Police is not statutory prohibited for reinvestigating a case

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PLJ 2012 Cr.C. (Quetta) 226 (DB)

Present: Ghulam Mustafa Mengal and Muhammad Hashim Khan Kakar, JJ.

ABDUL JABBAR--Appellant

versus

STATE--Respondent

Crl. Appeal No. 232 of 2009, decided on 23.6.2011.

Principle--

----Police or customs authorities are not statutorily prohibited from investigating a case as many times as they choose and can file a fresh challan in the Court as a result of subsequent investigation or events.      [P. 230] A

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Conviction and sentence awarded to appellant by trial Court--Challenge to--Allegation of--140 packets of recovered charas--Held: If the law requires something to be done in a specific manner, it should be done as law requires and departure is not permissible--The police or any other investigating agency has no unfettered powers to place a document on record in gross violation of the prescribed manner and thus, the trial Court has wrongly placed reliance upon the report of chemical expert which is not an admissible piece of evidence being procured and tendered illegally--Appeal dismissed.     [Pp. 230 & 231] B

Mr. Muhammad Qahir Shah, Advocate for Appellant.

Chaudhry Mumtaz Yousaf, Standing Counsel for State.

Date of hearing: 31.5.2011.

Judgment

Muhammad Hashim Khan Kakar, J--By this criminal appeal, judgment dated 29th June, 2009, passed by Special Judge, Control of Narcotic Substances Act, 1997, Quetta, has been challenged, whereby appellant AbdulJabbar was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer life imprisonment RI with fine of Rs. 100,000/-, in default whereof to further undergo SI for one year, with benefit of Section 382-B Cr.P.C.

2.  Mr. Muhammad Qahir Shah, learned counsel for the appellant, contended that the prosecution has failed to prove its case against the appellant and the trial Court on misreading and wrong conclusion of evidence convicted him. It was next argued that, out of alleged 140 packets of recovered charas, wrapped in plastic bags in rods shape, only 10/10 grams charas from 10 packets were obtained and sent to the expert for chemical analysis, thus, at the most, if the prosecution case is taken in toto, the appellant could only be convicted for the narcotic sent to the expert. He further contended that during course of trial, when the statements of PWs 1 and 2 were recorded, the investigating officer, just to fill up the lacunas, without obtaining prior permission of the trial Court, had sent the remaining material to the expert for analysis, which is not permissible under the law.

3.  Chaudhry Mumtaz Yousaf, learned Standing Counsel, appearing on behalf of State, conceded to the arguments of appellant's counsel and admitted that the narcotic recovered from the appellant was in shape of rods, out of which, 10/10 grams charas from 10 packets in shape of rods were sent to the chemical expert for analysis, however, he opposed that the investigating officer has not authority to send the substance after submission of thechallan before the Court.

4.  We have considered the arguments of learned parties' counsel and have gone through the record including the impugned judgment. It is the case of prosecution that upon receipt of secret information, in respect of transportation of huge quantity of narcotics by means of a Toyota Pickup bearing Registration No. KH-4084 from Chaman to Quetta, by the Director, Directorate of Intelligence and Investigation (FBR), Karachi, a raiding party, under the supervision of Jaffar Hussain, S.I.O., was constituted, comprising of Ilyas Ahmed, S.I.O., Syed Adnan Kafeel, I.O,. Qasim Ali Alvi, I.O., driver Niamat Bhatti, Sepoy Abdul Malik and Sobedar F.C. KhairBakhsh. It was alleged that on 13th January, 2008, during the course of surveillance, the said vehicle was intercepted at Baleli check post with the help of police and FC authorities. It was further alleged that on search, secret cavities were found in the vehicle and since there were no proper equipments to search the vehicle on spot thoroughly, therefore, the vehicle along with appellant was brought to Directorate of Intelligence & Investigation, Sariab Road, Quetta. After making entry in the Roznamcha, at about 06:00 p.m., the detailed search was carried out by de-casing the specially designed cavity by applying different tools and techniques, resulting into recovery of 170 kilograms charas wrapped in 140 packets. Out of the recovered charas, 30 numbers of samples from 10 packets (three samples from each packet, weighing 10 grams approximately) were separated and sealed into parcel for the purpose of chemical analysis, while the remaining charas was also sealed in separate parcels. The vehicle and charas were seized, appellant was arrested and FIR bearing No. V-Seiz/DCI/QA/06/2008 was registered against him.

PW-4 Syed Adnan Kafeel, Intelligence Officer was entrusted investigation, who sent the samples of recovered charas to FSL, which were initially drawn from 10 packets and obtained expert's report Ex.P/4-A. Subsequently, he sent samples of recovered charas from all the packets and received report of the expert Ex.P/4-B and after completion of formal investigation, submitted incomplete challan Ex.P/4-C and the appellant was sent up to face the trial before the Special Judge, CNS Act, Quetta.

The charge was read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to substantiate the charge, produced four witnesses. The appellant was examined under Section 342Cr.P.C. He recorded his statement on oath as provided under Section 340(2) Cr.P.C. and also produced DW-1 Abdul Ghafoor, DW-2 Inayatullah, DW-3 Jamal-ud-Din and DW-4 Wazir Muhammad in his defence.

PW-1 Qasim Alvi, Intelligence Officer is complainant of the case and also recovery witness, deposed that on receiving secret information from the Director on 13th January, 2008, a raiding party was constituted under the supervision of Jaffar Hussain, Senior Intelligence Officer. At about 03:00 p.m., they were present at Baleli check post, a vehicle pick-up bearing Registration No. KH-4084 was intercepted being driven by the appellant. The vehicle along with appellant was brought to Police Station Airport and entry was made in the Roznamcha and thereafter, they went to Intelligence Office, Custom Sariab road, Quetta, as the necessary equipments were not available with them to properly search the vehicle. On search, 140 packets of Charas, weighing 170 kilograms, were recovered from the secret cavities of the vehicle. Appellant was served with a notice under Section 22 of the CNS Act and FIR was registered. He produced the notice and FIR as Ex.P/1-A and Ex. P/1-B. Recovery memo Ex. P/1-C was prepared which was signed by him. Personal search of the accused was conducted and memo was prepared as Ex.P/1-D. Earlier the simples were separated for chemical analysis and in this regard a memo Ex.P/1-E was prepared, over which he identified his signatures. The inventory memos Ex. P/1-F andEx.P/1-G in respect of charas and vehicle were respectively prepared, which were signed by him. He produced the recovered charas and vehicle in the Court as Art.P/1 to Art.P/12.

PW-2 Abdul Malik, Sepoy Customs Intelligence and PW-3 Syed Jaffar Hussain, Senior Intelligence Officer, Customs, are also recovery witnesses of the alleged recovered contraband material and reiterated the statement of PW-1. It may be noted that supplementary statement of PW-2 was also recorded on 6th May, 2009, whereas PW-4 Syed Adnan Kafeel, Intelligence Officer, is the investigating officer.

5.  It appears from the record that the prosecution witnesses were cross-examined at length, but nothing has come on record favouring the appellant or materially affects the case of prosecution to believe that charas was not recovered from Toyota pickup, which was being driven by the appellant at the relevant time. The prosecution has proved its case in respect of recovery of charas from the pickup, which was in possession and under control of the appellant, however, the prosecution witnesses in their account stated that the charas, recovered from the appellant, was in shape of rods, out of which, 10/10 grams charas from 10 packets, in the shape of rods, were sent to the chemical expert for analysis. The report of chemical examiner Ex.P/4-A dated 28th March, 2008 confirms that ten sealed parcels of 10/10 grams charas were received by him for test, meaning thereby initially only 100 grams of charas were sent to the expert for analysis. It may be noted that the alleged recovered charas was in shape of rods, weighing 170 kilograms, consisting 140 packets. There is nothing available on record, showing samples for examination by chemical examiner were taken out from all the packets or each rod to prove that entire rods/packets containing charas.

6.  The record reveals that, after submission of challan Ex.P/4-C and examination of two witnesses, on 02-08-2008, the investigating officer separated and prepared 130 parcels, weighing 5 grams charas each, for the purpose of examination. The same were sent to expert by hand through a customs officer and report Ex.P/4-B was produced by the investigating officer. The record also reflects that the said report Ex.P/4-B was never submitted before the trial Court through a proper and supplementary challan as required under Section 173 of the Cr.P.C, rather it has been placed on record by the investigating officer at the time of recording his statement, while picking it out from his pocket in spite of the objection raised by the defence counsel.

7.  The record also reflects that for the second time, samples were separated and sent to the chemical expert after lapse of about seven months i.e. on 02-08-2008 after the arrest of appellant on 13-01-2008. Nothing has come on record, which could show that during such period of time where the charas was lying whether in the Customs Intelligence office or somewhere else? The prosecution was duty bound to place on record the entire evidence in order to prove its case against the appellants effectively beyond any shadow of doubt, but the evidence, which has been brought on record, clearly missing the chain, as it has nowhere come on record as to why and what circumstances, the investigating officer, at the time of recovery, instead of obtaining the samples from the whole quantity of charas, had initially obtained samples from 10 packets. Moreover, according to the report Ex.P/4-B, the expert received the samples from a customs officer, but the entire record does not disclose the name of said officer, nor the prosecution could bother to produce him before the Court in order to testify the allegation of sending samples to the expert for the second time. In this regard, we placed reliance on a judgement-reported in 1993 P.Cr.L.J. 2287 (FSC).

8.  It is well established principle of law that the police or customs authorities are not statutorily prohibited from investigating a case as many times as they choose and can file a fresh challan in the Court as a result of subsequent investigation or events. We have no doubt in our mind that the powers of police to reinvestigate the case or submit subsequent challan are unlimited and there is no law precluded the police from reinvestigation the case, however, the fact that any document, which the prosecution intended to rely upon, should be submitted before the Court through proper and subsequent challan as envisaged under Section 173 of the Cr.P.C. If the law requires something to be done in a specific manner, it should be done as law requires and departure is not permissible. The police or any other investigating agency has no unfettered powers to place a document on record in gross violation of the prescribed manner and, thus, the trial Court has wrongly placed reliance upon the report of chemical expert Ex.P/4-B, which is not an admissible piece of evidence being procured and tendered illegally.

9. Another fact of the case, which needs mention here, is that whether Ex.P/4-B was required to be supplied to the appellant as required under Section 265-C of the Code of Criminal Procedure, 1898 before commencement of trial. The object of Section 265-C of the Cr.P.C. appears to be to meet the vacuum created by the abolition of commitment proceedings and to make available to the accused all the available evidence, which the prosecution have for the unfolding of the true case before the Court. The purpose is that the accused can known before he is sent up to stand trial in a charge punishable with death or imprisonment for life as to what evidence he would have to meet at the trial in order to take up a proper defence plea. The interval of seven days emerged under Section 265-C of the Cr.P.C. is also significant, because it is meant to give the accused sufficient time to study the allegations against him and to prepare his plea in defence. Admittedly and surprisingly, placing on record Ex.P/4-B before the Court by the investigating officer has caused serious prejudice to the appellant. The non-compliance of Sections 173 and 265-C of the Cr.P.C., in peculiar circumstances of the case, has rendered Ex.P/4-B as inadmissible piece of evidence, which cannot be relied upon in any manner.

10.  We, after discarding the expert's report Ex.P/4-B, while following the dictum laid down in the judgment-reported in PLD 2004 SC 858, are of the view that the prosecution has proved its case against the appellant only to the extent of 100 grams charas. The appellant is in custody since 13th January, 2008, thus, the conviction and sentence awarded to the appellant be treated as already undergone.

Appeal merits dismissed.

(A.S.)   Appeal dismissed