TANZIL-UR-RAHMAN, C.J.--- This criminal appeal arises out of judgment, dated 30-7-1991 passed by the learned Sessions Judge, Karachi (South), whereby he convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order IV of 1979 (hereinafter referred to as `the said order') and sentenced him for life imprisonment with fine of Rs.1,00,000. In default to undergo further R.I. For two years. He was also sentenced to whipping numbering fifteen stripes for the recovery of three kilograms of heroin powder recovered from his possession.
2. The facts, arising out of the above appeal, are that on 2ti-11-1990 at about 9-05 day time.
Inspector Muhammad Ajmal of Central Sub-Division District East, Karachi, with Zulfiqar Ali, Assistant Excise and Taxation Officer alongwith other excise staff and in presence of two private Mashirs Arif Latif son of Abdul Latif and Sultan Ahmad son of Shad Muhammad -reached the place of occurrence and found the appellant in suspicious manner, going with a canvas bag holding on his shoulder. Inspector Zulfiqar Ali stopped him and after introducing himself, asked his name, who disclosed his name as Perwaiz son of Barkat Masih. The Inspector Zulfiqar Ali took the said bag from him and opened it and recovered three bags containing heroin powder of brown colour. There was found one kilogram of heroin powder in each bag; totalling to be three kilograms in all the three bags. Twenty grams of heroin powder was oaken out from each bag for chemical examination which was sealed separately in the spot. The 'remaining heroin was put in the same plastic bag and hereafter put in three white cloth bags and sealed. The three cloth bags were kept in the same canvas bag and sealed in the presence of Mashirs. The appellant was arrested and after completing all the formalities by preparing such Mashirnama of arrest and recovery signed by both the witnesses, Arif Latif and Sultan Ahmad and also signed by Muhammad Ajmal, the Investigating Officer, the case property and the accused was brought to the police station concerned. The challan was then filed against the appellant/convict and he was sent up in the Court for trial for the commission of offence under Articles 3 and 4 of the said Order.
3. The prosecution in all examined two witnesses. P.W.1 Arif Latif, a private person, who acted as Mashir of arrest and recovery and P.W.2 Muhammad Ajmal Tufail, Excise Inspector, Central Sub- Division. District East. Karachi, who also acted as Investigating Officer.
4. P.W.1 Arif Latif, deposed as under:-- "On 26th November, 1990 I was going to attend my duty. I had to start water pump at Sabzi Mandi. I reached there at about 8-30 a.m. I was stopped by Excise Inspector Ajmal and introduced himself to me. He asked me to act as one of the Mashirs. Then we went to lane No-1 Essa Nagri Subzi Mandi Karachi. The police party was also with the Inspector. Excise Inspector Ajmal stopped a person, and secured one bag. The Excise Inspector opened the same. He secured three cloth bags duly sealed from the said bag. When he opened the cloth bags, Excise Inspector found plastic bag lying in the cloth bag which were also scaled. The plastic bags were opened in my presence there was heroin powder of light brown colour in those bags. This powder was weighed and the total weight came to three kilograms, one kilo in each plastic bag. He also used the same weighing scale which he was carrying and prepared samples of 20 grams from each packet. The samples and the seized articles were sealed on the spot and the Mashirnama of recovery was also prepared on the spot by Mr. Ajmal. I produce the Mashirnama of recovery as Exh.6. It is same, correct and bears my signature. The accused was also arrested. The accused present in the Court is same. I sec property in the Court., It is same and produce them as Articles A, B and C and three samples as Articles D, E and F respectively:'
5. The Court opened the case property, which was duly sealed in the open Court in presence of the counsel for the appellant and counsel for the State.
6. In cross-examination to the learned counsel for the appellant the said P.W.1 stated that:-- "My duty hours are from 8-00 a.m. To 3-00 p.m. The Investigation Officer was not known to me previously. I reached at the Pump station on that day at about 9-30 a.m. The place wherefrom the accused was apprehended is situate in a thickly populated area, but I cannot give the number of the house where from in front of the said house the accused was apprehended. The distance between my water pump and the place of the arrest of the accused is not much but I cannot give the actual distance between these two places. At the place of arrest some persons were available in front of their houses. The Excise Inspector searched the accused himself from the right side shoulder of the accused. My 161, Cr.P.C. Statement was written by one A.S.I.P. Personally I am not conversant with the ingredients of the heroin powder but I have seen people taking heroin at Sabzi Mandi near my office, therefore, I can confidently say that the item seized by the Excise Inspector was heroin powder. The co-Mashir was also picked up by the Excise police in my presence. The weighing scale was already available with the 1.0. And it was not borrowed from any one on the spot. The weights were made of iron metal. The seized packets were not sealed by the Excise Staff in my presence. Again says only the samples of 20 grams were sealed in my presence, and I had signed on those samples. I was examined only one by the police which was recorded in the office of the Excise Inspector. I took about 40 minutes to complete the formalities of seizure, arrest and preparation of samples. Since I had to go on duty, therefore, I took leave and the Excise Staff gave n 1e the address where I was supposed to go and see them."
6. The witness denied the suggestion made to him. By the learned counsel for the appellant that no recovery was made from the appellant or that he had deposed falsely at the instance of the Investigating Officer.
7. P.W.2 Muhammad Ajmal Tufail, Excise Inspector, District East. Central Sub-Division, Karachi, stated more or less the same thing as already) stated byP.W.1. He has, in fact, corroborated each and- every detail about the presence of the appellant with the bag on his shoulder containing three plastic I bags inside weighing one kilogram each, totalling three kilograms in all. Taking; out twenty grams from each bag and sealing the same in white paper bag (envelope) in presence of the Mashirs with signatures thereon and sealing the. Remaining heroin powder, in presence of Mashirs.
He produced such Mashirnama Exh.6 and testified the same to be correct, which bear his signature as well as the signatures of both the Mashirs. He bought the case-- property and the appellant to the Excise Police Station District East, got the F.I.R. Recorded (Exh.8), producing the same as correct bearing his signatures. The report of the chemicai examiner (Exh.9) was also produced by him, Subsequently as per direction of the Court the entire case property was sent to the chemical examiner. He produced such report Exh.10. He recorded the statements of the witnesses under section 161, Cr.P.C. He identified the case-property available in the Court as Articles A to F (three of samples and three of remaining quantities of heroin). He submitted the challan in the Court. On that day the learned counsel for the appellant moved an application for adjournment, which was rejected by the learned trial Judge. Opportunity was, however, given to the appellant/accused to cross-examine the witness. He was prepared to avail the same and thus cross-examined P.W.2, which reads as under:-- "I -apprehended the .Accused at 8-30 or 8-35 a.m. It is ~ incorrect to suggest that the accused has been falsely implicated in this case or that he is innocent. It is incorrect to suggest that 10-12 persons were apprehended and since I refused to bribe the Excise Staff, therefore, I was involved in this case."
8. - The statement of the accused under section 342, Cr.P.C., was recorded, but it contained nothing except simple denial and pleading of mere innocence. He, however, examined himself on oath under section 340(2), Cr.P.C., wherein he, stated, inter alia, that he was employed in Water Board and he was not involved in any case. When he was arrested by the police he had gone to attend feast at the residence of his Aunti. The police had already taken into custody 12 other persons including himself and all were taken to police station. The police later on informed him that he was involved in a narcotic case. Nothing, was recovered from his possession. In cross-examination, he denied the suggestion of the recovery of three kilograms of heroin from his possession in the- presence of Mashirs, Arif Latif and Sultan Ahmad.
9. We have heard the learned counsel for the appellant and Mr. Abdul Ghafoor Mangi, learned Additional Advocate-General, Sindh, for the State.
10. Syed Nasiruddin, learned counsel for the appellant submits, in the first instance, that the provisions of Article 4 of the said Order are ultra vies to the principles of Islamic Injunctions, so for as it applies to Christians. Elborating the submission, the learned counsel for the appellant submits that there is a Qur'anic Verse. There is no compulsion in the matter of religion and, therefore, the appellant, who happens to be a Christian, cannot be forced by operation of law as provided under Article 4 of the said Order to abide by that law. The contention, to say the least, is fallacious, inasmuch as the provision does not come in the domain of the personal law of Christians. The learned counsel for the appellant on our enquiry was unable to name a single country in the world where a Christian is allowed to carry heroin in his pocket for the purpose of sale or use. The contention is devoid of any merit. It may, however, be pointed out that the legislature was itself conscious of the fact white making an exception to the said provision of Article 4 of the said Order that;-- "Provided that nothing contained in this Article shall apply to a non---Muslim foreigner or to a non- Muslim citizen of Pakistan who keeps in his custody at or about the time of a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a 12art of such ceremony It has not been the case of the appellant that the heroin recovered, was for the purpose of his use as a part of his religious ceremony. In any case, the provisions of Article 4 of the said Order have been considered by a Full Bench C of this Court on the Shariah side and have been held not repugnant to the Injunctions of Islam.
11. Learned counsel for the appellant next contended that P.W.1 Arif Latif is a resident of Golimar and his presence at the place of occurrence is not believable. Perhaps the learned counsel forgot that P.W.1 was an employee of Water Board whose office is situated near the place of occurrence.
12. The learned counsel lastly submitted about reduction of sentence, but we find no mitigating circumstance to reduce the sentence, nor he alleges any.
13. In result, the guilt of the appellant is proved to the hilt and the appeal is dismissed.
N.H.Q./709/FSC