MUHAMMAD HANIF vs THE STATE

ORDER

' JAVED IQBAL, J.---As a result of raid conducted pursuant to a tip-off the petitioner was apprehended at railway station by Said Khan (A.S.-I./complainant) Incharge Railway Police, Mianwali alongwith police party and 5-1/2 kilograms opium was recovered from the petitioner and a case was accordingly registered under section 9 of the Control of Narcotic Substances Ordinance of 1995 and after the conclusion of trial the petitioner was convicted under section 9 of the Control of Narcotic Substances Ordinance of 1995 and sentenced to suffer life imprisonment with fine of rupees one million and in case of default to further undergo R.I. For five years with benefit of section 382-B, Cr.P.C. Vide judgment, dated 13-8-1997 by learned Sessions Judge, Mianwali. Being aggrieved an appeal was preferred which was dismissed, however, the sentence of life imprisonment was altered to that of ten years' R.I. With fine of rupees half million and in case of default to suffer R.I. For one year with benefit of section 382-B, Cr.P.C. By learned Division Bench of Lahore High Court, Lahore.

2. It is mainly contended by Ch. Hasan-ul-Haq Bhalli learned Advocate Supreme Court on behalf of petitioner that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice because the factum of enmity, alleged at the time of arrest of the petitioner with Said Khan (A.S.-I./complainant) duly established on record has been ignored without any rhyme and reason. It is urged with vehemence that since the investigation was conducted by as officer who was below the rank of Sub-Inspector in violation of the mandatory provisions as contemplated under sections 21 and 22 of the Control of Narcotic Substances Act, 1997 and thus trial being void ab initio no conviction could have been awarded. It is next contended that the raid was conducted in a thickly populated area where some private persons could have -been associated as witnesses and thus the provisions as contained in section 103, Cr.P.C. Were ignored deliberately which resulted in serious prejudice. It is also contended that on account of mala fides Said Khan (A.S.-I./complainant) had shown undue interest in the investigation on few occasions after it was assigned to some other Investigating Officer. It is argued that a false and concocted case was got registered at the behest of Said Khan, (A.S.- I./complainant) and no independent evidence is available warranting conviction of the petitioner.

3. We have carefully examined the respective contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have perused carefully the judgment, dated 13-8-1997 passed by learned Sessions Judge, Mianwali, and the judgment impugned. We have thrashed out the entire evidence with the assistance of learned Advocate Supreme Court on behalf of petitioner. After having careful scrutiny of the entire record we are of the view that prosecution has established the factum of recovery beyond shadow of doubt and thus proved the accusation to the hilt. We are not persuaded to agree with learned Advocate Supreme Court on behalf of petitioner, that since the raid was conducted and investigation made by an unauthorized police officer in violation of the mandatory provisions as contained in sections 21 and 22 of the Control of Narcotic Substances Act, 1997 the whole trial has vitiated for the simple reason that arrest, seizer and investigation by an incompetent police officer would not vitiate the trial and at the best such an irregularity can be cured under section 537, Cr.P.C. As it has caused no prejudice to the petitioner. In this regard we are fortified by the dictum laid down in State v. Bashir (PLD 1997 SC 408). A similar proposition was examined in case Shivbhat v. Emperor (AIR 1928 Bombay 162) wherein it was held as under:-- "A conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered; and the question whether that evidence has, in the first place, been elicited by an Inspector or by a Sub-Inspector is of very minor importance and does not really affect the result of a trial, except to this extent that the theory is that the higher the rank of the police officer investigating, the more careful and unimpeachable his enquiry is likely to be.

Therefore, an irregularity occasioned by a Sub-Inspector investigating into an offence, while investigation should have been made by an Inspector, is curable by section 537."

4. It is worthmentioning that raid was conducted as a result of tip-off by Said Khan (A.S.- I./complainant) when he was patrolling at the railway station and it was not possible for him to have completed the time consuming formalities at the cost of the disappearance of the petitioner.

The contention concerning violation of section 103, Cr.P.C. Seems to be fallacious when examined in the light of provisions as contained in section 29 of the Act which provides exclusion of section 103, Cr.P.C. Even otherwise the reluctance of general public to become witness in such-like cases has by now become a judicially recognized fact and there is no option left but to consider the statement of an official witness as no legal bar has been imposed in this regard. If any authority is needed reference can be made to Hayat Bibi v. Muhammad Khan (1976 SCM R 128), Yaqoob Shah v.

The State (PLD 1976 SC 53). The police officials are equally good witnesses and could be relied if their testimony remains unshattered during cross-examination. In this regard reference can be made to Muhammad Naeem v. State (1992 SCM R 1617), Muhammad v. State PLD 1981 SC 635.

5. We have also adverted to the question of alleged enmity between petitioner and that of Said Khan (A.S.-I./complainant). In our view the alleged enmity was not of such a grave nature which could prompt Said Khan (A.S.-I./complainant) to get the petitioner falsely implicated by planting 5- 1/2 kilograms of opium which was recovered as a result of search by the police party and how it could have been planted in presence of countless persons which according to learned Advocate Supreme Court must have been available at the railway platform which admittedly was not a deserted place. Insofar as the keen interest of Said Khan (A.S.-I./complainant) in conducting investigation after its assignment to other Investigating Officer is concerned, it transpires from record that it was so done by Said Khan (A.S.-I./complainant) at the direction of Investigating Officer. Muhammad Bashir (P.W.7) who was deputed for investigation as mentioned in a categoric manner while answering one of the questions during cross-examination that the Said Khan (A.S.- I./complainant) had conducted investigation after the same was assigned to him at his instructions. The factum of recovery has been proved and there is no doubt that the substance allegedly recovered was found opium.It is worthmentioning that no question worth the name was asked from Muhammad Bashir (P.W.7/Investigating Officer) regarding the alleged enmity between Said Khan (A.S.-I./complainant) and that of petitioner. It has also come on record that initially investigation was conducted by Said Khan (A.S.-I./complainant) being Incharge of Railway Police, Mianwali, and no other officer of higher rank was available at the police post by whom the investigation could have been conducted.

' Muhammad Bashir (P.W.7), Sub-Divisional Police Inspector was subsequently deputed by Superintendent of Police Railway, Rawalpindi, to conduct the investigation by whom the needful was done.

6. We have examined the defence plea which does not appear to be convincing as nothing has come on record to show that one maund opium was recovered from one Missal Khan out of which 5-1/2 kilograms was planted upon the petitioner. No case whatsoever was got registered against Missal Khan for the recovery of huge quantity of opium on the basis whereof it could be inferred that 5-1/2 kilograms was planted upon the petitioner which appears to be a figment of imagination. The statement of defence witness namely Abdul Qadir renders hardly any assistance to the case of petitioner. It is noticeable that the apprehension at the railway platform and recovery of pocket diary (Exh.P.W.3) were never denied.

7. In the light of foregoing discussion it can be concluded safely that petitioner was apprehended at Railway Station Mianwali and 5-1/2 kilograms of opium was recovered and thus prosecution has succeeded in establishing the guilt of petitioner. The conclusion arrived at by the learned trial and Appellate Courts being well based hardly calls for any interference. The petition being meritless is dismissed and leave refused.