1. The appellant has challenged the judgment dated 30-8-1990, passed by VIth Additional Sessions Judge, Karachi East, in Sessions Case No.404 of 1990, whereby he has convicted the appellant for a charge under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and awarded minimum sentence of two years' R.I., whipping of five stripes and fine of Rs.1,000 and in default of payment of fine, the appellant to undergo further R.I. For one month. He has also been given benefit of section 382-B, Cr.P.C. The prosecution case is that on the first day of May, 1990, A.S.I. Asghar Beg of Interrogation Cell while posted as an Officer of Bin Qasim Sub-Division, Karachi East, was on patrolling duty, he arrested the appellant on receipt of spy information that he was in possession of heroin and was near Railway Crossing for the purpose of selling the said stuff. The said A.S.I.
2. Alongwith the subordinate staff and two persons of public searched the person of the appellant.
3. From the pocket of his shirt, a small packet of cellophine containing about 65 grams of heroin powder was secured and sealed and the appellant was arrested. Necessary memo. Of recovery and arrest was also prepared. The F.I.R. Was lodged at Police Station Quaidabad. The heroin was however, weighed at the shop at some distance from the railway crossing. The prosecution examined P.W.1, Muhammad Hanif, who acted as Mashir of recovery and arrest of the appellant and P.W.2, Asghar Beg, the Assistant Sub-Inspector of Police. The prosecution produced in evidence the report of the Chemical Examiner to establish that the packet recovered from the appellant contained heroin.
4. The learned counsel for the appellant has contended that P.W.1 who has acted as the complainant; also took up the responsibility of investigation in his own hand, and therefore, the entire prosecution case is vitiated. In this respect, he has relied on the case of Ashiq alias Kaloo v. The State reported in 1989 P Cr. L J 601 wherein the then Acting Chief Justice of Federal Shariat Court had observed that the complainant by himself acted as the Investigating Officer and his investigation was biased. The facts of the case show that the heroin recovered from the appellant in that case was not shown to the witness at the trial, nor the said property was exhibited in Court. It was also noted by the learned Judge that although the witness had stated that the property recovered was weighed on the spot but the scale was brought by some policeman from the shop and the other witness had deposed that the heroin was weighed at the nearby shop. It was in view of the above specific case that the learned Judge reached the conclusion that investigation was biased. Therefore, the aforesaid observations made by the learned Judge would be applicable only to the facts of the reported case and cannot be pressed into service for this case.
5. It was next contended by the learned counsel that P.W.2, was not the Prohibition Officer and he was not authorised to investigate the case under the Prohibition (Enforcement of Hadd) Order, 1979, and, therefore, he ought to have produced the appellant alongwith the property seized, before the Prohibition Officer as required under Article 13 of the said Order 4 of 1979. The submission has no substance. Article 27(1) read with Article 16(2)(b) and section 5(2), Cr.P.C. Provide complete answer to the said contention. It may also be pointed out that the offences prescribed by Hudood Laws have been also incorporated in the Second Schedule of the Code of Criminal Procedure, 1898, by Code of Criminal Procedure (Amendment) Ordinance (X of 1979). Under the aforesaid provisions, the Police Officers have authority to investigate the offences punishable under the said Order.
6. It is contended that P.W.2 arrested the appellant, conducted the search, effected the recovery, prepared the memos and recorded the statements of witnesses under section 161, Cr.P.C. Before lodging of the F.I.R. The submission is that the commencement of the investigation before recording of the F.I.R. Is not warranted under the law and consequently, the prosecution on the basis of such investigation is illegal and liable to be thrown overboard. Such argument was raised before the learned trial Court Judge as well but was repelled. A similar issue came up for consideration in the case of Muhammad Anwar v. The State 1968 P Cr. L J 1597, wherein a Division Bench of Lahore High Court after considering the case-law observed that it is well-settled that the receipt and recording of the first information report is not a condition precedent to the setting in motion of a criminal investigation and being possessed by such knowledge through informal intelligence, the police can undertake the investigation on its own motion without drawing a formal first information report. For the above view reliance was placed on the cases of Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18 and Bashir Saigol v. The State PLD 1964 Lah.
148. The same view was expressed by a Division Bench of this Court in the case of Faiz Muhammad v. The State PLD 1979 Kar. 513 and unreported judgment in Civil Petition No.D-388 of 1989, Alpha Insurance Co. Ltd. v.
7. Assistant Director. F.I.A.
8. The learned counsel then assailed the impugned judgment on the ground that the witnesses of recovery of the offending material do not belong to the locality where the search was effected and P.W.1 is admittedly, the resident of a place situated at a distance of about 6 or 7 kilometres from the place of recovery. It may be stated that the respectability of the said Mashir has not been assailed in any manner whatsoever. While interpreting the provision of section 103 of Cr.P.C., a Division Bench of this Court in the case of Yamin Kumhar v. The State PLD 1990 Kar. 275 after considering the host of the case-law observed that the residence of Mashirs became relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made .On public thoroughfare, a bus stand or similar public places, the witnesses picked up by the police from the road, can be proper witnesses of recovery depending upon the facts and circumstances of the case. In view of the above observations, the contention is overruled.
9. The learned Advocate for the appellant has then pointed out that the F.I.R. Does not mention the fact that the heroin was weighed at the shop and this place where the weighment was done was disclosed by P.W.1 only at the time of his deposition in Court. In my view, this omission is not such as would create any doubt about the credibility of the witness.
10. The learned counsel then submitted that P.W.2 in his deposition in Court stated that he and other members of the patrolling party were on foot whereas P.W.1 had stated that they were in a pick-up.
11. It has been noted that in the examination-in-chief of P.W.2, the words `on foots' are mentioned. In cross---examination, P.W.2 stated that he had not made statement in examination-in---chief that they were on foot. The possibility cannot be ruled out that the aforesaid two words came on the record due to mistake of the typist who was being dictated the deposition of the witness. Such a view is confirmed from the fact that the word `foots' has been typed instead of `feet' and I am not prepared to assume that the learned Additional Sessions Judge did not know the correct plural of the noun `foot'.
12. Lastly, it was contended that the heroin recovered from the possession of the Appellant had remained in custody of P.C. Murad. It is so contended on the basis that P.W.2 had stated that he had sent the material recovered from the appellant to the Chemical Examiner through the aforesaid police constable on 15-5-1990 and according to the report received from the Chemical Examiner the aforesaid parcel was received in his Office on 24-5-1990. The contention is misconceived. P.W.2 has stated that he had sent the parcel to the Chemical Examiner on 15-5-1990 but he had refused to receive the same for the reason that it was forwarded without appropriate sanction and, therefore, it was resubmitted to the Chemical Examiner on 24-5-1990. Therefore, no such assumption as contended by the learned counsel can be drawn.
13. The learned trial Court Judge while awarding the punishment to the appellant has considered all the aspects of the case including his old age and, therefore, treated him with leniency inasmuch as the minimum punishment permissible under law was awarded. The appeal is, therefore, dismissed.