MUSHTAQ AHMAD vs THE STATE
This criminal petition for leave to appeal was filed before the Supreme Court of Pakistan by the petitioner against the judgment of the Federal Shariat Court, which maintained his conviction under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 for possessing 2.5 kilograms of heroin. The primary legal questions concerned whether the raid conducted without a search warrant and without compliance with Section 103 of the Code of Criminal Procedure 1898 vitiated the conviction, whether police officials could serve as credible witnesses in the absence of independent witnesses, and whether the acquittal of a co-accused warranted the petitioner's acquittal. The Supreme Court dismissed the petition, upholding the conviction. The Court held that police officials are competent witnesses whose testimony cannot be discarded absent proof of enmity, especially where a large quantity of contraband was recovered. Furthermore, the absence of a search warrant was justified by urgency and because the suspected offence fell under Article 3, making it cognizable under Article 16(1)(a) of the Prohibition Order, 1979.
- Are police officials considered competent witnesses in narcotic recovery cases where no enmity against the accused is established?
- Does the failure to obtain a search warrant vitiate a raid and recovery when the police act on urgent secret information regarding a cognizable offence under the Prohibition (Enforcement of Hadd) Order, 1979?
- Does the acquittal of a co-accused on factual grounds automatically entitle another co-accused from whom contraband was recovered to an acquittal?
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Article 16(1)(a), Prohibition (Enforcement of Hadd) Order, 1979
- Section 103, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD TAQI USMANI, J---On 11-6-1992 Muhammad Rafique, Inspector Police Station Mangtanwala with other police personnel was present at More Khunda where on the basis of a secret information he arranged a raiding party and raided at the house of the petitioner Mushtaq Ahmad. The raiding party found Mushtaq Ahmed (petitioner) and his co-accused Mst. Sakina Bibi sitting in the Baithak. They recovered a tin (P-1) containing heroin. It was latter proved to be 2.5 kilograms in weight. F. I. R. To this effect was lodged on the same day by Muhammad Rafique Inspector and the accused were challaned in the Court of Judicial Magistrate Section 30, Sheikhupura.
2. At the trial three police officers namely, Muhammad Hussain SI (P.W.), Muhammad Akram SI (P.W.2) and Muhammad Rafique Inspector (P.W.3) proved the recovery from the house of the petitioner. The accused persons denied the charge against them but did not lead any evidence to defend the offence.
3. The learned trial Magistrate held the accused guilty of offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (Order 4 of 1979). The petitioner was sentenced to five years' rigorous imprisonment, ten stripes and a fine of Rs,15,000 or six months further simple imprisonment in case of default. His co-accused Mst. Sakina Bibi was also sentenced to five years'
R. I., two stripes and a fine of Rs,15,000.
4. On appeal before the learned Federal Shariat Court Mst. Sakina Bibi was acquitted and the conviction of the petitioner was maintained. However, the fine of Rs,15,000 was reduced to Rs,5,000 and the period of imprisonment in the case of default of payment of fine was altered to three months' rigorous imprisonment. The benefit of section 382-B of the Criminal Procedure Code was also extended to the petitioner. Hence this petition for leave to appeal.
5. We have heard the learned counsel for the petitioner who contended that the raid was conducted in clear violation of section 103, Cr. P. C. And without a search warrant. Therefore, according to him, it was illegal and could not form the basis for conviction of the appellant. He also contended that the versions of the prosecution witnesses that Mst. Sakina Bibi managed to escape from the spot after scaling over the wall was disbelieved by the Federal Shariat Court. Therefore, the evidence against the petitioner could also be discarded.
6. This point did not impress us. It is held in a number of cases that the police officials are as good witnesses as others. No enmity against them has been proved on the record and there is no reason why they should plant such a huge quantity of heroin upon the petitioner.
' The Inspector has expressly mentioned in the FIR that they had no A time to obtain search warrants from the Magistrate, therefore, they proceeded without it. Otherwise also they had a secret information that the petitioner is selling the heroin. Therefore, the allegation was of the commission of an offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 which is a cognizable offence e according to sub-Article 1 (a) of Article 16 of the Prohibition Order, 1979. Moreover, if Mst. Sakina Bibi has been acquitted on the ground that her presence at the spot and scaling over the wall was not believed by the Federal Shariat Court, it does not conclude that the petitioner was also innocent.
7. This petition is found without merit and is hereby dismissed.
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