M. HUSSAIN ADIL KHATRI, J.- The appellant has challenged the judgment dated 30.8.1990, passed by VIth Additional Sessions Judge, Karachi East, in Session Case No.404 of 1990, whereby he has convicted the appellant for a charge under Section 4 of the Prohibition (Enforcement of Hadd)
Order, 1979, and awarded minimum sentence of Two years ' R.L, whipping of five stripes and fine of Rs.1,000/- and in default of payment ef 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, alongwith the subordinate staff and two persons of public searched the person of the appellant. 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 P.S. Quaidabad. The heroin was however weighed at a shop at some distance from the railway crossing. The prosecution examined PW-1, Mohammad Hanif, who acted as Mashir of recovery and Arrest of the appellant and PW-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.
2. The learned counsel for the appellant has contended that PW-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 Vs. The State, reported in NLR 1989 SD 11, wherein the then Acting Chief Justice of Federal Shariat Court has 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 Police man from the shop and the other witness had deposed that the heroin was weighed at the nearby hop. 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.
It was next contended by the learned counsel that PW-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 IV of 1979. The submission has no substance. Art. 27(1) read with Art. 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.
3. It is contended that PW-2 arrested the appellant, conducted the search, affected 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 over board. 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 Mohammad Anwar Vs. 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 Emperior Vs. Khawaja Nazir Ahmed (AIR 1945 Privy Council 18) and Bashir Saigol Vs. The State (PLD 1964 Lahore 148). The same view was expressed by a Division Bench of this Court in the case of Faiz Mohammad Vs. The State (PLD 1979 Kar. 513) and unreported judgment in C.P. No.D-388 of 1989, Alpha Insurance Co Ltd. Vs. Assistant Director, FIA.
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 affected and PW-1 is admittedly, the resident of a place situated at a distance of about 6 or 7 kilo meters 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 Vs. The State (PLD 199Q Kar. 275) after considering the host of the case law observed that the residence of the 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 over-ruled.
4. 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 PW-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.
The learned counsel then submitted that PW-2 in his deposition in Court stated that he and other members of the patrolling party were on foot whereas PW-1, had stated that they were in a Pick Up.
It has been noted that in the examination-in-chief of PW-2, the words "on foots" are mentioned. In cross- examination, PW-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 Session Judge did not know the correct, plural of the noun'foot'.
5. 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 PW-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. PW-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.
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 in as much as the minimum punishment permissible under law was awarded. The appeal is, therefore, dismissed.