place of recovery independent witnesses were available.

9. We have gone through the evidence of the prosecution minutely. The prosecution has failed to bring on record the presence of any independent witness on the place of recovery having been admitted by any of the witnesses of the prosecution. Therefore, the mere fact that the recovery of "Chars" was effected from the accused in presence of police witnesses is no ground for disbelieving such a recovery particularly so when the presence of any independent witness at the place of recovery has not been even suggested to the prosecution witnesses by the defence. It is also important to take note of the fact that no previous animus or grudge is attributed by the convict-appellant against the police nor it was alleged by the convict-appellant that the recovery of "Chars" was planted against the accused on the basis of some previous animosity. The law now stands settled that the police witnesses are as good witnesses as any E other witnesses, especially so when no enmity or motive on the part of police has been shown by defence for false involvement of the accused. In a case reported as Sajjad alias Sajo, v. The State 1996 MLD 1479 it was observed that police could not have any time or occasion to comply with the provisions of section 103, Cr.P.C. when the accused who was proclaimed offender had been arrested after having been empowered in a chase. No enmity or motive on the part of police had been shown by defence for false involvement of accused. The police officials having acted in honest and straightforward manner, credibility of their testimony could not be shaken. The conviction of accused was upheld in the circumstances. It was also observed that the police officials are as good witnesses as public witnesses unless proved to have any animus or motive for implication of the accused.

In another case reported as Mushtaq v. The State 1997 MLD 79 it was observed that the police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them and the plantation of articles in the particular circumstances of the case was not possible.

Thus, the argument advanced by the learned counsel for the convict-appellant that the evidence of police officials was not worthy of any credibility, having no substance in it, stands repelled, particularly when there is no allegation on behalf of defence against the police that they had any animus or motive to implicate the accused in a false case.

10. The learned counsel for the appellant also contended that the Court has the powers of review under the Code of Criminal Procedure. He in support of his contention relied on Faizullah v. The State 1983 SCMR 640, Ghulam Haider Shah v. State PLD 1988 FSC 38 and Zaman Iqbal v. The State 1992 MLD 90. The perusal of the aforesaid authorities shows and there is no cavil with the proposition that even on the criminal side the Supreme Court as well as the other Criminal Courts have the powers of review but in the instant case the powers of review could not have been exercised keeping in view the facts and circumstances of the case for the following reasons:--

(i) that the application moved by the convict-appellant was not coached as an application for review petition nor any prayer was made to this effect; and

(ii) that the review petition is always maintainable provided there is some patent mistake in the judgment on the face of it or where there is a clerical mistake.

None of the aforesaid ingredients have been satisfied by the convict appellant in his application nor he pointed out any such illegality, therefore, the miscellaneous application was also rightly dismissed by the Shariat Court.

11. Raja Ibrar Hussain Khan, the learned Advocate-General, while controverting the arguments raised by the learned counsel for the defence, submitted that there is a concurrent finding of facts recorded by the Courts below as well as the Shariat Court, therefore, the same need no interference by this Court.

12. We have carefully perused the evidence brought on record. There seems to be no misreading or mis appreciation of evidence on the part of Court below or the Shariat Court. Thus, in our considered: view, the Courts below as well as the Shariat Court committed no illegality in convicting the appellant.

In the light of what has been stated above, finding no force in this appeal, the same stands dismissed and the conviction of the convict-appellant recorded by the trial Court and confirmed and upheld by the District Criminal Court and the Shariat Court stands upheld.

N.H.Q./7/SC(AJ&K) Appeal dismissed.\