Appellant Ali Khan has filed this criminal appeal against the judgment dated 25-10-2010 delivered by learned Additional Sessions Judge/Izafi Zila Qazi, Buneer at Daggar whereby appellant has been convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to ten years Rigorous Imprisonment with fine of Rs, 50.000/- (Rupees fifty thousand only) in default whereof to further undergo one year Simple-Imprisonment. The benefit of Section 382-B of the Code of Criminal Procedure has been extended to the appellant.
2. The brief facts of the case have arisen out of FIR No, 387 dated 06-07-1996 lodged by the complainant Inspector/SHO Sirblund Khan are that on 06-07-1996 at 8.00 a.m. the complainant after receiving spy information made nakabandi on the main road leading towards Gul bandi and stopped Datsun/Pickup No, DR-751. On search, he recovered 5(1/2) kilograms heroin contained in different bags from the possession of accused Ali Khan, while six kilograms heroin was recovered from the possession of co-accused namely Zafar in the company of two ladies Mst. Sham-o-Sahar and Mst. Ishrat as such total 11-1/2 kilograms of heroin were recovered from the possession of both the above mentioned accused contained in different bags. Hence this case.
3. Investigation ensued as a consequence of registration of crime Report No, 387 dated 06.07.1996.
Inspector/SHO Sirbland Khan, after arrest, the accused, prepared murasala and dispatched to Police Station whereupon FIR was lodged as-Ex-PA. He prepared two parcels of heroin Ex.P-1 and Ex.P-2 attested by the PW-6 Feroz Shah and Bakhti, driver of vehicle (not produced). He took two grams heroin each from each bag of heroin and sent for analysis to Forensic Science Laboratory, Peshawar. He recorded statements of accused Zafar, Mst. Sham-o-Sahar and Mst. Ishrat, co- accused under Section 161 of the Code of Criminal Procedure. He produced the said accused before Court of Judicial Magistrate for recording their confessional statements under Section 164 of the Code of Criminal Procedure. Accused Zafar got his statement recorded under Section 164 of the Code of Criminal Procedure wherein he confessed his guilt. However, ladies accused Mst. Sham-o- Sahar and Mst. Ishrat, co-accused did not confess their guilt. He arrested Muhammad Jameel and Gul Fareen, co-accused on 13-07-1996. On the same day he recorded the statement 'of Ali Khan accused under Section 161 of the Code of Criminal Procedure. On 17-07-1996, he arrested accused Dand Yaseen and Nasib Dad and after interrogation, they were produced before the Court of Magistrate where they did not get their confessional statements recorded and subsequently they were sent to Judicial Lockup Accused Nazir, Shair Ali, Bazeem Khan, Haji Naeem Dad were declared absconders. He assigned non-bailable warrants of arrest of accused Nazir and Sher Ali to DFC who could not arrest them. The remaining recovered heroin of this case was destroyed on the order of the Court on 24-02-2009 by keeping its report as Ex-PW-4/6. Statement of driver namely Bakhti was recorded under Section 164 of the Code of Criminal Procedure Ex-PW-4/7. After completing investigation police submitted report under Section 173 of the Code of Criminal Procedure to the Court.
4. The case was tried against the accused Zafar, Gul Fareen, Muhammad Jameel, Naseeb Dad, Mst.
Dand Yaseen and Mst. Ishrat, co-accused separately tried in the Court of Sessions Judge/Zila Qazi, Buneer which delivered judgment dated 23-02-2000 and convicted accused Zafar under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to ten years Rigorous Imprisonment, 20 stripes with fine of Rs, 10,000/- (Rupees ten thousand only) in default whereof to further undergo six months Simple Imprisonment while the remaining accused were acquitted from the case. However, accused Ali Khan after getting bail absconded. Accused Nazir and Sher Ali who were discharged from this case by Illaqa Qazi Buneer/EAC were again summoned through challan by the learned Sessions Judge, Buneer.
5. On 28-04-2010 the learned trial Court framed charge against accused Ali Khan, Nazir Khan and Sher Ali khan under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 to which they pleaded not guilty and claimed trial.
6. The prosecution in order to prove its case examined nine witnesses. The gist of prosecution evidence is as follows:--
(i) Ghani Shah, ASI appeared as P.W-1. He on 14.07.1996, while SHO was on special duty, produced accused Jameel and Gul Fareen through application Ex.PW.1/1 and accused Ali Khan through application Ex.PW.1/2 before the Court of Magistrate for recording their statements under Sections 164/364 of the Code of Criminal Procedure. Accused Ali Khan did not make confessional statement and he was sent to judicial lock up while one day physical remand of accused Muhammad Jameel and Gul Fareen was given to him. On 15.07.1996 he again through application Ex.PW. 1/3 obtained one day physical remand of accused on direction of Sirbland Khan, SHO.
(ii)HC Sartaj was P.W-2. He was assigned non-bailable warrants against accused Nazir and Sher Ali under Section 204 of the Code of Criminal Producer Ex.PW.2/1 and Ex.PW.2/2 which he returned unexecuted before the Court along-with reports Ex.PW.2/3 and Ex.PW.2/4.. Thereafter, he was assigned proclamation warrants against accused under Section 87 of the Code of Criminal Procedure Ex.PW.2/5 and Ex.PW.2/6 and he made compliance of the same with his reports Ex.PW.2/7 and Ex.PW.2/8.
(iii)Jehangir Khan was PW-3. On 10.07.1996 when he was Magistrate-I/Illaq Qazi, Buneer recorded statement of accused (Zafar son of Muhammad Razam) under Sections 164/364 of the Code of Criminal Procedure after fulfilling all the legal formalities required under the law.
(iv)Inspector/SHO Sarblund appeared as PW-4. He was Investigating Officer and his role has already been mentioned in Para No, 3 of this judgment.
(v)PW-5, Sub-Inspector Shah Jabbar Khan had endorsed the order of interim bail granted to accused Sher Ali. Thereafter name of this accused was mentioned in subsequent challan as Exh.PW.5/1.
(vi)ASI Feroz Shah, P.W-6 corroborated statement of the complainant.
(vii) Retired Sub-Inspector Gul Bakhshad was P.W-7. He obtained non-bailable warrants against accused Ali Khan Ex.PW. 7/1 which he returned unexecuted with his report Ex.PW.7/2 and Ex.PW. 7/3.
(viii) PW-8, Sub-Inspector, Sher Muhammad Khan had recorded formal FIR No, 387 Ex.P.A.
(ix)PW-9, ASI Siraat Khan identified the signatures of SHO Abdul Rehman who had submitted subsequent challan after arrest of accused Ali Khan on 01.03.2010.
7. After closing prosecution evidence, statements of accused were recorded under Section 342 of the Code of Criminal Procedure. The accused neither opted to make their statements recorded under Section 340 (2) of the Code of Criminal Procedure nor produced any witness in their defence.
8. After hearing both the parties the learned trial Court convicted and sentenced the appellant as mentioned in opening para of this judgment.
9. Learned counsel for the appellant contended that:-- I. There are many material contradictions in the statements of prosecution witnesses.
II. The case property was not produced by the prosecution before the trial Court during the trial of the present appellant.
III. There are two FSL reports. As per prosecution evidence, two 'grams each from all the twelve packets were separated for the purpose of Chemical analysis. On 6.7.1996, two samples of two grams each were sent to the FSL for chemical analysis as such prospection proved only two kilograms of heroin which were allegedly recovered from the possession of both the accused which make the alleged recovery as well as report of FSL doubtful. On 15.10.1996, twelve samples from recovered heroin were again sent to FSL after the unexplained delay of 3 months and 10 days, which also create doubts in the prosecution case. In this respect learned counsel for the appellant replied .upon the following judgments:-- Muhammad Hashim Vs. The State PLJ 2004 SC 883 "that vide recovery memo. Ex.P/1-A, 4 grams of charas was taken out from total 288 rods. Nothing is available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of charas or some other commodity, having resemblance with the colour of charas like Oil Cake (Khal) etc. it is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of Section 9 is provided. Therefore, for such reasons, Act, 1997 has to be constructed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. are to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold that total commodity recovered from his possession was Charas. However, in given facts and circumstances of the case, it would be presumed that sample was taken out from only one road. As far as remaining rods are concerned, in absence of any sample taken out from them, it would not be possible to hold that they were- the rods of charas or otherwise. Therefore, taking into consider this aspect of the case, we are of the opinion that for such reason, the case of the prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable."
IV. Driver of vehicle was not examined by the prosecution as he was given up by the prosecution, which is also fatal for prosecution case.
V. The place of alleged occurrence/recovery was a busy road, but no private witnesses were associated with the alleged recovery. Compliance of Section 103 Cr.P.C. was not made. In such circumstances, alleged recovery becomes highly doubtful. Reliance was also placed on the following judgment:-- In the case of Nawab Ali Vs. The State NLR 1995 SD 374 The Hon'ble Court held as under:-- "Recovery of contraband from a public place without associating member of public with recovery, cannot be made basis of conviction under Sections 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979".
VI. The trial Court has taken into consideration the confessional statement of co-accused while convicting the present appellant. The present appellant was not tried jointly with the co-accused who made a judicial confession as such the confession of co-accused has no evidentiary value in respect of the present appellant. In this respect, reliance was placed on following judgment:-- In the case of Ahmad Sher and another Vs. The State NLR 1995 SD 543 FSC held as under:- "Confession of a co-accused cannot be used as a substantive piece of evidence to make it basis of conviction of another accused. It can, however, be used as a corroborative piece of evidence.
There should be other substantive piece of evidence available on record against accused before confession of co-accused can be used as corroborative evidence."
VII. Learned counsel for the appellant also pleaded that, in the last resort, keeping in view the age factor of the appellant, who is about 65 years old, his sentence, may be considered as have been already undergone.
10. Learned counsel for the State on the other hand supported the impugned judgment with the following contention: I. That the appellant was arrested on the spot, red-handed.
II. That the Ex.P1 and Ex.P.2 indicated that the case property was produced before the Court in case of accused Ali Khan.
III. That the case property was destroyed under'the orders of the trial Court on 24.2.2009 in respect of which copy of destruction report was exhibited Ex.PW.4/6 and its was a huge quantity of heroin.
IV. Both the reports of FSL are positive.
V. There is no enmity of the prosecution witnesses with the appellant.
11. I have heard learned counsel for the appellant and learned State counsel at length. The entire evidence available on record has been carefully and minutely perused and considered including the impugned judgment in the light of the contentions raised by the learned counsel for the parties. It is admitted fact that the conviction of the appellant has been based on the evidence of PW-4 Sirbland Khan, Investigating Officer, and his statement was recorded after 14 years of occurrence, but the defence could not create any doubt in spite of lengthy cross-examination. PW- 4 after receiving spy information he made Nakabandi on the main road leading towards Gulbandi, stopped Dastun/pickup No, DR-751 and on search he recovered 11-1/2 kilograms of heroin contained in different bags from the possession of appellant Ali Khan and his co-accused Zafar.
The co-accused Zafar was convicted in this case vide judgment dated 23.02.2000 and sentenced to 10 years Rigorous Imprisonment and fine of Rs, 20,000/- and also 20 stripes. The accused Zafar completed his sentence but the present appellant remained absconder for about 14 years and was declared proclaimed offender. The case of present appellant is of same nature, and same set of evidence has been produced by the prosecution against present appellant. The witnesses were found credible. All the recovery witnesses had corroborated each other and supported recovery of 11-1/2 kg. of heroin from the accused which on chemical analysis was confirmed to be heroin. Such a huge quantity of heroin could not be falsely planted on the accused: Accused had failed to establish his plea of false implication and to rebut the prosecution version. No enmity against police witness had been proved on record. Delay for sending the sample to Chemical Examiner for chemical examination would be immaterial as two samples were sent in time on 14.07.1996 to the Chemical Examiner, which were tested positive. Additional twelve samples were sent on 15.10.1996, which also were tested positive. Therefore beginning from the first samples, which tested positive, there was no delay. Complainant had no reason for false implication of the accused. Such huge quantity of heroin (eleven and half kilograms) could not be planted against the accused. Offence of possession of this huge quantity of heroin was proved against the accused. It has also been argued on behalf of appellant that the provision of Section 103 Cr.P.C. was not complied with by Police, neither any private person was taken to be witness of the recovery, nor any other independent person was associated at the time of recovery of heroin from the possession of appellant. This objection has no substance, as it is well settled principle now that the provision of Section 103 Cr.P.,C. would be attracted only when a definite and positive place in a locality is required to be searched. Obviously a moving vehicle or person travelling therein do not fall within the definition of a fixed place. In this connection reliance as been placed on Tank Steel and Re- Rolling Mills (Pvt.) Ltd. Vs. Federation of Pakistan PLD 1996 SC,
69. The huge quantity of contraband has been recovered from the personal possession of the appellant and the report of Chemical Examiner is positive and the same did not suffer from any infirmity. Therefore, provision of Section 103 of the Code of Criminal Procedure was not strictly attracted and Police officers were competent witnesses of recovery who clearly deposed and corroborated regarding recovery of heroin from the possession of the appellant, as such plea of violation of Section 103 Cr.P.C. is not sustainable.
Evidence of Police official in the circumstances and incriminating evidence, further corroborated cannot be brushed aside merely on the ground that they belong to Police force. Statements of these witnesses, in spite of cross-examination, were consistent. It is also contended by learned counsel for the appellant that confessional statement of co-accused cannot be used against present appellant, as the present appellant was not tried alongwith the co-accused who made the confessional statement. It is very clear from the record that the confession was truly made by the co-accused, voluntarily. The present appellant remained absconder/proclaimed offender for more than 14 years, so that the co-accused was tried earlier. Mere fact that this confession was made by a person who was tried in same crime report, when the appellant was absconding for a long period of about 14 years, would not be sufficient to reject the same on this ground.
12.The contention of the learned counsel for the appellant that there are contradictions in the statements of prosecution witnesses is not based on factual analysis, as no specific material contradiction could be pointed out. On the contrary the witnesses have remained very consistent about the facts of the very same accused, caught and arrested red handed, with the stated quantity of heroin, with very vivid description of all related circumstances and details.
13.The contention of the learned counsel for the appellant about the destruction of the case property, and two FSL reports, both being positive, have been convincingly rebutted, by the learned counsel for State, based on facts, and the Court orders in this respect, as discussed above.
14.So for reliance on Muhammad Hashim Vs. The State PLJ 2004 SC 883, is concerned, it may be pointed out that the same is not congruent to the present case in appeal. In the precedent case it was observed that 'Nothing is available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of charas or some other commodity, having resemblance with the colour of charas like Oil Cake (Khal) etc", whereas in the present case it is very much clear on record that samples were taken from all the bags, and there was no confusion or any contrary contention to the nature, and quantity of the commodity.
15.The record shows that the driver of vehicle was not considered necessary for examination as per statement of learned Public Prosecutor for State. Furthermore, learned counsel for the State rightly pointed out that the appellant never cited the driver on his side.
16.Learned counsel for the appellant contended that procurement of private witness was necessary for preparing recovery memo as the recovery was effected from the accused in a public place, i,e,, a road side by putting a barricade. In this regard, the very term `public place' itself needs examination.
17.Generally speaking by the term 'Public place' is understood an open place with free access, where people go, no matter whether they have a right to go or not, without any hindrance or-- interference. Specifically speaking 'Public place' is one to which public must have right of access, although mere fact that public have access is not enough. (Also See K.J. Aiyar's Judicial Dictionary)
But in legal parlance, it has different implications, depending upon its locus, public purpose. etc.
18. Public Place' (Latin: locus publicus) may be a location that local, state, or national government maintains for public use. (Black's Law Dictionary) Under Roman Law, it was a parcel of public land, a property of Ronian people, protected by interdicts against violation by private individuals. (Adolf Berger, Encyclopedic Dictionary of Roman Law 568 (1953). 'Public Place' is a place to which people resort, though without individual legal title.
19.Once free access is denied, as in this case, barricade was put up, hindrance was created, people lost free access, and particularly in the event of police action or operation, no one would like to linger on or loiter around, except passing through without even a moment more than necessary.
In such a situation, it loses basic ingredients and qualities of being a public place, and it would not remain open in the sense of a public place, even temporarily, where private individuals would be freely available to come forward and be natural witnesses against all dangers of possible police encounter and all odds of potential litigation.
20.Therefore case of Nawab Ali Vs. The State NLR 1995 SD 374, cited by the learned counsel for appellant, does not coincide with the circumstances of the present case under discussion.
21.In such a situation, procurement of private individual witnesses would not be safely expected, without running a risk of stock witnesses for which Police otherwise is blamed to rear them.
22.Furthermore, neither the raid was organized, nor the net was thrown on a private place, so .that non-compliance of Section 103 Cr.P.C. could be strictly questioned.
23.Learned counsel contended that trial Court has taken into consideration the confessional statement of co-accused while convicting the present appellant, citing case of Ahmad Sher and another Vs. The State NLR 1995 SD 543. It would be seen on careful analysis that the learned trial Court has taken into consideration all other relevant factors laid down by the Federal Shariat Court.
In this case, i,e, confession of the co-accused has not been used as substantive piece of evidence to make it basis of conviction of the appellant. It is, however, definitely a corroborative piece of evidence. There is other substantive piece of evidence available on record against the appellant and the confessional statement of the co-accused has rightly been used as corroborative evidence.
24. Learned counsel for the appellant also pleaded that, in the last resort, keeping in view the age factor of the appellant, his sentence may be reduced. Here, it may be pointed out that old age, if treated as a mitigating factor, has different considerations based on different circumstances e.g; in bail matters and cases of convictions. In this case the appellant committed the offence on 06- 07-1996 and remained absconder for about 14 years. The quantity of heroin found with him was 5- 1/2 kilograms and 6 kilograms of heroin with his co-accused, which is sufficient to affect thousands of members of families of potential victims of its dangerous use. Thus no leniency is warranted.
25.In view of above discussion I am of the view that the judgment dated 25-10-2010 delivered by learned Additional Sessions Judge/Izafi Zila Qazi, Buneer at Daggar in case No, 1/2, does not suffer any infirmity or error meriting any interference by this Court.. Same is accordingly maintained and the appeal is dismissed accordingly. Benefit of Section 382-B Cr.P.C. shall however, remain intact.
These are the reasons of my short dated 28-03-2011.