PLJ 2009 Cr.C. (Lahore
Present: Tariq Shamim and M.A. Zafar, JJ.
MALIK KHALID HUSSAIN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 292 of 2006, heard on 3.2.2009.
Police Witness--
----In any case police witnesses are as good witnesses as any other public witness as has been held by the Hon'ble Supreme Court of Pakistan in a number of cases. [P. 1103] D
Police--
----A.S.I.--Search the house--An Assistant Sub-Inspector of police cannot search the house without a warrant or investigate the case.
[P. 1103] E
2002 P.Cr.L.J. 440.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Prohibition (Enforcement of Hadd) Order, IV, 1979--Arts. 3 & 4--Conviction and sentence--Challenge to--Recovery of huge quantity of narcotic--A.S.I. received secret information--Raid was conducted--Appellant and his co-accused was escaped--On search of the house by police two bags containing poppy straw were recovered--Both police witnesses were cross-examined--Though the statements of these witnesses the account furnished by them was credible and consistent with each other on all material aspects--There was no material discrepancy or improvement made by these witnesses--Members of the public are generally reluctant to become witnesses in such like cases out of fear of reprisals from the accused side--In any case police witnesses are as good witnesses as any other public witness--There was no plausible reason for the police to falsely implicate the appellant and that too by planting such a huge quantity of narcotic on him--Appellant has rightly been convicted and sentenced--Conviction maintained--Appeal dismissed. [Pp. 1102 & 1103] A, B, C, D, F & G
Mr. Zafar Iqbal Chauhan, Advocate for Appellant.
Mr. Ahsan Rasool Chattha, Deputy Prosecutor-General for State.
Date of hearing: 3.2.2009.
Judgment
Tariq Shamim, J.--Appellant, Malik Khalid Hussain, was tried by the learned Special Judge for C.N.S.A., Faisalabad, in case bearing F.I.R. No. 1156/03, registered with Police Station Saddar, Faisalabad, for offence under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order IV, 1979 read with Section 9(c) of the Control of Narcotic Substances Act, 1997. The learned trial Court, vide his judgment dated 5.4.2005, found the appellant guilty of the said charge, convicted him under Section 9 read with section 6 of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life with a fine of Rs.2,00,000/- and in default to undergo imprisonment for two years.
2. Precisely the allegation against the appellant, according to the F.I.R. (Ex.PA/1), was that on 26.10.2003, Muhammad Ali, A.S.I, along with Khadim Hussain Constable was on patrolling duty and present at Jaranwala Road. On receiving spy information that Malik Khalid, appellant, and Nawaz alias Achha were selling narcotics, he arranged a raiding party and raided the place. On seeing the police officials, Khalid and Nawaz managed to escape while leaving two bundles of poppy straw (denthal post) weighing 40 k.g. each, which were taken into possession by the police vide recovery memo Ex.PB. 250 grams poppy straw was separated from each bag and sealed into parcels which were sent to the Office of the Chemical Examiner for analysis. The remaining poppy straw was also sealed into two parcels and consequently the aforementioned F.I.R. was lodged. Malik Khalid Hussain, appellant, was arrested in the Court on 10.12.2003 and sent to the judicial lock up by the orders of Ilaqa Magistrate whereas Nawaz alias Achha was declared innocent during the investigation.
3. After supply of copies as required under the law, charge was framed against the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced Abbas Ali Constable (PW-1), Muhammad Ali A.S.I., C.I.A. Sadar, Faisalabad (PW-2), Abid Hussain Head Constable, Police Station Jaranwala, Faisalabad (PW-3), Naubahar Constable (PW-4) and Qaiser Younas, Sub-Inspector, Police Station Mamu Kanjan, Faisalabad (PW-5). The learned. S.P.P. after tendering the report of the Chemical Examiner (Ex.PI) closed the prosecution evidence.
4. Thereafter the statement of the appellant was recorded under Section 342 Cr.P.C. He denied the prosecution case. In response to the questions "why the PWs have deposed against you" and "why this case against you" Khalid, appellant, replied as under:--
"All the PWs are the police officials and are direct subordinate to the complainant, I.O. of the case. "
"I am innocent. The said case was falsely registered by the I.O. with the connivance of my rival Zawar Hussain and Duli who are also tout of the police. The I. O. has registered the case just to show his efficiency in his department. "
The appellant did not opt to appear as his own witness to disprove the allegation levelled against him as required under Section 340(2) Cr.P.C. nor did he produce any defence evidence.
5. The learned trial Court after concluding the trial convicted and sentenced the appellant as stated above. The appellant has challenged his conviction and sentence through the instant appeal.
6. The learned Counsel for the appellant has contended that all the witnesses are police witnesses; that the police entered the house of the appellant without first obtaining permission from the Area Magistrate; that the appellant was not known to the police therefore it was incumbent to hold an identification parade which was not done; that co-accused Nawaz was not even challaned by the police; that there was no evidence to show that the house from where the narcotic was recovered was rented by the appellant and that the judgment of the learned trial Court was not based on proper appraisal of evidence therefore, it was liable to set aside and the appellant was entitled to be acquitted.
7. The learned Deputy Prosecutor General has vehemently opposed the appeal and has maintained that the learned trial judge had rightly convicted the appellant on the basis of credible prosecution evidence and that the objections raised by the learned counsel for the appellant were technical in nature and not sufficient to vitiate the trial.
8. We have heard the learned counsel and have gone through the evidence on the record.
9. The prosecution case as narrated in the F.I.R. is that on 26.10.2006 Muhammad Ali A.S.I, received secret information in consequence whereof a raid was conducted, and on seeing the police party the appellant and his co-accused managed to escape. However, on search of the house two bags containing poppy straw weighing 40 kilograms each were recovered. From each bag 250 grams of poppy straw was separated, sealed into parcels along with the remaining poppy straw and taken into possession vide memo Ex. PB. In support of the recovery Abbas Ali constable and Muhammad Ali A.S.I, entered the witness box as PW-1 and PW-2 respectively. Both the witnesses were crossed examined at length by the defence but failed to make any gain out of this exercise. After having gone through the statements of these witnesses we have noted that the account furnished by them is credible and consistent with each other on all material aspects of the case. With the exception of minor discrepancies, which are natural, there is no material discrepancy or improvement made by these witnesses. The learned defence counsel has failed to point out any ill-will or previous enmity of the police with the appellant in support of the contention that the appellant had been falsely implicated in the case. Even otherwise, it is inconceivable that the police would go to the extent of planting such a huge quantity of narcotic on the appellant.
10. Insofar as the contention of the learned counsel for the appellant that no public witness was associated with the recovery proceedings is concerned, we may observe that members of the public are generally reluctant to become witnesses in such like cases out of fear of reprisals from the accused side. In any case police witnesses are as good witnesses as any other public witness as has been held by the Hon'ble Supreme Court of Pakistan in a number of cases.
11. The other contention of the learned counsel for the appellant that an Assistant Sub-Inspector of police cannot search the house without a warrant or investigate the case, it is pointed out that in the case of Nazar Muhammad v. The State (2002 P.Cr.L.J. 440) the controversy in this regard was laid to rest by this Court by observing as under:
"Be that as it may, even if Irshad Ahmad, A.S.I, was not competent or authorized to search and arrest the petitioner or conduct the investigation of this case still the actions taken by him and the investigation conducted by him may not stand vitiated as according to sub-section (2) of Section 156 Cr.P.C. no proceeding of a Police Officer can be called in question on the ground that the case was one which such officer was not empowered to investigate. The Control of Narcotic Substances Act, 1997 does not provide a penalty for non-observance of the provisions of Section 21 thereof transforming an otherwise directory provision into a mandatory one and, thus, such a defect in the search, arrest and investigation may be termed as only an irregularity and not an illegality vitiating the entire process."
12. It has also been observed by us that the report of the chemical examiner was not questioned by the defence at the trial although it was duly put to the appellant. The report having been returned in the positive corroborates the evidence furnished by PW-1 and PW-2.
13. Now adverting to the defence plea taken by the appellant at the trial of being falsely implicated in the case by the Investigating Officer with the connivance of his rivals namely Zawar Hussain and Dulla, it has been noticed that the appellant has failed to substantiate his plea at the trial through any evidence. Even otherwise, as stated earlier, there is no plausible reason for the police to falsely implicate the appellant and that too by planting such a huge quantity of narcotic on him.
14. The evidence has been appreciated by the learned trial Court in its true perspective and on the basis thereof the appellant has rightly been convicted and sentenced by the learned trial Court. Accordingly, we maintain the conviction and sentence of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and dismiss the appeal.
(A.S.) Appeal dismissed.
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