JUDGMENT MUHAMMAD KHIYAR, J. - This appeal by the state has been filed against the judgment of acquittal dated 27:2.1995 passed by Ch. Abdul Majeed, Judicial Magistrate Section 30, Rawalpindi.
2. The facts in brief are that on 6.6.1994 at 8.00 P.M. Muhammad Shafi accused/respondent herein was apprehended by narcotics police and from his possession I0O grams heroin was recovered.
Twelve grams heroin was separated as sample for examination by chemical examiner and the remaining was sealed into a separate parcel. Muhammad Sharif Toor,^F.I.O. P.S. Narcotics, Rawalpindi, drafted complaint Ex.PB/1 on the basis of which FIR No. 39/94 dated 6.6.1994 under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) was registered against the accused/respondent who was challaned to Court to face trial.
3. At the trial, the respondent did not plead guilty to the charge. To prove the charge the prosecution produced Manzoor Hussan, constable (PW.l) who had delivered l2 grams of heroin in the offic< of the chemical examiner on 8.6.1994, Muhammad Yousaf, constable (PW.2) a member of K.L.R. Sh. C. raiding party who witnessed the recovery of heroin from the respondent and attested the recovery memo Ex.PA as marginal witness. Zahid Mehmood constable (PW-3) also signed recovery memo Ex.PA and deposed about the recovery of heroin from the accused/respondent by the raiding party led by Muhammad Sharif Toor F.I.O. Muhammad Sharif Toor (PW-4) supervised the raid, recovered I0O grams heroin from the possession of the respondent vide memo Ex.PA out of which l2 grams were separated as sample for examination by chemical examiner. He drafted the complaint Ex.PA/1 *and sent it to P.S. Narcotics Rawalpindi for registration of the case. He recorded the statements of PWs under Section 161 Cr.P.C, prepared site plan Ex.PC and handed over the case property to the Muharrir. On receipt of chemical examiner report and Ex.PD accused/respondent was challaned to Court. Shaukat Hussan (PW-5) deposed about the safe custody of case property in the Malkhana and sending it to chemical examiner on 8.6.1996 through Manzoor Hussan constable.
4. After the prosecution of evidence was closed, accused/respondent was examined under section 342 Cr.P.C. He denied that I0O grams heroin was recovered from his possession. He stated that in fact Muhammad Sharif Toor and his colleagues by jumping over the wall entered his house when he was asleep. They* robbed him of cash amount of R.s.10500/- and other household articles and on interference of his wife hot words were exchanged and in defence heroin was planted and false case, has been registered against him. The accused/respondent also appeared as his own witness and in defence produced his neighbour Muhammad Afsar and his wife Mst. Mehmooda Begum who deposed that Muhammad Sharif Toor, F.I.O. And his colleagues had entered the house at 7 P.M.
And robbed him of cash amount and of other household articles. On interference by Mst.
Mehmooda Begum w/o the accused/respondent they threatened them and arrested the accused/respondent and that nothing was recovered from him.
5. On perusal of the evidence the trial Court found that the Moharrir who registered the FIR was neither cited as witness in the calander nor produced as witness in the case and due to this negligence FIR could not be exhibited in evidence. The recovery of heroin was held as not genuine because nobody from the public had witnessed the recovery. The Court accepted the defence version as true and in view of the discrepancies in the statements of PWs about the packing of heroin, doubt was found to have been created in the prosecution case. The Court therefore vide judgment dated 27.2.1995 acquitted the accused/respondent under section 245 Cr.P.C, and ordered for destruction of heroin.
6. The state has assailed the above judgment of the trial Court in this appeal.
7. Sardar Muhammad Siddique Khan, Advocate for the State contended that the recovery of heroin from the accused/respondent is proved by the police officials who are as good witnesses as anybody else unless it is shown that they have any motive for false charge. There is no such motive and defence version is unbelievable. The learned counsel argued that charge under section 4 of the prohibition order was proved against the accused/respondent and that the trial Court committed illegality in acquitting him, of the charge and that he should be convicted. Reliance was placed on the following cases:- 1995 S.C.M.R. 1497 1992 S.C.M.R. 1475 1991 S.C.M.R. 458 1989 S.C.M.R 491
8. Mr. Tariq Pervaiz Janjua, Advocate for the accused/respondent on the other hand argued ' hat non-compliance of mandatory provision of Section 103 Cr.P.C, is fatal to the prosecution which should benefit the accused/respondent. The case s concocted * due to personal grudge of Muhammad Sharif Toor with whom the wife of accused/respondent exchanged hot words when he jumped over the wall and entered the house and robbed him of the cash amount and household articles. The FIR was not exhibited and as such the registration of the case is hot proved. Learned counsel further contended that contradictions in the statements of the PWs about the packing of heroin are very material and no reliance can be placed on their testimony. Reliance was placed on the following case law:-
1. 1992 P.Cr.L.J. 35 Karachi
2. 1992 P.Cr.L.J. 435 Peshawar
3. PLD 1988 Lahore 574
4. PLJ 1990 Cr. Case Lahore 26
9. We have given our careful consideration to the respective contentions of the learned counsel for the parties and have also gone through the evidence on record. It has come in the evidence that the narcotics police officials arranged raid on receiving secret information that a person was selling heroin near his house. The raiding party consisting of Muhammad Sharif Toor, Zahid Mahmood, Manzoor Hussan, Muhammad Yousaf (PWs) and others proceeded to the spot known as Kachi Abadi Khayaban Sir Sayed and then on the pointation of informer the accused/respondent was apprehended and on personal search, from right pocket of his shirt polythene envelope containing heroin weighing I0O grams was recovered. Out of I0O grams, twelve grams of heroin was separated as sample and sealed info separate parcel. The remaining heroin was also sealed into a separate parcel and recovery memo Ex.PA was prepared. On the complaint of Muhammad Sharif Toor, F.I.O(PW-4) case was registered against the accused/respondent. The sample was kept in the Malkhana. On 8.6.1994 Manzoor Hussan, constable deposited the sample parcel in the office of chemical examiner, Rawalpindi whose report Ex.PD is in the positive. The contentions raised by the defence are firstly that recovery of heroin having not been witnessed by anybody from the public it is not genuine and secondly that heroin has been planted due to the misbehaviour of accused/respondent's wife with Muhammad Sharif Toor, F.I.O. Who with his party entered the house and robbed them of cash amount and other household articles. The contentions are devoid of force. Muhammad Sharif Toor (PW-4) has in very clear words stated that despite his request nobody from the public was prepared to witness the recovery memo. We are inclined to believe him because of the public tendency not to witness the recoveries out of fear of incurring animosity.
The mere fact that recovery is not witnessed by anybody from the public does not mean that recovery is fake unless some evidence is brought on record to show that police witnesses, who had witnessed the recovery have some ulterior motive against the culprit. In the present case we find nothing on the record to show tha narcotics police officials had any motive to falsely implicate the accused/respondent in the case. The application of Section 103 Cr.P.C, was not required in view of the facts and circumstances of the case as held in Mirza Shah versus the State, 1992 S:C.M.R. 1475.
The Supreme Court held that:- "Section 103 is applicable to search made by a police officer during investigation but its applicability will depend upon the facts and circumstances of each case. If the circumstances are such that it is not possible to comply with it the Court will not insist on its Strict compliance but will examine other evidence produced by the prosecution to prove recovery with care and citation."
In this case heroin was recovered from the pocket of the shirt of the accused/respondent standing in the street in front of his house.' Place as defined in Section (2) (j) of the prohibition order includes a house, shed, enclosure, building, shop, tent vehicle, vessel and aircraft. A street is therefore not a place so as to attract the application of Section 103 Cr.P.C. The defence version that narcotic police jumped over the wall of the house and robbed the accused/respondent of the cash amount and household articles and on protest by his wife hot words, were, exchanged and due to that heroin was planted is simply unbelievable. We do not think that they had trespassed the house and robbed him of the valuables. If it was so the authorities could take action against them on the complaint made to them by the accused/respondent. Muhammad Sharif Toor, (PW-4) admitted that the accused/respondent had been submitting applications against him to make out a ground for bail but all his applications were rejected. The contradictions in the statements of PWs about the packing of heroin are not so material as to benefit the accused/respondent. The sample sent to the chemical examiner was found to be heroin as per report Ex.PD. The case law referred to by the learned counsel for the accused/respondent is distinguishable. The facts in all the cases are different from the facts of the present case, and as such are of no help to the accused/respondent.
The learned counsel for the respondent has not been able to show as to what is the effect of not exhibiting the FIR. The registration of the case on the basis of complaint Ex.PB/1 is not denied and omission in not exhibiting the FIR has not occasioned in failure of justice.
10. We are of the view that the prosecution has succeeded in proving the charge under section 4 of the prohibition order against the accused/respondent beyond reasonable doubt and his acquittal by the trial Court was illegal. We therefore accept this appeal, set aside the impugned judgment dated 27.2.1995 and on convicting the accused/respondent under second proviso of Article 4 of the prohibition order, sentence him to two years R. I. And fine of Rs.10,000/- in default of payment of fine to suffer six months S. I. The benefit of Section 382-B Cr.P.C, is extended to him. The accused/respondent present on bail be taken into custody and sent to jail, to undergo the sentence.