1. ' Petitioner Abdul Wahab has filed this revision against his conviction under section 4/6 of the West Pakistan Prohibition of Opium Somking Ordinance, 1960 (hereinafter called the Ordinance) by Railway Magistrate, Quetta, on 12th September, 1974, which was upheld on appeal by the learned Sessions Judge, Quetta on 15th November, 1974.
2. ' Briefly the facts are that on 19th August, 1974 the staff of the Excise Department raided the house of the petitioner, in company of two witnesses and found his co-accused persons, Muhammad Shafi and Muhammad Ismail smoking opium, while Abdul Wahab was present with opium pipes and other smacking material. All three weie challenged. While the smokers admitted their guilt the petitioner denied the charge and even alleged that the said house did not belong to him. He was however found guilty of keeping pipes and utensils for smoking, as well as for keeping a plate for such purposes and therefore was convicted under sections 4 and 6 of the Ordinance, and sentenced to undergo three months' rigorous imprisonment with a fine of Rs, 500 or in default to undergo further rigorous imprisonment for one and a half months.
3. ' The first contention raised by Mr. I. H. B. Hanfi the learned counsel for the petitioner is that the prosecution has not been able to show if the house in question belonged to the accused. By this, the learned counsel means to say that the prosecution has not brought any documentary evidence from the Revenue or Municipal records that the house belongs to the petitioner or any evidence to the effect that he was a regular tenant of the premises. For the purposes of section 6 of the Ordinance the only thing to be proved is that the person, accused of an offence under this section, keeps a place for the purposes enumerated in the section. This would mean that the place is in the keeping and management of the person accused of the offence. It the prosecution succeeds in proving the possession of the accused for the illegal purposes referred to above it would meet the requirements of sectio 6. Documentary proof of the nature alleged by Mr. Hanfi would not be necessary. In the present case the repeated contention of various prosecution witnesses chat the house raided was that of Abdul Wahab, is not disputed either through cross- examination of such witnesses or through independent affirmative evi dence. A simple denial of the accused in his statement under section 342, Cr. P. C. Would not be enough in this regard.
4. ' In this connection it is also contended that the petitioner was not asked a specific question if the house was kept by him. There is no doubt that when the petitioner was examined under section 342, Cr. P. C. No separate question was asked on this point. But in question No, 2 he is clearly asked if he in the northern room of his house, was assisting his co-accused in .Smoking opium. It is therefore clear that the question of the house being his has been duly asked. In Sonafar Ah's case
(1) their Lordships of the Supreme Court held that perfunctory examination of the accused does not prejudice the accused and therefore the trial is not vitiated.
5. ' As to witnesses of recovery the objection taken is that they do not belong to the immediate vicinity of the house of the petitioner and that they are not entirely respectable. Section 103, Cr. P. C. Enjoins that respectable persons from the locality should be called upon to witness a recovery of this sort.
6. The two recovery witnesses live on Abdul Sattar Road which is a lane next and parallel to Art School Road, the road upon which the house of the petitioner is located. Being so close to the house of the petitioner it cannot be contended that they did not belong to the same locality. The law nowhere lays down that only neighbours of immediate vicinity should be called as witnesses of recovery.
7. ' As to respectability of these witnesses Janan is a shopkeeper while the other is a businessman.
8. There is only one question asked from Janan if there was a case against him which he promptly denied. There is no such question asked from Abdul Salam. No affirmative evidence is forthcoming in this regard. Being a shopkeeper and a businessman makes them respectable enough to be witnesses of recoveries.
9. ' Finally the learned counsel of the petitioner contends that petitioner has been awarded severer punishment as he has been sentenced to undergo substantive imprisonment while his co- accused, who were found indulging in smoking, whereas the petitioner was not, have been let off after a punishment of fine only. This, according to Mr. Elanfi, has been in spite of the fact that section 4 which applied to the co accused of the petitioner, prescribes higher maximum penalty than section 6 of the Ordinance which would cover the offence of the petitioner. This higher penalty awarded to the petitioner, according to the learned counsel for the petitioner was because of admission of previous conic ions made by the petitioner during his examination under section 342, Cr. P. C., which could not be made the basis of higher penalty unless previous convictions were duly proved in the manner prescribed by section 511, Cr. P. C., i. e. By production of certified extracts from the records of such Courts as had convicted him, or by a certificate of the Incharge of tte Jail where the punishment was inflicted.
10. ' In the first place it is incorrect to assume that the petitioner has been wrongly punished under section 4 of the Ordinance and that be could only be punished under section 6 for keeping a place for smoking. The implements used for smoking were duly recovered from his possession, which is an offence under section 3 of the Ordinance, punishable under section 4 thereof. Mr. Hanfi contends that the evidence of recovery of such implements is solely based on the statements under section 342, Cr. P. C. Of his co-accused persons and is therefore not to be relied upon in view of Akhtar Gal v. The State (2). The reasoning in this case follows upon the proposition that section 30 of the Evidence Act demands that the confession be 'proved' and from that it is deduced that only confessions made under section 164, Cr. P. C. Are construed by section 30 to be relied upon. On this reasoning it is held confessions made in the course of examination under section 342, Cr. P. C.
11. Are to be excluded from consideration. Proof is required of confessions, made not in the presence of trial Courts but before Magistrates other than the trial Ms gistrates, or before other persons. And therefore in their case, the insistence of their being properly proved before they can be made
(I) 1969 SC MR 461 (2) PLD 1960 Pesh. 110 ' the basis of conviction of the co-accused of the makers of such confessions. But in cases where confessions are made during examination of the accused, in the presence of the trial Magistrate, the proof of having made such confession would not be necessary. They can alwa3s he taken into consideration for determining the guilt of the co-accused. Reliance in this behalf can be placed upon Nirmal Chandra De v. Emperor (1), William Cooper v. Emperor (2), Dial Singh v. Emperor (3), and Rs, Vempalli Balt Reddy (4). But such evidence is considered to be of the weakest type. In the present case however it is not the only piece of evidence on the point. P. Ws. Abdul Salam and Janan have also stated that pipes and utensils used for smoking opium were recovered from the house of the accused.
12. ' This discussion shows that he was guilty of offences under sections 3 and 6 of the Ordinance, respectively punishable under sections 4 and 6 thereof. Being guilty of more than one offence it cannot be argued that he was given harsher penalty in the circumstances of the case. ' provisions of section 511, Cr. P. C. Are attracted only when section 75 of the Penal Code is tried to be pressed into service or if there is an offence under a special law, and if such special law provides a higher punishment for those who repeat such offences, only then it would be necessary to follow the provisions of section 511, Cr. P. C. The Ordinance does not provide any higher punishment for habitual offenders. Therefore section 511, Cr. P. C. Would have no application in the present case.
13. But if it had, the section provides the above-referred to two modes of proving previous convictions, "in addition to any other mode provided by law for the time being in force." A confession made by the accused during the trial, if he was duly charged, would be that mode which is provided by law.
14. Reliance in this regard can be placed upon Amir All v. The State (5) and Qasim Din v. The State (6).
15. ' In view of the above discussion I find no force in the revision and dismiss it. The accused who is on bail, is taken in custody to undergo the unexpired portion of his punishment.
(1) A I K 1927 Cal. 265 (2) A 1 R 1930 Bom. 354
(3) AIR 1936 Lab. 337 (4) 22 1 C 157
(5) PLD 1959 Pesh. 70 (6) PLD 1958 Lah. 421