' FAKHRUDDIN H. SHAIKH, J.-The appellant has filed this appeal from the judgment of Qazi Habib-ur- Rehman Anjum, Magistrate Section 30, Attock, dated 18-4-1985 whereby the appellant was convicted of offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer R. I. For four years and to pay a fine of Rs, 2,000 or in default of payment of fine to suffer further R. I. For two months.
2: The allegation against him was that on 6-10-1984 he was found in possession of 100 grams of heroin by Mr. Muhammad Aslam Sub-Inspector of Railway Police The case of the prosecution is that on the above date Mr. Muhammad Aslam alongwith his other staff was present at the Railway Station Attock. Abbaseen Express arrived at the station at 8-12 p. m. The appellant was sitting in a second class compartment of the train. Mr. Muhammad Aslam searched the person of the appellant and found 100 grams of heroin concealed in his `Salooke which he was wearing under his shirt. At this time P. W. 2 Noor Muhammad H. C. And P. W. 3 Hafeezullah waiter of the waiting room.
Of Attock Railway Station were present and have claimed to have witnessed the recovery. A Railway ticket was also secured from the person of the appellant. Five grams of heroin was separated as sample and sealed for the purpose of sending it to the Chemical Examiner. The remaining quantity was sealed separately and such memo. Was prepared. Mr. Muhammad Aslam then recorded the complaint and sent it to Railway Police Station for registration of the case.
3. The appellant has simply denied the allegation against him and has also pleaded not guilty to the charge. He was specifically questioned as to why he has been implicated in this case. His reply was that he has been implicated on account of suspicion by the police in order to show their efficiency.
4. In support of the prosecution case there is evidence of P. W. 1 Mr. Muhamad Aslam S. H.
0., Railway Police Attock, P. W. 2 Noor Khan H. C. And P. W. 3 Hafeezullah. All these three witnesses have stated that as soon as Abbaseen Express stopped at Attock Railway Station they found the appellant sitting in a second class compartment. They have further slated that his person was searched and 100 grams of heroin was secured. They have proved the recovery memo. Which has been tendered in evidence as Exh. P. A. And bears signatures of Mr. Muhammad Aslam A. S. I..
Hafezullah, Waiter and Noor Khan, H. C.
5. Other two witnesses namely P. W. 4 Ghulam Rasool and P. W. 5 Muhammad Ibrahim are formal as their evidence is regarding registration of the case and preservation and delivery of the sample of heroin to the Chemical Examiner, whose report has been tendered in evidence as Exh. P. E.
According to this report the packet containing the sample was a heroin. Raja Muhammad Bashir learned counsel for the appellant has argued that there is no independent witness of the recovery of the incriminating substance from the accused. According t him Mr. Muhammad Aslam and Noor Khan are police officers while Hafeezultah, being a waiter of the waiting room, is under their influence. There is ao substance in this argument. P. W. Hafeezullab is a natural witness. In cross- examination he has asserted that he has not appeared as a witness in any other case, which proves that he is not among the stock witnesses of the police. Thus, he was a natural witness who was present at the railway station in the normal course of his duty. He is an independent witness of the locality who had no motive to implicate the appellant in a false case. Noor Khan, H. C. Is no doubt a police officer, but this fact would not be sufficient to discard his evidence. Neither Muhammad Aslam nor Noor Khan had any enmity or motive against the appellant to involve him in a false case.
6. Mr. Muhammad Bashir learned counsel for the appellant has referred to certain minor contradictions in the evidence of the P. Ws. They relate to the actual seat which the appellant was occupying in the second class compartment at the relevant time. These contradictions are immaterial, because the witnesses were not supposed to remember the miror details of the incident. The main fact was, recovery of incriminatin articles from the possession of the appellant and on this point all the three witnesses are unanimous.
7. It has also been argued on behalf of the appellant that provisions of section 103, Cr. P. C. Have not been complied with by the police. According to him search of the appellant which was effected inside a second class compartment of the train, should have been witnessed by two respectable persons of the locality. This objection also has no substance because Noor Khan and Hafeezullah are both witnesses of the locality and there is nothing-on the record to suggest that they were not respectable or independent. Moreover, section 103, Cr. P. C. Does not apply to this case, because only person of the accused was searched and not the place where he was searched. It is immaterial whether the search of a person is effected inside the house or outside. If it is only personal search, the provisions of section 103, Cr. P. C. Would not apply. Hence notwith starding the fact that the person of the appellant was searched inside a railway compartment (which falls within the definition of a place) section 103, Cr. P C. Shall not apply, because the compartment itself was not searched by the police. The language of section 103; Cr. P. C. Is quite clear and unambiguous on this point. The relevant subsection is reproduced hereunder :- "Section 103.-0) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."
' From the above it would follow that the presence of two respectable persons of the locality shall be necessary only when a place is sought to be, searched. If the place is not searched but only person who is inside a place, is searched the above provisions shall not apply and presence of E respectable inhabitants of the locality shall not be necessary. We are fortified in this view by a decision of the Shariat Appellate Bench of the Supreme Court in the case of Shah and others v. The State (1).
8. The next objection raised by Mr, Bashir is that the report of the Chemical-Examiner is incomplete and does not contain the reasons for F which the Examiner has determined the nature of the substance sent to him. It has also been pointed out that the report does not comply with the instructions contained in the Punjab Excise Manual. So far as the Manual is concerned, it contains only departmental instructions, which do not have the force of statutory rules. Nowhere in the Manual it ha been mentioned that the instructions have been issued in pursuance of any'G statutory powers vested on the authority responsible for compiling the Manual. We are, therefore, of the view that the instructions contained in the Manual do not apply to cases relating to Hudood.
9. The appellant was given full opportunity to produce defence. He neither examined himself as' his witness nor even called the Chemical Examiner for cross-examination which he was at liberty to do under section 510, Cr. P. C. No objection was raised before the trial Court about any defect in the Chemiclal report nor any request was made to the Court H to summon the Chemical Examiner for cross-examination in respect o the report given by him. We, therefore, do not think that the report o the Chemical Examiner should be discarded for the simple reason that it was not supported by reasons. We suppose that record of the examination is maintained by the Chemical Examiner in his office, from which it could be ascertained as to how the Chemical Examiner had arrived at the conclusion about the nature of the substance being heroin. The trial Court was satisfied with the report of the Examiner, therefore, it did not think it is necessary to call the Examiner alongwith the office record for further examination in respect of the report under section 510, Cr. P. C.
10. For the above reasons we hold that the charge of offence under; Article 4 of the said Order has been brought home to the appellant beyond any reasonable doubt. 'We, therefore, uphold the conviction. So far as the sentence is concerned, we are inclined to take lenient view because the appellant is a boy aged 23 years and the quantity of heroin was also very small. Hence we reduce the sentence from four years to two years' R. I., but the sentences of fine and whipping are maintained.
11. The above are the reasons for the short order announced earlier.
(1) PLD 1984 SC 278 {{URDU TEXT}}
(a) Offence of Zinn (Enforcement of }Wood) Ordinance (VII of 1979)- S. 16- {{URDU TEXT}}
(b) Offenee of Zba (Enforcement of Iludood) Ordinance (VII of 1979)0 -Ss. 16 & 19(2) {{URDU TEXT}}
(c) Offence of Zina (Enforcement of *Wood) Ordinance (VII of 1979)- ---S. 10-Criminal Procedure Code (V of 1898), S. 164- {{URDU TEXT}} {{URDU TEXT}} 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.