CH. EJAZ YOUSAF, J.---This appeal is directed against the judgment dated 4-3-1996 passed by Sessions Judge, Attock whereby the accused/appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 and sentenced to six years R.I. and twenty stripes alongwith a fine of Rs,20,000 or in default thereof further R.I. for one year. Benefit of section 382-B, Cr.P.C. was, however, extended to the appellant.
2. The facts, in brief, are that on 10-2-1994 at about 10.00 a.m. a bus bearing Registration No,3699 LPT was intercepted by Police Party at Check Post Attock Khurd. It was checked and thoroughly searched and in consequence, the accused/appellant, who was carrying a bag in his lap in the bus, was brought down on suspicion. He was produced before Syed Ghulam Shabbir Shah, the complainant in the case. On enquiry the accused/appellant disclosed his name as Malik Talib Hussain son of Malik Muhammad Din, resident of Bhagwanpura District, Lahore. The bag was also searched and from inside thereof five packets wrapped in polythene paper containing heroin, were recovered which, on weighing, was found to be eight kilograms. After taking out twenty grams of heroin from the same for sending to the Chemical Examiner, in a sealed cover, the remaining bulk of the heroin was also sealed in a separate parcel. Complaint i,e, Exh.P/A was accordingly written and sent to the Police Station for formal registration of the case.
3. After completion of the investigation, the accused was challaned to Court for trial. At trial the prosecution examined seven witnesses. P.W.1 Altaf Hussain, A.S.I. deposed that on 10-2-1994 he was posted as Muharrir "Malkhana" at Police Station Attock Khurd, when two parcels containing heroin were received by him from the complainant Syed Ghulam Shabbir Shah for keeping the same in the Malkhana which was done and, later, on 12-2-1994, one packet for chemical examination was sent to the office of Chemical Examiner through P.W. Altaf Hussain constable. He further affirmed that as long as he kept the parcel, the same remained intact. P.W.2 Muhammad Usman deposed that on 10-2-1994, he was posted as Additional Muharrir, P.S. Attock Khurd. He stated that he had drafted formal F.I.R. Exh.PA/1 on the basis of complaint Exh.P.A. Nasir Mahmood was examined as P.W.3. He deposed that on 10-2-1994 he was on duty at Attock Khurd when the bus in question was searched. He deposed that he himself had conducted the search under instruction of the A.S.I. and found the accused Talib Hussain holding the bag in his lap in the bus in suspicious condition. He was accordingly brought down and produced before the S.I. He stated that on search of the bag five packets of heroin were recovered from lower chamber thereof. All the packets were weighed which were found to be eight Kilograms. He further stated that the ASI separated twenty grams out of the same in a sealed parcel and the remaining heroin was also sealed and secured in a separate parcel vide memo Exh.P.A./B..P.W.4 Ghulam Shabbir A.S.I. affirmed on oath the contents of complaint Exh.P.A. and corroborated the Statement of P.W.3. P.W.5 Altaf Hussain constable deposed that on 12-2-1994 he was given a parcel containing twenty grams of heroin by Ghulam Hussain A.S.I. for delivering it in the office of the Chemical Examiner, Rawalpindi, which was delivered intact.
Mr. Altaf Hussain Kazmi Magistrate First Class was examined as P.W.6. He deposed that on 29-6- 1994 the S.H.O. P.S. Attock Khurd requested him through application Exh. P.E. that from the bulk of heroin recovered in this case, sample of 15 grams may be got separated so that the rest of heroin may be destroyed. He accordingly separated 15 grams of heroin and got sealed the same in a parcel under his supervision. He identified the said parcel which was present in Court as Exh.P.A./4.
He also produced order Exh.P.A./A whereby the remaining heroin was later on destroyed. P.W.7 Ch. Habibullah Magistrate First Class, Attock, deposed that on 2-10-1994 heroin weighing 765 grams pertaining to this case was destroyed in his supervision and a certificate to that effect Exh.P/F was issued by him which bears his signature. After producing Chemical Examiner's report Exh.P/G the D.A. closed the case for prosecution.
4. The accused/appellant was thereafter, examined under section 342 Cr.P.C. In his statement he denied the charge and stated that no bag was found in his possession. He, however, admitted that the bag in question was lying near his seat in the bus at the relevant time. He further stated that since that said bag was not claimed by any other passenger, therefore, he was brought down from the bus alongwith the bag. He further admitted that as a result of the search heroin weighing eight Kilograms was recovered from the said bag but he stated that he had been involved in the case falsely. He added that he was innocent and would neither produce evidence in his defence nor would make his statement in terms of section 340(2), Cr.P.C. After hearing arguments of the parties the trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para hereof.
5. We have heard M:s.. Farzana Rauf, learned counsel for the pauper accused/appellant as well as Mr. Jamshed Talat, Advocate who appeared for the State. The learned counsel for the appellant, has raised, mainly the following five contentions:-- (i)That the trial Court while convicting the accused has relied upon his admission made in his statement recorded under section 342 Cr.P.C. which as per law was required to be taken into consideration as a whole, whereas the learned trial Court has wrongly relied upon, the inculpatory portion thereof, and discarded the exculpatory portion of the statement.
(ii)that destruction of the recovered heroin by the Magistrate was illegal in view of the fact that under second proviso to section 516-A Cr.P.C. destruction of the case property could only be ordered by "the Court" competent to try the offence.
(iii)That the provisions of section 103 Cr.P.C. were not complied with and no member of the public was taken to witness the search and recovery of the contraband material.
(iv)All the witnesses are police men. Thus their statements were not worthy of credence.
(v) That the recovery of contraband material has not been proved from possession of the accused.
6. The learned State counsel, on the other hand, while controverting the above contentions, has urged that:--
(i) It has been proved by the prosecution that recovery was effected from possession of the accused/appellant.
(ii) Report of the Chemical Examiner was positive to the effect that the contraband material was heroin.
(iii) That in addition to the admission of the accused made in his statement recorded under section 342 Cr.P.C. sufficient evidence was available on record to connect the accused with the commission of offence.
(iv)that the Police has no enmity with the accused/appellant nor has any motive been shown to falsely implicate the accused.
(v) That the place and manner of recovery both have not been disputed.
7. We have given our anxious considerations to the submissions made by the learned counsel for the parties, and have also gone through the relevant record with their help.
8. In order to supplement her first contention that the learned trial Court while convicting the accused/appellant wrongly relied on his admission in his statement under section 342, Cr.P.C. that the bag containing contraband material at the time of Search was lying near his seat, wrongly presuming thereby that the bag belonged to him ignoring the exculpatory part of the statement.
The learned counsel for the appellant contended that under the law it was not open for the trial Court to take out and rely upon only the inculpatory part of the statement. She relied in this behalf upon the observations of the Honourbale Supreme Court of Pakistan made in the case of Sultan Khan v. Sher Khan reported in PLD 1991 SC 520.
No doubt in this judgment the Honourable Supreme Court of Pakistan has laid down the principle that statement of the accused under section 342 Cr.P.C. has to be taken into consideration in its entirety and inculpatory part thereof cannot be relied upon to the exclusion of the exculpatory part.
But, all the same, it has also been held therein that this principle would be applicable only where there is no other evidence available on record to supplement the prosecution case. It would be advantageous to reproduce herein below the relevant observations:-- "After excluding the entire prosecution evidence against the accused, the question called for determination is whether the statement of accused is to be accepted as a whole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the inculpatory statement. There is no doubt that the statement of an accused recorded under section 342 Cr.P.C. may be taken into consideration but the Court cannot select out of the statement the passage which goes against the accused. Such statement must be accepted or rejected as a whole. The Federal Court in Rahim Bakhsh v. Crown PLD 1952 FC 1 has observed that "if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that his statement should be taken into consideration in its entirety". The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part, if proved to be false, may be excluded".
In the case in hand no doubt the learned trial Court in its judgment, has made a reference to the admission of the accused, made in his statement, recorded under section 342 Cr.P.C. to the effect that at the time of search, the bag, containing contraband material was lying near his seat, yet while observing so the trial Court has also relied upon the statement of P.W.3 Nasir Mahmood who has unequivocally stated that the packet in question was recovered from physical possession of the accused. It was further noticed by the learned trial Court that the statement of P.W.3 in this behalf was also corroborated by the statement of P.W.4. As such he has not convicted the appellant solely and merely on his said admission. Further the exculpatory part of his statement is also belied by the circumstances of the case. In such view of the situation, the learned counsel for the appellant cannot take advantage of the case cited by her. The contention has therefore, no force.
9. As to the second contention of the learned counsel for the appellant regarding destruction of the case property by the Magistrate and his competency to issue certificate in that behalf within the purview of second proviso to section 516-A, Cr.P.C. Learned counsel for the appellant in this behalf has placed reliance on a single Bench judgment of this Court in the case of Nawab Ali v. the State (NLR 1995 SD 374) wherein it was observed that since under the second proviso to section 516-A it was the Court, competent to try the offence, to secure samples and then cause destruction of the remaining property under its control and supervision, therefore, proceedings carried out in this behalf i,e, securing of samples and destruction of case property conducted by Magistrate, who was not competent to try the case, would be illegal and of no evidentiary value.
We think it would be profitable to reproduce here in below the said provision in extenso. The proviso reads as under:-- "Provided further that if the property is a dangerous drug, intoxicant intoxication liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order 1979, (P.O. 4 of 1979) or any other law for the time being in force, the Court may, either On an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under certificate issued by it in that behalf.
Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court."
From bare reading of the proviso, it appear, that it has been enacted primarily to permit taking out of samples from the contraband articles seized as contemplated in the proviso, for easy handling of the same during any inquiry or investigation and trial as some time the seized articles may be too big to be handled conveniently or kept in custody safely and properly, and further for the destruction of the remaining bulk, after taking out the samples, which may no more be needed for the purpose of inquiry or trial. The contention of the learned counsel for the appellant however, that "the Court" mentioned in the proviso means the Court having jurisdiction to try the offence involved and that no other Court would be competent to act under the proviso, to our mind appears to be misconceived. The proviso cannot be detached from the main provision of section 516-A and is and ought to be controlled by the same, which reads as under:-- "Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed or which appears to have been committed or which appears to have been used for commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending. The conclusion of the inquiry of trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of".
The proviso read with the above main provision would, therefore, show that the word "The Court" in the proviso is used for and in reference to "any Criminal Court" used in the main provision without any clog of jurisdiction. The Proviso is not independent and "The Court" used therein can only be interpreted with reference to "any Criminal Court" in the main provision. The third proviso enacted in the year 1991 also leads to same inference. It appears that the main provision of section 516-A, Cr.P.C. to which the proviso is togged was not placed before the Hunourable Judge in case of Nawab Ali v. The State reported in NLR 1995 FSC, 374, and the proviso was not interpreted in the light of the main provision. We, therefore, do not feel persuaded to agree with contention of the learned counsel for the appellant and have also to respectfully differ with the view expressed in the judgment in this behalf.
Be that as it may, and notwithstanding the above, the main question for consideration is whether any defect in or deviation from the strict compliance of proviso would vitiate the trial or adversely effect the result thereof, unless it is shown to have reuslted in grave injustice or otherwise caused any serious prejudice to the accused. There is nothing of the sort, however, appearing from the proceedings nor has the learned counsel for the appellants own anything in that behalf to prove any prejudice, particularly when the kind and substance of the contraband material contained in the samples in the case is not disputed nor it is disputed or denied that the same was taken as sample from the Eight Kilograms of Heroin seized and recovered from the bag in the case. We therefore, feel that the technicalities, procedural or otherwise, if any, should not be given serious throught if the case stands otherwise proved. In this view of the matter, we are fortified by the observations of the Honourbale Supreme Court of Pakistan in case of Munawar Hussain and others v. The State reported in 1993 SCMR 789, wherein it has been held that in Narcotics cases approach of the Court could be dynamic and technicalities should be over looked. It has further been laid down therein that while deciding the case the Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding such procedural defects. Relevant portion, of the judgment reads as under:-- "We may observe that the Court cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized affluent and influential and, therefore, generally they manage to cause dents in prosecution evidence. In such like cases, which are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generation addicts to narcotic, the Court approach should be dynamic and they should overlook technicalities in the larger interest of the Country and the public at large. The Court is to consider the entire material on record as a whole and of it is convinced that the case is proved conviction should be recorded".
We therefore, do not find any force in this contention of the learned counsel as well.
10. It has also been argued on behalf of the appellant that the provision of section 103 Cr.P.C. was not complied by the police, any member of the public was not taken to witness the recovery nor any other independent person of the locality was associated while personal search of the appellant was conducted. As per our estimation this objection too, has no substance. It is well settled now that the provision of section 103 Cr.P.C. would be attracted only when a definite and positive place in a locality is required to be searched. Obviously, a moving vehicle or people travelling therein do not fall within the definition of a fixed and positive place. The Honourable Supreme Court of Pakistan, in a recent judgment delivered in the case of Muhammad Azam v. The State reported in PLD 1996 SC page 67 has been pleased to authoritatively answer this objection in the following words:-- "It is necessary in this case to such question of interpretation and requirements mentioned in section 103, Cr.P.C. in order to clarify position. Bare perusal of section 103, Cr.P.C. shows that it applies with full force when search is to be made of place which is in a locality. In other words it can be said that section 103 is relatable to the place and not to the person. If place is known where search is to be made and that place is situate in locality which is inhabited by the people, then it is necessary to join two or more respectable persons from that locality to witness the search. Main object behind section 103 Cr.P.C. is to guard against possible chicanery and concoction and for that reason witnesses from the locality are to be joined in the investigation and if this is done and for some reason subsequently in the trial Court those witnesses from the locality are not produced for the reason that they had been won over, then evidence of police officer who made the recovery can be believed if his conduct in the investigation is beyond reproach. It is held in the case of Muhammad Khan v. Dost Muhammad and others PLD 1975 SC 60 that requirements of section 103 are no doubt mandatory and fulfilled but if in the Court evidence of such witnesses from locality could not be produced for reasons satisfactorily explained then such evidence is to be accepted and not rejected merely on the ground that on that point there is evidence of police officer only particularly when requirements had been fulfilled. Much depends on the place where the search is to be made. Requirement of examining two witnesses from locality as contained in section 103 Cr.P.C. would not apply to a running vehicle which is stopped at some place where there are no houses in the vicinity and search is made for the purpose of recovery. In support of proposition reference can be made to the case of Muhammad Shah and others v. the State PLD 1984 SC 278 in which Shairat Appellate Bench has held that section 103 Cr.P.C. does not apply to a running vehicle but applies to a fixed place to be searched which is already known".
The learned counsel for the appellant also vehemently contended that since all the witnesses were Police witnesses therefore, their statements were not worthy of credence. This objection too, has no weight in view of the latest law laid down by the Honourbale Supreme Court of Pakistan in the Muhammad Khan v. The State 1994 SCM R 1543. Relevant observation's are as under:-- "From the perusal of the judgment cited above, it is manifest that the mandatory provision of section 103 Cr.P.C. requires the association of independent witnesses of the locality to witness the recovery and later on testifying to the same effect before the trial Court. The idea behind the insertion of this provision in the statute is to eliminate chances of false implication, and there can be no cavil with the legal proposition that as far as practicable the said provision must be strictly followed. There can, however, be no denying the fact that these days disinterested honest and respectable people normally avoid to involve themselves in such affairs and thereby incur the wrath and enmity of the persons whose premises are being searched and in the event of recovery, then to depose against them and assist the Court in their conviction for the crime, in most of the cases heinous ones. In case the police is able to secure the services of persons of the locality who are not strong enough to resist the temptation by the offenders, ultimately the whole exercise undertaken by the investigating agency becomes futile if they make obliging concession in Court in favour of the criminal, of course, not intentionally but on account of fear or pressure. It has therefore, been experienced that unless the police is certain about the integrity of the witnesses and are sure that they shall resist all temptation till the final conclusion of the trial by Court, they deem it proper to rest contended with the police officials witnessing the recovery and attesting the recovery memos. Taking the overall prevailing circumstances into consideration, it has been the view of this Court that police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them and the plantation of the articles in the particular circumstances of the case is not possible".
Thus the contention of the learned counsel in this respect too, has no force.
11.Now adverting to the next contention raised by learned counsel for the appellant it may be pointed out that though the appellant had straightaway denied the recovery of contraband material from his possession, yet as painted out above, it has come on record through the statement of P.W.3 Nasir Mahmood that at the relevant time i,e, when the bus was searched, the accused was found sitting therein keeping bag in question in his lap wherefrom 8 kilograms heroin was subsequently recovered in presence of witnesses. Relevant portion of his statement is reproduced herein below:-- "At 10.00 a.m. a bus bearing registration No,3699 LPT came from Peshawar side and stopped at the check post. Under the orders of A.S.I., I searched the bus. On finding Talib Hussain in suspicious condition who was having a bag in his lap I brought him down and produced him before the A.S.I. who searched the bag. In the lower chamber of the bag five packets of heroin were lying. All the said packets were brought out from the bag and on weighment were found to be eight Kilograms".
It may be mentioned here that the appellant has neither produced any evidence in rebuttal nor is there anything on record to shake the credence of the above statement. We are therefore, unable to subscribe to the contention of the learned counsel for the appellant that the contraband material, in question, was not recovered from the possession of the accused.
12. Further it has also come on record that the appellant is permanent resident of Bhagwanpura Lahore whereas he was apprehended at Check post Attock Khurd a place situated in the N.-W.F.P.
Province. Neither the appellant in his statement recorded under section 342 Cr.P.C. has disclosed any purpose of his visit to such a distant place nor did he offer any explanation, as to how he happened to be there. The silence and non explanation of the appellant in this behalf also reflects upon his conduct. It may also be noticed that neither any motive for false implication was alleged against the witnesses nor any enmity was attributed to the police. Plea of the accused, as appears from his statement recorded under section 342 Cr.P.C. is that the P.Ws. being Police Officials have deposed against him to show "Karwai". It does not appeal to one's mind that such a huge quantity of heroin i,e, eight Kilo grams which is valued in million of rupees could be implanted just to show "Karwai". We do not find ourself pursuaded to subscribe to these submissions.
In view of the above discussion we are of the view that the judgment of lower Court does not suffer from any infirmity or error meriting any interference by this Court. The same is accordingly maintained and the appeal is dismissed hereby. Suo motu notice is discharged. Benefit of section 382-B Cr.P.C. shall, however, remain intact.
Muhammad Khiyar, J.---I have the privilege to go through the judgment written by my learned brother Ch. Ejaz Yousaf, J. to be delivered in Jail Criminal Appeal No,78/I of 1996 titled Malik Talib Hussain v. The State. While agreeing with the judgment I would like to add following few lines.
The second proviso to section 516-A of the Code of Criminal Procedure empowers the Court either on application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. A bare reading of the proviso implies that samples have to be prepared under the supervision and control of the Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. The samples when prepared, destruction of remaining property should follow immediately. In the present case samples were prepared on 26-6-1994, and destruction order was obtained on the same day, but it took four months to destroy the remaining property, and the fact was also not brought to the notice of Trial Court which again passed order on 4-3-1996 for destruction of cases property after the period of appeal or revision if any. The intention of law maker in adding proviso to section 516-A Cr.P.C. seems to be that large quantity of narcotics recovered may not be misused and its production in the Court at the trial be made easy. The delay in destruction of narcotics may cause doubts in the functioning of the Agencies entrusted with the job of controlling drug trafficking. A copy of the judgment should be sent to the concerned Agencies for compliance. The appellant's punishment of stripes stands remitted under the Abolition of the Punishment of Whipping Act, 1996 (Act VII of 1996) which came into force on 15th April, 1996. With this modification the impugned judgment is upheld and appeal is dismissed.