Akhtar Zaman Malghani, J.--The judgment dated 10.6.2003 rendered by learned Special Judge Narcotics, Pishin in CNS Case No, 1/2003 has been assailed in the instant appeal, whereby; the appellant was found guilty under Section 9(c) of the Control of Narcotic Substances Act, 1997 (herein-after referred to as Act 1997) and sentenced to seven years R.I. with fine of Rs, 200,000/- or in default to further undergo two years S.I. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. Briefly stated, facts of the case are that on 12.12.2002, a case under Section 9(c) of the Act, 1997 was registered in Levies Station Chaman vide FIR No, 71 of 2002 on the report of Naimat Ullah Naib Risaldar wherein it was alleged that on the same day on receiving spy information that the appellant Abdul Rehman was indulged in narcotic business, he arrested him from a shop and on his pointation recovered 5.580 kilo grams baked charas, 500 grams raw charas, 2700 intoxicant tablets, two bottles Whisky, one Kalashnikov alongwith 152 live rounds. Three separate cases were registered against the appellant and after usual investigation the case in hand was submitted before the concerned Court.
3. At the commencement of trial charge was read over to the appellant to which he pleaded not guilty. Thereafter prosecution in order to substantiate accusation produced three witnesses. At the end of prosecution evidence the appellant was examined under Section 342 Cr.P.C. in respect of incriminating pieces of evidence appearing against' him in prosecution evidence which were denied by him. He also gave statement on oath and produced on witness in his defence.
4. The learned trial Court after evaluating the evidence on record and haring the parties found the appellant guilty under Section 9(c) of the Act, 1997 and sentenced him as mentioned above.
5. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate General and also gone through the impugned judgment. It is mainly contended by the learned counsel for the, appellant that according to the prosecution allegations the recovery was made at the instance and pointation of appellant from his house which was illegal because at the time of arrest the appellant was not accused for any offence and his detention was illegal, consequently any disclosure made by him or recovery pursuant to such disclosure could not be used against him within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984. He further contended that the prosecution has miserably failed to prove that the house from where the narcotic were allegedly recovered, was owned by the appellant or he was in possession of the same, as such; the conviction recorded against the appellant was bad in law and liable to be set aside: On the other hand the learned Assistant Advocate General submitted that the recovery was made on the instance and pointation of the appellant which was admissible under Article 40 of the Qanun-e-Shahadat Order, 1984 and was rightly believed by the learned trial Court. He further contended that as the recovery was affected on the pointation appellant, as such; there was no need for the prosecution to have proved that the house wherefrom narcotics were recovered, was owned or possessed by the appellant.
6. We have carefully considered the respective contentions put forth by the parties learned counsel in the light of evidence available on record. It may be seen that according to the prosecution allegation, pursuant to secret information the appellant was apprehended from a shop by Naimat Ullah, Naib Resaldar and on his disclosure and pointation he recovered 5,850 kilo grams baked charas, 500 grams raw charas, 2700 intoxicant tablets alongwith other contraband items from his house. In order to substantiate the accusation prosecution mainly relies upon the statement of P.W-1 Naimat Ullah, Naib Resaldar, P.W.-2 Ali Muhammad and P.W-3 Muhammad Shafi Naib Tehsildar. All these witnesses have supported the I prosecution version and despite lengthy cross- examination remained firm and could not be shattered. Even the defence has not controverted the recovery of narcotics but appellant's plea was that neither the recovery was made on the disclosure and pointation of the appellant nor the house from where the narcotics were allegedly recovered, belonged to him but was planted by Levies at the instance of one Naik Nazar.
It may be seen that under Article 40 of the Qanun-e-Shahadu Order, 1984 any fact deposed by a person when in custody of a police officer, in consequence whereof any fact or thing is discovered, then such deposed fact whether it amounts to a confession or not, is admissible against such person. Under Section 46(1) Cr.P.C. any person is said to have been arrested by a police officer or other person when he touch or confine the body of that person, unless there is submission to the custody by word or action. It is an admitted feature of the instant case that at the time of disclosure the appellant was in custody of the Levies Force though he was not formally charged or arrested in any offence. For the purpose of Article 40 the word "custody" does not necessary means detention or confinement Submission to custody by word or action under Section 46(1) Cr.P.C. could amount to custody. Similarly the expression "police custody" does not necessary means formal arrest, it also includes police surveillance and restriction on the movement of the person concerned by the Police. Even detention of a person by the police as a suspect amounts to his being in police custody. As soon as an accused or suspected person comes into the hand of a police officer he is, in the absence of clear evidence to the contrary, no longer at liberty and is, therefore, in custody within the meaning of Article 40 of the Qanun-eShahadat Order, 1984.
Admittedly the Levies authorities on receiving secret information suspected the appellant to be involved in narcotic business, as such; apprehended him which, in our view, amounts to custody within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984, no matter at that time no case was registered against him. To arrive on this conclusion we are fortified by the observations made by their lordships in the judgment reported in AIR 1934 Lahore page 150. Relevant observations are reproduced herein below:-- "Person suspected and treated as accused though not formally arrested is in custody of police-- Statements leading to discovery of things are admissible.
Where a person had been suspected from the beginning itself and was treated as accused person and was not kept under much restraint as he could hardly have absconded: Held: that he was in custody of police and statements leading to discovery of things were admissible".
In the above reported judgment the accused Aisha Bibi was suspected to have committed murder of Ahmed in and she was under the surveillance of the police during which on her information some "Dhatoora Husk" was recovered and question came before their lord ships for consideration whether such information which led to the recovery of "Dhatoora Husk" was admissible within the meaning of Section 27 of the Evidence Act (corresponding to Article 40 of Qanun-e-Shahadat Order, 1984) and their Lordships after considering the import and meaning of custody used in the said section came to the above conclusion.
Likewise in the judgment reported in AIR 1933 Calcutta 148 wherein the accused Sudan Sandra Bag led to recovery of Cocaine, was found guilty under Section 14 of the Dangers Drugs Act, though it was argued by his counsel that the statement of the accused which led to recovery, was made by him when he was not in police custody, as such; same was no evidence under Section 27 of the Evidence Act. Their lordships while repelling the contention so raised, observed that though the police officer deposed that he arrested the accused after finding of Cocaine but it was clear upon the evidence that he had interviewed the petitioner who was with him for considerable time and walked with him to the two places and pointed out the spots where the Cocaine might be found, as such; in the circumstances there was no doubt to the fact that the accused was in police custody at the moment when he made the statement as to the spot where cocaine could be found.
Similarly in the instant case the appellant on suspicion was interviewed by Resaldar and he disclosed about the presence of narcotics in his house and then led the Levies party to that place from where the baked/raw charas alongwith other contraband items were recovered, as such; he was in custody within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984 and any such information which led to the recovery of the contraband items, is admissible in evidence against him.
Adverting to the next contention of the learned counsel that the house from where the charas was recorded, did not belong to the appellant nor there was any evidence from which it could be inferred that the said house was owned or possessed by the appellant; it is suffice to observe that the levies force recovered the charas and other contraband items on the disclosure and pointation of the appellant, as such; there was no need to prove that the said house was owned or possessed by the appellant in view of the admissibility of such information and discovery/recovery made. In consequence thereof in evidence.
After re-appraisal of evidence we are satisfied that the appellant was rightly found guilty under Section 9(c) of the Act, 1997 for possessing 5.850 kilo grams baked charas and 500 grams raw charas by the learned trial Court and findings in this regard are un-exceptionable.
Up-shot of the above discussion is that we, find no merits in the instant appeal which is dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.