By judgment, dated 1st November, 1993, passed by the Civil Judge 1st Class/Magistrate (Section 30, Cr.P.C.), Shahpur Saddar District Sargodha, in Case No.19/CJ/93, appellant Pomi son of Muhammad Anwar Bhatti was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to R.I. For four years, five stripes and a fine of rupees two thousand and in default in the payment of fine to undergo further R.I. For a period of two months. Being aggrieved, the present appeal has been filed by the appellant. I have heard Mr. Ch. Nazar Hussain, learned counsel for the appellant and Mr. Khalid Mehmood Farooqi, learned counsel for the State.
With the assistance of the learned counsel, I have gone through the record including the impugned judgment.
2. In this appeal, a criminal miscellaneous application (Criminal Miscellaneous Application No.190/L of 1994) has been filed for condonation of delay in the filing of this appeal. According to the appellant, he is a young man of about 14 years and there was no male member in his family except his father who is an old man and also blind. The learned counsel for the State does not oppose the application for condonation of delay. The delay in the filing of this appeal is condoned. Criminal Miscellaneous Application No.190/L of 1994 is disposed of as such.
3. The case of the prosecution is that the appellant was coming in a public coach from Mianwali to Sargodha when the coach was stopped in view of the prior information from an informer and on the informer's pointation, the appellant, who was sitting in the coach was searched which resulted in the recovery of 100 grams of heroin, 250 grams of Charas and 50 grams of opium from a packet.
Three separate samples were taken from the recovered contraband narcotics. The appellant was apprehended on the spot and, after usual investigation, he was sent up for trial. During the trial, the prosecution examined 4 witnesses. P.W.1, Dost Muhammad had recorded the F.I.R.; P.W.2, Aftab Ahmad had taken the samples to the laboratory for chemical examination; P.W.3, A.S.I. Amjad Jalal was examined as recovery witness being a member of the Police Party; the appellant was searched by A.S.I. Rab Nawaz, who was examined as P.W.4. In his statement under section 342, Cr.P.C., the appellant denied that any narcotic was recovered from him. As observed, by the impugned judgment, the appellant was convicted and sentenced under Article 3 of the Prohibition Order, 1979. It may be observed here that according to the prosecution version given by P.W.2, Amjad Jalal and P.W.4 Rab Nawaz, the grandmother of accused, namely, Mst. Khurshid Bibi indulged in the sale of narcotics at a large scale; the appellant (grandson) used to bring the narcotics for her and the informer's information was that on that particular day also the appellant was bringing narcotics of different kinds from Mianwali side for his grandmother.
4. According to learned counsel for the appellant, the convict was falsely implicated in this case on account of enmity; it was argued that there are discrepancies in the evidence given by the two main witnesses for the prosecution, namely, Amjad Jalal and Rab Nawaz; it was emphasized that, according to Amjad Jalal, information by the informer was given at 7-40 a.m. On 13-11-1992, whereas, according to A.S:I. Rab Nawaz, the information was received at 11-30 a.m. And immediately action was taken and then within a few minutes the coach came and the appellant was apprehended with contraband goods; it was pointed oat that registration number of the coach was not given by the witnesses and stated that they did not remember the registration number; it was contended that no public witness was associated in the recovery proceedings and as such there was violation of the mandatory provisions of section 103, Cr.P.C.; and finally it was submitted that the appellant is a young person of about 14/15 years and, if at all his conviction is being maintained, it is an appropriate case for suitable reduction in the sentence.
5. On the other hand, Mr. Khalid Mehmood Farooqi, learned counsel, representing the State, submitted that no evidence of enmity could be brought on record and it was a clear case of transportation of contraband narcotics and nothing has been brought on record to show that the police had animosity to involve the appellant falsely in this case. According to learned counsel, section 103, Cr.P.C. Was not applicable and, in any case, the two police officials, namely, Amjad Jalal and Rab Nawaz stated in their evidence that they had asked several people to be associated as Mashirs in the recovery proceedings but they declined. According to the State Counsel, no case is made out for interference.
6. In a recent decision of the Supreme Court in the case of Mirza Shah v. The State reported in 1992 SCM R 1475, while considering the provisions of section 165(4) read with section 103 of the Code of Criminal Procedure, it has been held that, during investigation, in so far as it is possible, the provisions of section 103, Cr.P.C. Should be applied by the police officials carrying out investigation.
It was held that these provisions were mandatory. It was also held that the provisions read together were not restricted to searches made in closed areas but also applied to searches in any other areas and also in public vehicles. The Supreme Court was of the view that if it was not possible to apply the provisions of section 103, Cr.P.C. In the search procedure, it was obligatory on the police/investigating authorities to explain reasons for non-compliance of the said provisions.
7. In the present case, from the evidence adduced on behalf of the prosecution itself, it is apparent that the police had advance information and, according to P.W.2, Amjad Jalal, the police had four hours' prior information about the expected arrival of the appellant at the place where he was apprehended later on with the contraband articles and, therefore, the police should have made efforts for compliance of the provisions of section 103, Cr.P.C. Which admittedly was not done.
8. Learned counsel for the State laid great emphasis on the statement of both police witnesses, namely, Amjad Jalal and Rab Nawaz, that they had asked several people at the scene but no one came forward to become recovery Mashir. In my view, these are general statements and do not satisfy the principle enunciated by the Supreme Court in the case of Mirza Shah v. The State 1992 SCM R 1475. The explanation for non-compliance of section 103, Cr.P.C. Should not be in the form of general statement that no one was ready to come forward. The prosecution witness in this regard should make a detailed/specific statement about the efforts made; for instance, giving the names of the persons who were asked; whether any notice was given under section 103(5), Cr.P.C. To some persons who refused to become recovery Mashirs. In any case, admittedly, the police had sufficient advance information from the informer and as such they could have made arrangements for compliance of section 103, Cr.P.C. Before the arrival of the coach, in which, according to the prosecution, the appellant was expected to arrive.
9. Learned counsel for the State has contended that there are several decisions of the Superior Judiciary to the effect that in present times, in such cases, persons from public do not come forward to become recovery witnesses and that a police officer is a competent witness. It may be observed that the latest decision of the Supreme Court on section 165(4) read with section 103, Cr.P.C. Is the decision of the Supreme Court in Mirza Shah's case 1992 SCM R 1475 and the principles laid down there rule the field.
10. It has also been laid down by the Supreme Court that when prosecution witnesses in recovery cases only comprised police personnel, their evidence must be scrutinized with great care and caution. While examining the evidence of Amjad Jalal and Rab Nawaz, in the light of the aforesaid principles laid down by the Supreme Court, it is found that there are discrepancies in their evidence and as such it is, even otherwise, unsafe to base the conviction of E the appellant on the testimony of the said two witnesses. It may be pointed out that, according to Amjad Jalal, information given by the informer was received at 7-40 a.m. Whereas according to Rab Nawaz such information was given at 11-30 a.m. Then the entire basis of the prosecution case against the appellant was that he was a transporter of narcotics for his grandmother, Mst. Khurshid Bibi. According to police, Mst.
Khurshid Bibi carried on sale of narcotics at- a large scale and the appellant used to bring narcotics for such illicit business to Mst. Khurshid Bibi. Strangely enough no evidence was brought on record regarding Mst. Khurshid Bibi as to whether she carried on her business of dealing in narcotics and what was the basis of the information that she was a dealer in narcotics. Both the prosecution witnesses, namely, Amjad Jalal and Rab Nawaz, stated that Mst. Khurshid Bibi had never been involved in any narcotics case in the past.' Then it is range that, being aware of the appellant's arrival well in advance in a coach, the police record does not even have the registration number of the coach and both the witnesses stated in their evidence that they did not remember the number of the coach. Obviously, neither the driver nor, the conductor of the coach was examined by the police during investigation as their names are also not available on the record.
11. As a result, this appeal is allowed, the judgment, dated 1-11-1993 of the Civil Judge 1st Class/Magistrate (Section 30, Cr.P.C.) Shahpur Saddar, District Sargodha, in Case No.19/CJ of 1993 is set aside and it is directed that appellant Pomi son of Muhammad Anwar Bhatti be released forthwith unless required in any other case.