KAUSAR IRSHAD vs THE STATE

1. MUHAMMAD TAQI USMANI, J.---The petitioner seeks leave to appeal against the judgment of the Federal Shariat Court dated 6-11-1997 whereby his conviction under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, carrying a sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Kasur, was upheld while the fine of Rs,1,00,000 under that article was reduced to Rs,10,000 (Rupees ten thousand) and his conviction under Article 4 of the said Order was set aside.

2. The allegation against the petitioner is that on 23-10-1994 he was driving a Suzuki Van No,1391/LOU coming from Lahore side. A passenger, whose name was disclosed later on as Babu Hanif, was sitting on the passenger seat. Sayed Manzar Ali Shah, D.S.P. (C.I.A.), Kasur (P.W.6) had already a secret information about a Suzuki Van bearing the same number that it will transport a huge quantity of heroin on the basis of which information he had already formed a raiding party consisting Rana Faqir Muhammad, Inspector, Safdar Mehdi, S.I. (P.W.2), Muhammad Boota, A.S.I.

3. (P.W.5) and some other persons. It is alleged by the prosecution that on seeing, the police party the petitioner turned back towards Lahore. He was chased by the raiding party who succeeded to intercept him near Press Club, Kasur. The petitioner who was driving the Suzuki Van was apprehended while the passenger ran away. During the search of the Van two polythene bags were found lying on the back side of the Van. The bags were opened by Syed Manzar Ali Shah from where 28 packets, each containing one kilogram of heroin, were recovered. Thus the aggregate quantity of recovered heroin was 28 (twenty-eight) kilogram. The prosecution produced six P.Ws.

4. To substantiate the charge out of whom Safdar Mehdi P.W.2, Syed Manzar Ali Shah P.W.6 and Rana Faqir Muhammad P.W.4 furnished the ocular evidence of the fatum of recovery.

5. The plea of the petitioner while giving statement under section 342, Cr.P.C. Was as follows:-- I am innocent. I have been falsely involved in the case by the prosecution. Actually I am a driver of one Ijaz Rana who is the owner of the Vehicle No,1391/LOU. I was arrested from Lahore by D.S.P., P.W., Syed Manzar Ali Shah and they also took the van into possession when I was going to school to leave the children of Rana Ijaz. The police has planted this recovery upon me and left the real culprits of this case to show the efficiency to higher authority.

6. The learned counsel for the petitioner while arguing before us submitted that the officials who effected the recovery belong to C.I.A. Staff and they were not at all competent to conduct investigation in narcotic cases. We have noted that this point was raised before the learned Federal Shariat Court which has dealt with the issue satisfactorily in para. 7 of its judgment wherein the case of the State v. Muhammad Bashir (PLD 1997 SC 408) referred to by the learned counsel for the petitioner is also discussed and the relevant paragraph of the judgment is reproduced as follows:-- As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A. Personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C.

7. Expressly provides that: 'No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.' It is an admitted position that the C.I.A. Is part of the Police Force.

8. It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. May not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. Personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law.

9. This extract of the judgment is sufficient to prove that the trial is not vitiated by this irregularity.

10. ' The second point raised by the learned counsel was that while searching the vehicle the mandatory provisions of section 103 of Cr.P.C. Were violated. This submission is also without force because it is held in a number of cases decided by this Court (for example, PLD 1984 SC 278) that the requirement of section 103 of Cr.P.C. Does not apply to a running vehicle.

11. ' The learned counsel then pointed out to some discrepancies found in the statement of three witnesses of recovery about the preparation of recovery memo. with regard to the person who wrote the memo. But such minor- c discrepancies cannot be sufficient to negate the recovery of such a huge quantity of heroin.

12. ' The learned counsel then submitted that the version of 'the petitioner given in his statement under section 342, Cr.P.C. Should have been believed. He opined that the heroin was actually recovered from some other person which has been planted upon the petitioner. After perusing the record we find that there is no substance in the version given by the petitioner. Had it been so the alleged owner of the vehicle i.e, Rana Ijaz would have come forward to testify in favour of the accused. In fact, there is no rhyme or reason for the C.I.A. Officials to D point such a huge quantity of heroin on the petitioner while they had no enmity against him.

13. We do not find any infirmity or defect in the judgment of the learned E Federal Shariat Court. This petition is without force and is, therefore, dismissed and leave is refused.