Safeer Hussain Qureshi, appellant, was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to undergo rigorous imprisonment for 3 years, 10 stripes and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 6 months. The appeal in hand challenges the said conviction and sentence.
2. Khalid Rashid, Inspector, F.I.O. Narcotics Staff, received information on 18-10-1987 that the appellant was supplier of heroin and on the said date he had to come to the Office of Tehsildar, Rawalpindi to supply, heroin to customers. The said Inspector arranged a raiding party. At about 11- 40 hours the appellant arrived at the spot in a taxi. He was overpowered by the complainant and search was carried out of his person and from a pocket in the vest under his shirt a packet of heroin was recovered which weighed 30 grams. The complainant separated 10 grams out of the said heroin for chemical analysis. The appellant was apprehended and complaint was sent to Police Station Ganjmandi, Rawalpindi where F.I.R. No.342 was recorded. After investigation, the appellant wits sent up for trial before the Additional Sessions Judge, Rawalpindi where he was charged under Article 4 of the Order. The appellant pleaded not guilty to the charge and claimed trial.
3. The State produced 5 witnesses in proof of the prosecution case. P.W.4 Shaukat Hussain, A.S.I.
Narcotics Staff, was a member of the raiding party which was arranged by complainant, Inspector Khalid Rashid. This witness has deposed that the appellant had reached the compound of Tehsil office in a taxi at 11-40 hours. He got down from the taxi and he was identified by the informer. He was apprehended and by search of his person heroin weighing 30 grams wrapped in polythene cover was recovered from the pocket of his vest. He is a marginal witness of the memo prepared after the recovery of the heroin. In crops-examination this witness stated that accused was alone in the taxi besides the driver. He denied the suggestion that one Yawar was also sitting in the same taxi and he had also got down in the Tehsil compound. P.W.5 Khalid Rashid, is the complainant. He has stated that he arranged a raiding party on information received from an informer and that at about 11-30 hours a taxi came in the Tchsil compound and the accused got down therefrom. This witness apprehended the accused and carried out his personal search and recovered heroin weighing 30 grams from the pocket of his vest wrapped in a polythene cover. He admitted in cross-examination that he had not procured any public witness to attest the recovery memo. He further stated in cross-examination that the same person, Yawar, was joined in the investigation but he denied the suggestion that the said heroin was recovered from him and that appellant was falsely implicated in the case.
4. The appellant in his statement recorded under section 342, Cr.P.C. Denied the recovery of any heroin from his possession. He further stated that he is an auto-electrician and that on the day of occurrence Manzoor, taxi driver of one Patwari had taken him to Tehsil office for repairing the car of a Patwari and that one other person namely, Yawar was also sitting in the front seat. When they reached the premises of Tehsil office, the Narcotics Staff officials came over but Yawar threw away one packet on seeing them which was picked up by the narcotics officials who also took the taxi driver Manzoor, Yawar and him to the office of Tehsildar where Yawar was let off and he was apprehended and the recovery of heroin was falsely shown against him. The appellant also made a statement on oath under subsection (2) of section 340, Cr.P.C. Wherein he repeated the same statement.
5. Learned counsel for the appellant has contended that there were many persons from the public present in the compound of the Tehsil office but none of them was made witness of the recovery memo and at least the taxi driver was available but he was not asked to attest the recovery memo.
The occurrence took place in the compound of Tehsil Office and no doubt many persons from public must be present there but it is common knowledge, of which the Courts must take judicial notice, that persons from public do not come forward as witnesses in cases. There are many reasons for that reluctance, protracted trials, attendance of Courts for giving evidence and wastage of time. Moreover, personal search of a suspect or an accused or a search of premises as envisaged by the provisions of section 103, Cr.P.C. Are two quite different circumstances. For the search of a premises the attendance of two respectables of the locality is a legal necessity under section 103, Cr.P.C whereas there is no such legal requirement for carrying out the search of a person. Taking all the aforesaid circumstances into consideration, the superior. Courts of the country have made many judgments wherein it has been held that police officials are also competent witnesses of personal search of an accused. There may also be cases where search is carried out from a place where no person from the public may be available. If it was mandatory to associate persons from public for carrying out search of a person, it would be very difficult in the aforesaid circumstance. P.W.4 Shaukat Hussain, A.S.I. And Nayyar Abbas Kazmi, A.S.I. Are two witnesses of the memo. Prepared with regard to the recovery of heroin weighing 30 grams and one of them was produced in evidence during the trial to prove the recovery of heroin from the possession of the appellant. The latter failed to prove any animosity against P.W.4 or to show as to what grudge the police had against him to falsely show 13 the recovery of heroin from his possession. Hence testimony of the latter cannot be discarded only on the ground that he is a police official. In this connection there is a wealth of case-law on the point that police officials are competent witnesses to attest the recovery memos. On the contrary the learned counsel for the appellant has cited two cases where the testimony of police officials was not believed. One is reported as PLD 1987 FSC 9, but perusal of this judgment will show that some evidence had come on record that police had some grievance against the accused. In the other case reported as 1988 P Cr. L J 711 the occurrence was alleged to have taken place in the heart of city but no effort was made to secure any independent person to witness the recovery of contraband and heroin.
However, there is now a consistent opinion of the superior Courts that police officials are competent witnesses of recovery memo and this contention of the learned counsel would not cut much ice to C absolve the appellant from the circumstance of recovery of the heroin from his personal search. As far as the contention that at least taxi driver was available and he could be made witness of recovery memo. Is concerned, it has come in the evidence that the said taxi driver had left the place before any search was carried out of the appellant.
6. The learned counsel for the appellant has also contended that P.W.4 Shaukat Hussain, A.S.I. Was not present at the spot at the time of recovery. But this contention is belied by the statement of this witness. He has deposed in p examination-in-chief that he was a member of the raiding party which was arranged by the complainant, Khalid Rashid, Inspector to apprehend the appellant.
Moreover, his signatures on the memos confirm his presence at the spot.
7. Another contention raised by the learned counsel for the appellant was that complainant, Khalid Rashid, was involved in a case of acceptance of illegal gratification and he was not a man of unimpeachable character and his testimony should not have been believed by the Court. In support of his contention the learned counsel produced a copy of F.I.R. No.225 recorded in Police Station Sadiqabad, District Rawalpindi on 9-7-1991 according to which the said witness had accepted illegal gratification for letting off one Aziz-ur--Rehman alleged killer of Javed Khan, complainant of that F.I.R. The learned counsel for the appellant has contended that it has been laid down in Fatawa Alamgiri', Volume 5 at page 272 that In this connection it is to be seen that the occurrence wherein the appellant was apprehended took place on 18-10-1987 whereas the report against the complainant, Khalid Rashid, was made in July, 1991 long after he had made a, deposition in the case in hand. Moreover, at this stage it is only an allegation that this witness was guilty of acceptance of bribe and the same has yet to be proved and has to stand the test of trial: Moreover, this allegation was made 4 years after the occurrence recorded against the appellant and at that time no such question about the character of the witness had come to light. This contention for the aforesaid reason is not acceptable.
8. The learned counsel for the appellant further contended that protraction of trial on account of delay in appearing as a witness was also a strong reason for discarding the testimony of that witness. In this connection he has referred to the principle for acceptance of evidence as laid down in `Fatawa Alamgiri---. In this connection he has quoted the following words from the same book at page 247 as uder:- The learned counsel has stated that the offence was alleged to have occurred on 18-10-1987 and the charge against the accused was preferred on 3-3-1988 but evidence could not be completed upto 16-7-1991 and the testimony of P.W.5 Khalid Rashid was recorded on 8-6-1991. I have carefully perused record of the proceedings. Some adjournments took place due to non--availability of witnesses. Some adjournments took place as the Presiding Officer was either not available or on leave or was transferred and his successor had not taken charge. So far as the circumstance of non-service of witnesses is concerned, for that we could not blame the witnesses as they were not aware of the date of recording their testimony and they had not wilfully committed default. In appearing in the Court. The study of the aforesaid --'fatawa' will show that the testimony of that witness becomes doubtful who wilfully makes default in giving the same but in the case in hand the witnesses E were not served and they did not know as and when they had to appear in the Court to record their testimony. The order sheets do not show that the witness had wilfully remained absent from the Court after being served. This contention of the learned counsel also does not make any defence.
9. The learned counsel for the appellant lastly urged that the appellant was a young man and he was the only bread-winner of the family and some leniency be shown to him. It transpires that the appellant was in early twenties when he was convicted. May be that he -is the sole bread-winner of the family, but evidence has come on record that he is a pedlar of heroin, which would mean that he is a party to the spread of the menace of heroin in the society. He has been indulging in this trade knowingly that many persons are becoming heroin addict through him. As such no leniency can be shown to him except F that he can be allowed the benefit of section 382-B, Cr.P.C. Which was not allowed to him by the learned trial Judge.
10. The appeal is partly accepted to the extent that the benefit of section 382-B, Cr.P.C. Is allowed to the appellant. Otherwise there is no merit in this appeal.