' IBADAT YAR KHAN, J.-- This appellant was tried for offences under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, by Mr. Ali Aqdus Shahzad, M.S. 30 and has been convicted on both counts to suffer R.I. For two years, five stripes and fine of Rs,1,000 under Article 3 of the said order and for a term of four years' R.I. Five stripes and fine of Rs,1,000 under the latter Article. In default of payment of fine to undergo further two months' S.1. On each count. Both terms of imprisonment were ordered to run concurrently and the appellant was also given benefit of section 382-B, Cr.P.C. He has filed this appeal against his conviction and sentence.
2. The prosecution allegation was that at 8-00 p.m. On 10-3-1987 S.I. Qamar Zaman was busy in conducting an enquiry against another accused Muhammad Saleem Butt in F.I.R. No,70. During investigation of the case accused Saleem Butt passed on an information that appellant Muhammad Iqbal is a narcotics dealer and has been selling heroin to Muhammad Saleem Butt. It was further revealed by this accused that the appellant usually sells narcotics at Chowk Boharwala and would be found selling heroin even at that time. On this information S.I. Qamar Zaman formed a raiding party consisting of himself, P.W.2 Zubair Ahmad Excise Inspector and P.W.3 Muhammad Rafique, Excise Constable. Before proceeding to the scene of offence Qamar Zairian S.I. Handed over three currency notes of Rs,10 each to P.W.3 Muhammad Rafiquc, Excise Constable, who was to act as fake customer and obtain heroin from the appellant by offering the signed currency notes.
The raiding party thereafter reached Boharwala Chowk where appellant Muhammad Iqbal was present. As arranged, P.W. Muhammad Rafique approached the appellant while the remaining members of the raiding party stood-by at a distance. It is alleged that after preliminary talks the appellant passed on a packet of heroin after accepting the 3 marked currency notes of Rs,10 each (Exh.P.3/1-1). As soon as the transaction was completed the remaining members of the raiding party advanced and the appellant was apprehended. As a result of body search of the appellant 250 grams of heroin wrapped in brown paper was recovered from the right hand side pocket of his shirt. A sum of Rs,60 was also recovered from him. It included the marked currency notes as well.
One gram of heroin was separated from the hulk for the purposes of chemical examination. The bulk and the specimen were separately packed, scaled and recovery memo. (Exh.P.C.) was prepared. It was signed by P.W. Zubair Ahmad. The appellant was arrested and the complaint (Exh.P.D.) was drafted by S.I. Qamar Zaman. The complaint and the sealed two packets were sent to the police station through constable Amanat Ali. On the basis of this complaint P.W.1 Asghar Ali, H.C.P.S. Muzang, Lahore recorded F.I.R. (Exh.P.D/1) on 10-3-1987 at 9- 30 p.m. He also received the sealed packets of heroin and on 13-3-1987 sent them to the office of the Chemical Examiner through Constable Sakhawat Ali. The report of the Chemical Examiner has been tendered in evidence in the case as Exh.P.E. And the contents of the packet have been declared to be heroin.
3. The appellant was examined by the learned Magistrate under section 342, Cr.P.C. He refused to offer any evidence in defence. He also did not make any statement under section 340(2), Cr.P.C.
4. In his statement under section 342, Cr.P.C., he has denied the allegations of recovery of heroin from his possession or any sale to P.W.3 Rafique. In reply to a question by the Court why this case was brought against him, he stated as follows:-{{URDU TEXT}}
5. We have heard the arguments of the learned counsel for the appellant. The learned counsel has half-heartedly argued that Sakhawat Ali, Constable No,4151 who had carried the sealed parcels from P.W.1 Asghar Ali to the Chemical Examiner has not been examined. Thus, an important link is missing in the case. P.W.1 Asghar has deposed in Court that so long as the scaled packets remained with him they were preserved intact till they were delivered to constable Sakhawat Ali.
These packets were delivered to the Chemical Examiner whose report has been tendered by Malik Iftikhar, A.D.A. This report carries a certificate to the following effect:- "Two sealed Potlies described above, sealed with one seal each of Z.A. Intact, said to contain heroin.
Opinion. Both the above packets contain heroin."
6. In our view while it is highly desirable that prosecution should take care to prove through direct evidence that at every stage of their journey the sample packets were in reliable hands the rule of continuity may in some cases be relaxed if we are satisfied that the samples have reached their destination without any mischief or interference. In the present case we feel that the objection has been raised for the sake of objection and if the learned counsel had shown that any prejudice is caused we would have sent the sample again for retest.
7. In view of the recovery of 250 grams of heroin in the presence of P.W.2 Zubair Ahmad, P.W.3 Muhammad Rafique and P.W.4 S.I. Qamar Zaman, we have no hesitation to hold that the appellant is guilty of offence falling under Article 4 of the said Order and the punishment awarded by the learned Magistrate is well-deserved.
8. So far as his conviction under Article 3 is concerned, the conviction is open to question. What transpired between Rafique and the appellant at the time when the heroin was passed on by the appellant to the fake purchaser and the money changed hands remains shrouded. The only evidence of sale is the evidence of fake purchaser because the whet two witnesses were standing far away when the bargaining was goilliz on. Whether such exchange of money with the narcotics can be called voluntary sale within the meaning of Article 3 of the said Order is doubtful and whether this Court should award punishment to an accused where the crime was prompted and accused induced to commit sin is debatable. The concept of inducing a person to commit an offence and then hooking him up for punishment seems to be unconscionable. In Islam the object of awarding punishment should be corrective and not purely punitive.
9. The practice of employing dacoy witnesses for detection and punishment of the crime has never been looked with favour by the Courts in India and in England. In some decisions a dacoy witness has been bracketed with the principal accused in the crime as accomplice. During the Second World War a practice became common that signed currency notes were handed over to the complainant and traps were arranged to arrest the accused red-handed when the signed currency changed hands. This 'ceremony' was usually attended by a Magistrate indisguise. Such detection usually resulted in convictions. But as the practice became too frequent and its evil aspects began to show the Courts in India took serious note of it and the practice came under severe criticism, as stated above some Courts holding dacoy witnesses as accomplices in the crime. True the so-called accomplices were never convicted but the criticism to their role always remained unabated. There are chain of authorities to show how this practice has remained under criticism. It would suffice to mention a few cases which would reveal the conceptual approach to this practice. Bhagwati, J. Who is known for his clarity, had occasion to express himself on this question in a bribery case reported Shiv Bahadur Singh v. State of Vidhya Pradesh AIR 1954 SC 322.
In this case a Minister of Vidhya Pradesh and the Secretary of Industries Department were charged by a Syndicate of Diamond querry (Mining rights) for demanding Rs,25,000 bribe for renewing the lease rights in the querry (Mines right) to the Syndicate. The special police itself provided the signed currency notes to the complainant who then offered the money to the Minister in the Constitution House in New Delhi. A raiding party was arranged and a trap was laid. As the money was being offered to the Minister the raiding party which included a Magistrate trapped the Minister and recovered marked currency notes from his possession. The Minister was convicted by the Judicial Commissioner in an acquittal appeal. The case came to the Supreme Court where, though the conviction was maintained, on other evidence the following observations were made by Bhagwati, J.:-- "We cannot however, leave this case without expressing our strong disapproval of the part which the police authorities and Shanti Lal Ahuja, the Additional District Magistrate took in this affair. As already observed this offence would never have been committed by the appellant No,1 but for the fact that the police authorities provided Nagindas with the wherewithal of the commission of the offence ' The police authorities in this step which they took showed greater enthusiasm than Nagindas himself in the matter of trapping the appellant No,1. It may be that the detection of corruption may sometimes call for the laying of traps, but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the giver where he has neither got it nor has the capacity to find it for himself. It is the duty of the police authorities to prevent crimes being committed. It is no part of their business to provide the instruments of the offence.
' We cannot too strongly disapprove of the step which the police authorities took in this case in the matter of providing the sum of Rs,25,000 to Nagindas who but for the police authorities thus coming to his aid would never have been able to bring the whole affair to its culmination."
10. Another case of some interest is an English case reported in (1947) 2 All England Law Reports page 569. In this case some policemen induced a member of the public for a betting and then prosecuted the man under the Street Betting Act, 1906. Lord Goddard, C.J., made the following observations which are thought-provoking:- "There is another point of much greater public importance. The Court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a Police Officer into a public house to commit an offence. It cannot be too strongly emphasised that, unless an Act of Parliament provides for such a course of conduct -- and 1 do not think any Act of Parliament does so provide -- it is wholly wrong for a Police Officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow, or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distance when it will become a common practice in this country for Police Officers to be told to commit an offence themselves for the purpose of getting evidence against someone; if they do commit offences they ought also to he convicted and punished, for the order of their superior would afford no defence."
11. The responsibility of this Court sitting as a Shariat Court is far greater than the Court of normal jurisdiction. The offences falling under the Hudood Shariat laws carry harsh punishments. Obviously the standard of proof must also be harder. It is highly desirable that we should, as far as possible, try to eliminate any unethical or unworthy practice for procuring evidence against the accused. We can hardly lay hand on a single case in Islamic history where punishment was awarded to the offender on the testimony of Dacoy witness or fake purchaser. On the contrary Islamic jurisprudence has introduced a voluntary concept of {{URDU TEXT}} to ensure a clean trial. A dacoy witness or fake purchaser is a self-condemned liar. How his version can inspire confidence when tested on the touchstone of
12. Secondly prosecuting agency is a medium between State and the offender to secure justice in a case by marshaling all true evidence before the Qazi or the Court. When by using its own men as fake purchaser, the prosecuting agency itself renounces the role of an impartial investigating agency and adopts the role of an interested party pitched against the accused with the set object of securing conviction the whole exercise becomes vitiated and open to question. We, therefore, cannot encourage the practice of a prosecuting agency sending its own man as a fake purchaser and then hooking up the person as a seller of the narcotics.
13. In the circumstances the conviction and sentence under Article 3 of the said Order should not be sustained. 1 he convention and sentence of the appellant under Article 3 of the said Order is, therefore, set aside. The appeal is allowed to this extent. But conviction and sentence awarded under Article 4 of the said Order is, however, maintained and the appeal is dismissed on this count.
He shall get benefit tinder section 382-b Cr.P.C.