' MUFTAKHIRUDDIN, J.-- This is an appeal from the judgment, dated 17-10-1988 passed by Mr. Abdul Hameed Abro, learned Additional Sessions Judge (Central) Karachi whereby the appellant Mohammad son of Usman (confined in the Central Prison Karachi) was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer rigorous imprisonment for fourteen years and pay a fine of Rs,2,00,000 (Rupees two lacs only) or in default of payment of fine to further undergo R.I. For four years. The allegations against the appellant are that on 10-1- 1985 from his house situated in Federal 'B' Area a tin containing 10 bags of heroin was recovered.
2. Mumtaz Bahadur Khan son of Fatch Bahadur Khan Assistant Excise and Taxation Officer, Provincial Intelligence Bureau, Excise and Taxation Sind lodged an F.I.R. On 10-1-1985 at 4-00 p.m.
Police Station Excise Karachi and stated therein that on 10-1-1985 acting upon spy information he alongwith officials (named therein) and two witnesses namely Sohail Hamidi son of Zafar Hamidi and Muhammad Anwar son of Abdul Ghani reached the House No,B-428, Block No,13, Federal 'B'
Area, Karachi, knocked the door whereupon one Muhammad son of Usman (accused) opened the door. After observing legal formalities he along with officers staff and witnesses entered the house of Muhammad son of Osman was apprised of the facts and thereupon on his pagination recovered a tin box from the bedroom which on opening was found to contain ten white cloth and polythene packets, each containing one bag of heroin powder. Muhammad was arrested, his personal search was conducted and nothing was recovered from his possession. The house was searched but nothing further was recovered from there. The heroin recovered was seized and sealed in the same box on the spot. Mashirnama was prepared on the spot and explained to Mashirs who affixed their signature. Accused Muhammad son of Osman was brought to Excise Police Station alongwith the case property and case was registered. The case wa!, investigated by him and having obtained a certificate Exh.P.4 from the Chemical Examiner the accused was sent up to face the trial.
3. On the denial of the charge framed under Article 4 of the said order the prosecution examined only two witnesses and the report of the Chemical Examiner was tendered in evidence. The witnesses produced are P.W.1 (Mumtaz Bahadur Khan-the complainant) and P.W.2 (Muhammad Anwar a rickshaw Driver).
' The accused in his statement recorded under section 342, Cr.P.C. Denied the recovery and stated his case in answer to question No,7 in these words:- "I am owner of biscuit factory situated at Chakiwara No,2. I know P.W. Mumtaz Bahadur Khan since 5-6 years. He had money with himself and desired to invest the money with me on profit basis. He gave me Rs,60,000 in the month of January, 1984. I used to pay him profit of the money. In the month of December, 1984, my money was got stuck up hence. I could not pay profit to P.W. Mumtaz Bahadur Khan. He started demanding and pressing hard. He required me to double the amount of profit and threatened me in false case in case I failed to pay him. On 10-1-1985 when I was sitting in my factory P.W. Mumtaz Bahadur came there alongwith my son Aslam and told me that a tin box was recovered from my house. He required me to accompany him to Excise Police Office. There he detained me and concocted this false case against me."
' The accused reiterated his plea in his statement on oath and produced Muhammad Aslam who deposed that Mumtaz Bahadur Khan was known to him. He had come to the house in the absence of the accused. Mumtaz Bahadur Khan alongwith other persons had come to the house on 10-1- 1985 and sat in the Drawing Room. One person had a box of tin in his hand. They enquired about the accused and when they were informed that he was not there, the party boarded the pick up and took away the box. Later he came to know that the accused was involved in Hudood case on the basis of a tin box. This witness was corroborated by D.W.3 (Mian Khan).
4. The trial Court believed the prosecution version and found the accused guilty and sentenced him as mentioned above. Mr. Azizullah Shaikh, Advocate, the learned counsel for the accused/appellant has assailed the order of conviction and submitted that:-
(a) Offence under Article 4 of the said Order is not cognizable and there was no compliance of sections 157 and 159, Cr.P.C. The trial is thus vitiated.
(b) The house wherefrom the alleged recovery was made was not in exclusive possession of the appellant and it was in fact in the possession of his sons.
(c) The P.Ws. Have contradicted on material particulars.
(d) No respectable Mashir was associated with the search. The one produced (P.W.2 Muhammad Anwar) is a convict according to his own admission, and has been plying the Rickshaw without licence. Naturally he could be easily available to the police.
(e) The parcel was sent to the Chemical Examiner after six days. The safe custody and its transport is not established.
(f) No sample was drawn on the day the alleged recovery was made.
5. It is now too late in the day to contend that a valid investigation is the ' 'foundation of the validity of proceedings in a Court against the accused person. The preponderance of authority has veered round to the view that even a police report in a non-cognizable offence, which the police had not been duly ordered by a Magistrate to investigate, would be included in the word 'report'. In the alternative, there is no reason even if such a report is not regarded as a police report, not to accept it as a complaint within the meaning of clause (a) of subsection (i) of section 190 of Code of Criminal Procedure.
' We are, therefore, of the view that even if investigation had not been in confirmity with the legal provisions, it does not necessarily follow that the subsequent trial would be vitiated. The trial Court will have to decide the case on the basis of the evidence led before it and the mere fact that the agency which collected such evidence was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trying Court. The error in the proceeding antecedent to the trial is cured under section 537, Cr.P.C. Reference may be made to the following reported judgments:- The Crown v. Nur Alam PLD 1955 Lah. 667, Salahuddin v. The Crown PLD 1956 Lah. 87, Abdul Noor alias Noor Mcah v. The State PLD 1958 Dacca 145, The Crown v. Mehar Ali PLD 1956 FC 106, H.N.
Rishbud and another v. The State of Delhi A 1 R 1955 SC 196 and Hizbullah v. The State and another PLD 1984 Quetta 1.
The conviction is, however, not sustainable on account of the fact that' the recovery of narcotics as alleged is not free from doubt and the prosecution witnesses contradicted each other and their depositions run counter to the documents on record. The statements of the recovery witnesses are mutually destructive. It is stated by Mumtaz Bahadur Khan (P.W.1) that no sample was obtained on 10-1-1985 but the next day the parcel containing the entire recovered narcotic was opened before the same witnesses and sample was taken. This fact is not corroborated by Muhammad Anwar (P.W.2). P.W.2 has further deposed in B cross-examination that there was no spy with the police to indicate the place of recovery, then how the place (house, of the accused) could be located when the accused was not known to Mumtaz Bahadur Khan prior to this case. According to P.W.2, there were three four rooms in the house. There was two lady searchers with the party but the prosecution case is that only one lady searcher had accompanied the raiding party. Mumtaz.
Bahadur Khan (P.W.1) admitted that he had come to know that besides the accused his two three grown up male children used to reside with him. The house was thus not In exclusive possession of the appellant and he cannot be held liable.
6. In view of the above, we entertain doubt about the prosecution case and the defence version appears to be plausible. The appeal is accordingly allowed, the conviction and sentences passed against the appellant are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.