JUSTICE JAVED IQBAL (MEMBER).---This appeal, with leave of the Court, is directed against the judgment dated 20-10-1999 passed by learned Single Judge of the Federal Shariat Court of Pakistan, Islamabad, whereby the appeal preferred on behalf of appellant has been dismissed and judgment dated 6-8-1999 passed by learned Sessions Judge/Zila Qazi, Chitral whereby the appellant was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to undergo R.I. For five years and fine of Rs,10,000 and in default of payment of fine to suffer further rigorous imprisonment for one year has been kept intact except the sentence of whipping.
2. Leave was granted by this Court vide order dated 1-1-2001 which is reproduced herein below for ready reference:-- "The main contention of the learned counsel appearing for the petitioner is that the provision of section 103, Cr.P.C. Have not been complied with before the search was conducted as only one person from public was associated when the search was made, who resiled at the trial. He referred to Iltaf Hussain v. The State 1996 SCM R 167 and Muhammad Mansha v. The State 1997 SCM R 617.
2. The learned Additional Advocate-General, who is present on notice, submitted that the search in this case was not made under section 103, Cr.P.C. But it was conducted under the provisions of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979.
3. We grant leave to consider this legal aspect and also to determine whether the evidence of the four police officers, who supported the recovery, can be brushed aside on account of violation of section 103, Cr.P.C. Moreover, the learned counsel is directed to bring on record the search warrant issued in this case."
3. We have heard Mian Hissamuddin, learned Advocate Supreme Court on behalf of appellant and Ch. Muhammad Akram, learned Advocate Supreme Court for State at length. We have examined carefully the judgment passed by learned trial Court as well as the judgment impugned. We have thrashed out the entire evidence with eminent assistance of learned counsel on behalf of the parties. After having gone through the entire record of the case we are of the considered view that factum of recovery has been proved beyond shadow of doubt. The statement of recovery witness namely Bahadur Khan (P.W.5)/Police Constable duly corroborated by Inayatullah (P.W.2)/Sub-13 Inspector, has rightly been considered and believed by the learned Courts below. Bahadur Khan (P.W.5) was subjected to lengthy cross-examination but nothing advantageous could be elicited rendering any assistance to the case of appellant. He had no rancour or animosity against the appellant and no remote. Suggestion was even made in this regard. In the absence of any enmity the question of false implication of the appellant by Bahadur Khan (P.W.5) is not conceivable. We are not persuaded to agree with the submission of Mian Hissamuddin, learned Advocate Supreme Court on behalf of appellant that the statement of Bahadur Khan (P.W.5) being an official witness and Police Constable should have been discarded for the reason that it is well-settled by now that the statement of an official witness in the absence of any serious enmity can be relied upon if his testimony remained unshattered. In this regard we are fortified by the dictum laid down in the following cases:-- Malik Aman v. State 1986 SCM R 17; Muhammad Shah v. State PLD 1984 SC 278; Muhammad v. State PLD 1981 SC 635; Abdul Hameed v. State 1986 SCM R 11; Abdul Hameed v. State PLD 1985 FSC 410; Sarfraz Durrani v. State PLD 1987 FSC 22.
4. The alleged enmity existing between Javed Khan, H.C. And appellant would have no substantial effect on merits of the case. It is not the case of appellant that the alleged recovered heroin and opium was falsely planted by Javed Khan, H.C. The appellant has succeeded in bringing it on record that Javed Khan, H.C. Was attached with the Superintendent of Police and used to roam in the city in the official jeep meant for the Superintendent of Police but this aspect of the matter has no nexus whatsoever with the commission of alleged offence and the overwhelming incriminating material cannot he discarded on this score as pressed time and again by the learned Advocate Supreme Court for appellant. No doubt that Rehmat Jalal (P.W.1) was declared hostile but he had admitted in a categorical and unequivocal manner that recovery memo. Was got signed by him. It is not the case of appellant that signatures of Rehmat Jalal (P. W.1) were obtained on a plain paper.
It was also not so stated by Rehmat Jalal (P.W.1) himself. There is no cavil with the proposition that the statement of hostile witness cannot be discarded altogether and can be taken into consideration subject to availability of corroboration. It is bounden duty of the Court that such evidence should be considered and determined as to whether any part of it is worthy of belief, if examined, in the light of other incriminating material and evidence which has come on record. In this regard we are fortified by the dictum laid down in cases titled Zahid Khan v. Gulsher 1972 SCM R 597 and Munawar Khan v. State 1975 SCM R 119. The factum of recovery has been established which lends full corroboration to the statement of Rehmat Jalal (P.W.1) by whom the recovery memo. Was signed without any protest.
5. We have also adverted to the contention of learned Advocate Supreme Court that search warrant duly issued by the Magistrate should have been executed by the S.H.O. Himself instead of the police party for the reasons that S.H.O. Had reached the shop of the appellant from where the heroin and opium was recovered and he remained associated with the process of recovery.
Besides that the search warrant was never issued in the name of S.H.O. And it could have been executed by the police.
6. The provisions as contained in section 103, Cr.P.C. Were adhered to and minor lapses on the part of police can be ignored as it has caused no prejudice to the appellant. The reluctance of general public to 'become witness in such-like cases against well-organized and a resourceful drug mafia hardly warrants any elaboration.
7. There is no denying the fact that the entire recovered heroin and opium were not produced before the Court which is not a mandatory requirement as one gram each of the heroin and opium was sent to Chemical Examiner by whom a positive report was furnished. The submission of learned Advocate Supreme Court that the entire material should have been placed before the Court, seems to be in oblivion of the provisions as contained in section 516-A, Cr.P.C. It is an admitted fact that a certificate for destroying the recovered heroin and opium was produced in the Court to substantiate the factum of recovery.
8. In sequel to above mentioned discussion the prosecution has established the guilt by producing forthright and worthy of credence evidence. The conclusion as arrived at by the learned Federal Shariat Court being well-based and unexceptionable does not admit interference. The, appeal being devoid of merits is dismissed.