FAKHRUDDIN H. SHAIKH, J.---The petitioner was tried by Resident Magistrate, Wah Cantt for an offence under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 and convicted under Article 3 of the said Order only and sentenced to R.I. For 3 years and to a fine of Rs. 1,000 or in default of payment of fine to undergo further R.I. For 6 months, vide his judgment dated 4-5-1985.
The appellant has challenged the above conviction and sentence by this appeal.
2. The case of the prosecution is that on 10-10-1984 Mr. Abdul Rashid, Excise Inspector alongwith Lady Excise Constable, Mst. Rashida Begum, Malik Muhammad Sharif, Sub-Inspector, Excise Check Post Margalla, were present at Margalla Check Post. Mr. Abdul Rashid had received spy information one day earlier that a person in possession of Charas was likely to pass in a bus coming from Peshawar side. It is alleged that Bus No. R.I.J-8099 arrived at the Check Post. The bus was stopped by Mr. Abdul Rashid and at the pointation of the spy, appellant Mst. Sultan Zari was asked to get down from the bus. Her person was got searched through the lady constable Mst. Rashida Begum and it is alleged that Charas wrapped in wax paper was found from under her garments. It was weighed and found to be 4,200 grams. It was contained in two packets. The Excise Inspector took samples from the two packets and sealed them separately for being sent to the Chemical Examiner. The remaining contents were also sealed separately in two packets. Mr. Abdul Rashid then recorded complaint and sent it to the Police Station for being recorded as F.I.R. After completing the investigation, the case was sent up for trial.
3. In support of the prosecution case, there is evidence of P.W.1 Abdul Rashid, complainant, P.W.2 Toor Abbas Khan, Excise Constable, P.W.8 Rashida Begum, Lady Excise Constable, P.W.4 Muhammad Rafique, Head Constable, P.W.5 Abdul Razzaq, Constable and P.W.6 Malik Muhammad Sharif, Sub-Inspector Police Taxila.
4. P.W.1 Abdul Rashid, is the complainant. He has deposed that on 10-10-1984 at about 7-00 a.m. He was present at Margalla Check Post alongwith his other Excise Staff, that Malik Muhammad Sharif, Sub-Inspector Police Taxila also arrived at that time at about 3-00 p.m. A bus arrived from Peshawar side which was stopped. He further stated that at the pointation of the spy one woman passenger was asked to get down from the bus. She gave her name as Mst. Sultan Zari. The person of the woman was got searched through the Lady Constable, Mst. Rashida Begum who secured two packets containing Charas from the under garments of the woman i.e. Appellant. He has further deposed about the sealing of the packets and the samples and preparing such memo.
5. In cross-examination he admitted that he received spy information one day earlier i.e. On 9-10- 1984. A suggestion was made to the witness by the defence counsel in cross-examination that the bus driver and the cleaner had protested against the conduct of the Excise Inspector. The reply of the Inspector was in the negative. It was also suggested that the Charas was found in small packets lying under the seat of the bus and that nobody claimed that packet. The Inspector replied in the negative even to this suggestion.
6. P.W.2 Toor Abbas Khan, Excise Constable was also present at the Check Post alongwith Mr. Abdul Rashid. He had also claimed to have witnessed recovery of the Charas from the appellant whose person was got searched through Lady Constable Mst. Rashida Begum.
7. P.W.3 Mst. Rashida Begum has also supported the prosecution case and deposed that at the instance of Mr. Abdul Rashid she had searched the person of the appellant and recovered from her under garments two wrapped packets which were found to contain Charas.
8. P.W.4 Muhammad Rafique Head Constable of Police Check Post Taxila has deposed that he had received two sealed parcels from Mr. Muhammad Sharif. Sub-Inspector on 10-10-1984. He had kept these parcels in the Mal Khana and that on 15-10-1984 these parcels were, sent to the Chemical Examiner for examination and report. It may be stated that according to chemical report, the parcels were actually received at the chemical laboratory on 27-10-1984 i.e. After 12 days of the despatch from the Police Station. It is not known as to where these two parcels were kept during the period 15-10-1984 to 27-10-1984.
9. P.W.5 Abdul Razzaq, Constable has deposed that he had received one sealed parcel on 15-10- 1984 to be delivered at the chemical laboratory, Lahore, which he had done. He does not say whether he had delivered the parcel at the chemical laboratory on the same date i.e. 15-10-1984 when he had received it. The presumption is that he must have delivered the parcels to the Chemical Examiner on the same date i.e.15-10-1984. However, the chemical report contradicts this witness, because it is clearly stated in the report Exh.P.E. That the same was received vile letter dated 27-10-1984. Mark Exh.P.E. Has been put on the letter with which the parcels were sent. In fact, this exhibit should have been put upon the report which is an annexure to the forwarding letter i.e. 27-10-1984. Thus, P.W. Muhammad Rafique is contradicted by the letter Exh.P.E. On the point that the parcels were sent to the Chemical Examiner on 15-10-1984. The record does not show as to how the parcels were dealt with for 12 days intervening between 15-10-1984 and 27-10-1984.
10. In her statement under section 342, Cr.P.C., the appellant has denied that any Charas was found from her person. She has said that one packet was lying under a seat in a bus and that she has been arrested simply because she was sitting near the packet which was not claimed by anyone, and that she has been arrested by excise people only to show their performance.
11. She has examined two defers witnesses in her defence namely, D.W.1 Abdul Raoof, Driver of the bus and D.W.2 Masab Khan, Cleaner of the bus. These defence witnesses were driver and cleaner respectively of the same bus in which the appellant was travelling. They have deposed that nothing was secured from the person of the appellant, but one packet which was lying under a seat and was not claimed by anyone, was secured and that the appellant was arrested simply because she was sitting near the seat under which the packet was lying.
12. The contention of Malik Rab Nawaz Noon, learned counsel for the appellant is that the report of the Chemical Examiner Exh.P.E. Should not be taken into consideration because the parcels which were received by the Chemical Examiner on 27-10-1984, were not the same which were despatched from the Police Station on 15-10-1984. There is nothing on the record to show as to where and, how the parcels which were despatched from the Police Station on 15-10-1984 were kept or preserved upto 27-10-1984. The whole record of the trial Court is silent on this aspect of the case. It is, therefore, doubtful if the chemical Report Exh. P.E. Pertains to the same parcels which were despatched from the Police station on 15-10-1984. It is not known who had the custody of these parcels from 15th to 27th of October, 1983. P.W.5 Abdul Razzaq who had received the parcels on 15-10-1984 does not state that he had kept the parcels with himself upto 27-10-1984 on which date he handed over the same to the Chemical Examiner. On the contrary he simply states he had received the parcels on 15-10-1984. Originally, the parcels were received by P.W.4 Muhammad Rafique on 10-10-1984 who had preserved the same with himself upto 15-10-1984 on which date he handed over the same to P.W.5 Abdul Razzaq for being delivered at the chemical laboratory. The letter Exh.P.E. With which the parcels were forwarded to the laboratory is itself dated 27-10-1984. It is nobody's case that the Police had kept the parcels with itself untampered between 15-10-1984 and 27-10-1984. This being the state of evidence, no importance can be attached to the Chemical Examiner's report which is now annexed with the letter Exh.P.E.
13. The next point urged in support of the appeal by the learned counsel is that the learned trial Court has not complied with the provision of section 364(2), Cr.P.C. Whereby a certificate had to be appended to the statement of the accused recorded under section 342, Cr.P.C. Subsection (2) of section 364, Cr.P.C. Reads as under:- Subsection (2):--"When the whole statement is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused."
The above provision is mandatory and the trial Magistrate is supposed to append the certificate as above in his own hand. It has been rightly urged that the absence of the certificate is illegality which is not curable by section 537, Cr.P.C. In support of this plea, learned B counsel has referred to the case of Muhammad Inayat v. The State 1985 P Cr. L J 469 in which a learned Single Judge of the Lahore High Court held that non-compliance with subsection (2) of section 364, Cr.P.C. Is an illegality not curable by section 537, Cr.P.C.
14. It has also been argued that even the statement of the appellant does not appear to have been written by the learned trial Magistrate in his own hand. The statement at page 28 of the record appears to be in a different handwriting from the depositions of the witnesses have been written.
Hence, either the depositions are Pot in the hand of the trying Magistrate or the statement of the appellant is not in his hand, because the two are apparently written in two different hand, This illegality also amounts to violation of section 364, Cr.P.C. And it has been rightly urged that it has vitiated the trial.
15. It has also been urged that vehicle falls under the definition of place and that Excise Inspector was not empowered to search it as provided under section 356(3), Cr.P.C. This argument has no force, because Excise Inspector had not searched the vehicle; on the contrary now he had searched only the person of the appellant after she was dislodged from the bus.
16. It has next been urged that the trial is bad for non-compliance with section 103, Cr.P.C. Because no public man was associated with the trial. According to the learned counsel the Excise Inspector was bound to associate respectable persons of the locality before taking search of the person of the appellant. In support of this plea he has relied on the case of Muhammad Farooq v. The State 1985 P Cr. L J 778. In this case Flying Coach was searched and incriminating articles were recovered from possession of a passenger travelling in that coach. It was held by a Division Bench of this Court in the above case that the search was bad for non-compliance of section 103, Cr.P.C.
Because no person of the locality was associated with the search. The above case is distinguishable because search was taken of the Flying Coach which falls within the definition of a "place". In the present case the bus itself was not searched by the Excise Inspector only a particular passenger was asked to get down from the bus and it was that passenger whose person was searched. Hence, the principle laid down in the case of Muhammad Farooq is not attracted.
17. It was next argued by the learned counsel that the trial is bad for non-compliance of section 340(2), Cr.P.C. As amended by Ordinance XII of 1985 which came into force on 21-2-1985. According to subsection (2) above it is provided that an accused in criminal case who does not plead guilty, shall give evidence on oath in disproof of the charge and allegation against him. In this case, the accused was not asked by the trial Court to give evidence on oath. This argument also has no force, because it was the right of the appellant to ask the Court that she intended to give evidence on oath under the amended section 340(2). The appellant was specifically asked by the trial Court whether she intended to produce any evidence in defence. At that stage she should have asserted her right of giving evidence on oath. She was represented by a counsel, hence, he must be fully aware of her right to give evidence on oath. It was not the duty of the Court to remind the appellant that she had a right to give evidence on oath an her defence. The duty of the Court ended after it asked from the accused whether he intends to give evidence in defence. The Court had fully done its, duty in this case. In reply to the relevant question the appellant simply stated that he wanted to examine evidence in defence. She or her counsel did not state before the Court that the appellant himself intended to give evidence on oath.
18. However, we have already held that the finding of guilty has been based by the trial Court mainly on the chemical report which had been proved to be a doubtful document and further the trial is bad for non-compliance of section 364, Cr.P.C.
We, therefore, allow the appeal, set aside the conviction and sentence and direct that the appellant shall be released forthwith if not required in any other case.