' Appellant has assailed a judgment, dated 31-7-1996 delivered by the Court of Criminal Judge/Magistrate Section 30, Bhakkar whereby he has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 hereafter referred to as the said Ordinance and has been sentenced for three years R.I. And a fine of Rs,10,000 in default of the payment of the fine to undergo further R.I. For three months.
2. Story of prosecution in brief is that on 21-8-1991 at about 12.00 noon, Musarat Hussain, A.S.I.
Alongwith Muhammad Tariq, A.S.I. And other constables were present at Pull Sheikh Rao, in search of the accused Ehassanullah in case F.I.R. No,2, dated 3-8-1994. On receipt of spy information that the said accused was selling heroin standing near Khichi Kalan Mor, raid was conducted and the accused was apprehended. On his personal search 18 grains of heroin wrapped in plastic paper was recovered from the right flank pocket of his shirt, which was taken into possession and after registration of the case at Police Station Saddar and after investigation, appellant was challaned, and was charged under ABhakkarrticles 3 and 4 of the said order to which he did not plead guilty.
3. Prosecution examined five witnesses. Muhammad Tariq A.S.I. (P. W . 1) deposed that on 21-8-1994 while posted at Police Station Saddar Bhakkar, accompanied by other police personnel he was present at Pull Sheikh Rao in connection with the arrest of the accused Ehsan Ullah in a Case No,281 of 1994 under section 13/20/65 of the Arms Ordinance and received spy information that the said person was present at Khichi Mor who also happens to be a habitual seller of narcotics. He has proved the recovery of the contraband item by A.S.I. Musarat Hussain and arrest of the appellant.
He has also proved separation of one gram of heroin, preparing a parcel and sealing it. During cross he has admitted that the police party started from police station at 12.00 hours and that they had gone by a private wagon and the wagon was brought by him. He has further admitted that around Pull Sheikh Rao there was enough population and that the Investigation Officer had.Not joined any private person. He has further admitted that at the time of leaving the police station, entries are made into police diary. Allah Nawaz (P.W.2) H.C. Has proved that he joined investigation on 24-8-1993 i.e, three days after the occurrence. He joined Musarat Hussain A.S.I., (P.W.5) and the appellant/accused was on police remand. During investigation, the appellant disclosed that he used to sell heroin in partnership with Zaman alias Zama and another and that some more heroin was available with Zaman and that in case he is arrested some more heroin can be recovered and that he could point out the location of Zama. During cross he has deposed that on 24-8-1993 appellant Ehsanullah got recovered some more heroin. Muhammad Ashraf A.S.I. (P.W.3) has proved the receipt of Murasila and record of F.I.R. Exh.P.B. On 21-8-1994 by him. He has also proved that on the same date he received two parcels of the heroin: one that of sample and another that of the remaining heroin and the sample of heroin was handed over by him to constable Muhammad Tufail for taking it to the office of Chemical Examiner, Rawalpindi. Whatever the time the parcels were in his possession none had tampered with the same. Muhammad Tufail constable (P.W.4) has proved the receipt of the parcel containing sample of heroin on 22-8-1994 who had handed over same in the office of the Chemical Examiner, Rawalpindi on the next day i.e, on 23-8-1994 and that whatever the time parcel was with him none had tampered with it. Musarat Hussain A.S.I. (P.W.1) and Investigation Officer has proved that on 21-8-1994 he had gone in the company of other police personnel to find and arrest the appellant in Crime Case No,281 of 1994 under section 13/20/65 of the Arms Ordinance. He has also proved that on the basis of the spy information he got hold of the appellant near Khichi Kalan Mor and recovered from him 18 grams of heroin out of which one gram was separated and sealed the sample. The remaining heroin P/1 was taken into possession by him.
He recorded the statements of the witnesses of recovery under section 161, Cr.P.C. And then he arrested and challaned the appellant. During cross, he has admitted that he did not remember, as to whether on the date of occurrence some entry was made in the police diary or not. He has also admitted that they reached at Pull Sheikh Rao at 11-45 hours in the day. He has admitted that around Pull Sheikh Rao there were enough inhabitants and that he did not take any private person to be a witness of recovery because no independent person gets ready to become a witness. He has also admitted that they had gone by a wagon. He has admitted that he had himself weighed the heroin on the basis of weights of 10, 2, 5 and 1 grams and these weights are part and parcel of the kit.
' During his statement under section 342, Cr.P.C. The appellant has denied all the specific questions.
During question as to why this case has been registered against him he has replied. {{URDU TEXT}} ' He has declined to be examined on oath under section 340(2), Cr.P.C. In his defence he has examined one witness namely Amir Ahmed Moharrir of Police Station Saddar Bhakkar. In his examination-in-chief he has deposed that he has brought the record of Crime No,168 of 1989 of his police station which is Exh.D.A. During cross he has admitted that he has not brought F.I.R. And that the F.I.R. Exh.D.A was registered according to law.
4. I have heard the learned counsel for appellant and State. The learned counsel for appellant has contended that the story of prosecution is mechanical, fanciful and could not be believed; that the star witness A.S.I., Musarat Hussain Shah (P.W.5) is both the complainant and Investigation Officer and this position has vitiated the proceedings and in this respect reliance has been placed on 1991 MLD 443, 1995 M LD 1237, 1989 PCr.LJ 1334, PLD 1997 SC 408; that there is a conflict between the deposition of P.W.2 indicating that the recovery was made on 24-8-1994 and P.W.5 who is deposing that recovery of 18 grams of heroin was made on 21-8-1994; that P.W.5, the Investigation Officer, has admitted that he does not remember as to whether an entry in police register was made when the police party had proceeded for arresting the appellant in a case and this is an irregularity which cannot be brushed aside; that in case the Investigation Officer had gone to arrest the appellant under any case under section 13/20/65 Arms Ordinance, there was no need on taking the weight kit; that the case is that of two versions, one that of occurrence on 21-8-1994 and another that of recovery on 24-8-1994, hence, it is a case of doubtful nature; that an advance spy information was available with the police personnel and they could have arranged independent private persons as the witnesses of recovery, yet it has not been done and in this context reliance has been placed on 1986 PSC 28, that the raiding party should have arranged a fake purchaser in the presence of the information of the sale of heroin, yet it was not done and in this context reliance has been placed on 1992 PCr.LJ 1750; that an enmity with another police official is emerging from the evidence of the case per Exh.D.A. Which is indicative of the direct enmity between Qamar Khichi and the appellant, yet it has not been considered and finally it has been contended that the appellant is not a previous convict and, therefore, it is a case of mitigating circumstances. The learned counsel for the State has contended that P.W.2 had joined the investigation on 24-8-1994 and was not a recovery witness on 21-8-1994 and therefore, there is no discrepancy between the deposition of P.W.2 and P.W.5; that the kit of weight is usually a part of investigation/patrolling team and they normally keep it with them for use at the proper occasion; that the Investigation Officer and complainant can be the same person and the cases cited are distinguishable from the present case; that there is no violence of provisions of section 103 Cr.P.C. As it is not applicable on the persons who are not in a place and in this context the reliance is placed on the majority view of the case cited as PLD 1996 SC 574; that the police is not, in any way, inimical to the appellant and in case many F.I.Rs, have cropped. Up at various police stations under different provisions of law it is due to appellant's own nature of being a habitual criminal and in this respect reliance is placed on 1997 PCr.LJ 1088 and finally it has been contended that the Investigation Officer P.W.5 has already explained that normaly public do not cooperate with the police to become an independent witness and, therefore, the Investigation Officer was constrained to have kept police personnel as the witnesses of recovery and that officials of the police are as good witnesses as is the general public.
5. Since the learned counsel for the appellant has mainly relied on the apparent discrepancy between the deposition of P.W.2 (constable Allah Nawaz) and P. W.5 (A. S.I. Musarat Hussain Shah), the Investigation Officer of the case, I propose first of all to deal with this contention. Allah Nawaz, P.W.2, has clearly mentioned that he was made to join investigation on 24th of August and that on that day the appellant, while being in police custody, had disclosed that he could lead to his partner Zaman alias Zama from whom heroin could be recovered and in fact it appears that this recovery on 24-8-1994 was made from that person Zaman on the pointation of the present appellant and there is no nexus with the recovery of 18 grams of heroin on 21-8-1994 in the present case in which there are witnesses other than the P.W.2 and that recovery is the subject matter of the present case. The recovery memo. Exh.P.A. Is indicative that the witnesses of the recovery of 18 grams of heroin are Muhammad Tariq A.S.I . (P.W.1), Shaukat Ali and Musarat Hussain (P.W.5). Both the recoveryIP witnesses namely P.W.1 and P.W.5, have proved the recovery of 18 grams of heroin and this is that narcotic about which the report of the chemical examiner Exh.P.E. Is also positive.
Consequently, I am of the considered view that this contention of the counsel for the appellant is misconceived and in fact the recovery of 18 grams of heroin from the appellant has been proved beyond any reasonably doubts.
6. It has been contended that P.W.1 (Muhammad Tariq) has replied to a suggestion' during cross that the police party started from police station at 12 hours during the day time, whereas P.W.5 (Musarat Hussain) has admitted that the police had reached Pull Sheikh Rao at 11-45 hours during the day and this is the conflict between the two witnesses. I do not find any force in this contention because it makes a difference of half an hour to 45 minutes as the police party had gone in a wagon and not on foot. This so-called contradiction is minor in nature and could not be considered substantial to set aside the story of prosecution. Even otherwise, the witnesses are supposed neither to be parrot like nor to be identical cassettes of the tape-recorders in which the programmes are set and when switch of the tape recorder is made on the cassettes start repeating the same words. It is an age-old principle of justice that such minor discrepancies which are not substantial in nature do inspire confidence in the witnesses and in case the witnesses go on repeating the same words they are considered to be the tutored ones. Consequently, this contention is rejected outrightly.
6. The contention that same person is a complainant and Investigation Officer in the present case is an irregularity has been dealt with at length in a recent unreported case of a D.B. Of this Court in Criminal Appeal No,142/I of 1996. (Re: Taga Khan etc. v. The State) at para. No,5 of the Judgment.
The said para. Is reproduced here.
"At the outset, the first and foremost point which has agitated our mind is that in the presence of clear and binding rulings of the superior Courts of ' Pakistan as well as judicial principles accepted by the civilised world since times immemorial, it is totally unjust that same person becomes a complainant, investigation officer, is Station House Officer of the police station in which complaint is lodged as F.I.R., is the first informer and also holds powers of a criminal Court being a Naib- Tehsildar recording partly judicial confessional statements and remanding the appellants to himself. The age-old principles and practices of the Courts given below are trampled in this case in maxims (1) a communi observantia non est recedendum (from common observance there shall be no departure), (2) Cursus curia est lex Curiae (the practice of the Court is the law of the Court),
(3) nemo debet esse judex in propria causa sua (None should be a Judge in his own cause) (a maxim which is philosophical background of section 556, Cr.P.C. Which reads: ' "Case in which Judge or Magistrate is personally interested.--No Judge or Magistrate shall, except with the permission of the Court, to which an appeal lies from his Court, try any case to or in which he is a party, or personally interested and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself."
' (4) Nemo doubus utatur officiis (No one should hold two offices), (5) nemo ius sibi dicere potest (no one can declare the law for himself), (6) nemo potest gldii potestam sibi vel cujus alterius coercitionis ad alium trasferre (No one, to whom is delegated a power of coercion can himself transfer it to another), (7) nemo sibi essesiudex vel suis ius dicere debet (no one ought to be his own judge or the Tribunal in his own affairs.
' What has happened is that Riaz Ahmed (P.W.10) is addressing himself as {{URDU TEXT}} in his Murasila/complaint dated 4-8-1994 (Exh.P.O.) to which he himself gives caption as {{URDU TEXT}} or F.I.R. Giving information about the incident. As admitted by him is his deposition he was Naib- Tehsildar, Kingri on the same date was also S.H.O. Of Police Station Levies, Kingri. His Original complaint addressed to himself being S.H.O. And captioned as F.I.R. Does not indicate the name of the first informer, but during examination-in-chief he has disclosed the first informer was Jamadar Levies Rasham who came to him at 7 a.m. On 4-8-1994 and told him about the dacoity at Saratay.
Neither this first informer was examined nor his name appears in the calendar of witnesses in the challan. The Challan was finalised by the same complainant/Naib-Tehsildar as Investigation Officer and S,H.O. Of police station Levies, Rarasham, but mysteriosly in column No,1 of the challan one Wadera Asad Khan s/o Wadera Hasan Khan Jahanani Khetran of District Barkhan is appearing as first informer and complainant. But again he was neither examined nor included in the calendar of witnesses. Throughout the evidence in the Court, only once Wadera Asad comes into picture and immediately fades away when during cross to counsel for appellant Shah Gul, to a suggestion Riaz Ahmed (P.W.10) has denied the company of Wadera Asad and Wadera Gulzar from the beginning till end of investigation and that appellant Shah Gul was arrested on their instance. This Asad Khan S/o Hasan Khan is now petitioner in Criminal Revision Petition No,38/I of 1996 dated 8-8-1996 in which he has not disclosed his relationship with deceased, but has prayed for enhancement of sentence to death. It appears that he has not signed his petition and signatures are that of his counsel Muhammad Munir Peracha. No affidavit is attached with the petition. To our surprise, there is one another person Karam Khan son of Murad Khan by caste Khetran of District Barkhan who claims in para. No,1 of his application dated 13-10-1996 that he is the petitioner in application 38 (i.e, Cr.Rev.38/I-96) and that he and the people of the area investigated and with much difficulty got arrested the accused/appellants. In para. No,3 of this application Karam is disclosing: {{URDUTEXT}} ' There is one application, dated 18-9-1994 available in the police file and has not been exhibited at all. It is addressed to Assistant Commissioner, Moosa Khel and is in the nature of a direct complaint under section 200, Cr.P.C. The complainant is Wadera Asad Khan son of Hasan Khan and is indicating that deceased was a paternal cousin of the complainant. In this complaint he named appellants Nos.1 to 6 as the respondents accused and is silent about appellant No,7 i.e, Syed Essa Shah. This complaint has been disposed off by the Magistrate (A.C.Moosa Khel). In violation of the mandatory provisions of Chapter XVI of Cr.P.C. It has simply been forwarded to Naib-Tehsildar Kingri (i.e,. P.W.10) with directions {{URDU TEXT}} on 18-9-1994.On the same date there is another order in different writing and appears to be that of Riaz Ahmed (P.W.10) himself but in his capacity as a Magistrate. The order reads: {{URDU TEXT}} That is also the reason, prima facie, that in challan, dated 27-9-1994 Asad Khan has been shown in column No,1 as first informer and complainant. It appears that remand of appellant Wazir from 15-9-1994 to 18-9-1994 was given by this complainant cum-Investigation Officer while officiating as a Magistrate. All this illegality has clearly vitiated the proceedings as the Investigation Officer Riaz Ahmed has worked out of jurisdiction, and all his actions are found to be corum non judice. Such officers create a mockery of law. In this context clear rulings are available, inter alia, cited as 1985 PCr.LJ 1378, 1995 M LD 1532. This irregularity is not curable as it is a view held since times immemorial that any act out of jurisdiction is void and a nullity in the eyes of law.
' Now it can well be seen that all proceedings get vitiated for being void upon a complainant-cum- Investigation Officer who also acts or pose to acts as a Magistrate in the same case which act, in itself, is either corum non judice or calls for a writ of quo warranto. Section 556, Cr.P.C. Is clear on this point. In the present case, the complainant-cum-Investigation Officer (P.W.5) has neither acted as a criminal Court nor has posed as such. Hence, the proceedings cannot be termed as void. So far as the maxim nemo duobus utatur officiis (No one should hold two offices) is concerned, in the present case, Musarat Hussain Shah (P.W.5) has held one office of Investigation Officer. Complainant is State as an abstract idea and he only represents it as a concrete living rational object. As such, in my humble opinion, it is no office. Other maxims quoted in the abovementioned unreported judgment are not applicable.
' Consequently, this contention fails in the circumstances of the present case.
7. All other contentions regarding section 103, Cr.P.C. Or admission of P.W.5 that he does not remember whether entry was made in police diary or not whereas other P.Ws., have admitted such entries are misconceived. Appellant was found on the road selling heroin and his personal search resulted into the recovery of 18 grams of the said intoxicant and, therefore, no violation of section 103, Cr.P.C. Has taken place.
8. I do not find any mitigating circumstances as the appellant has already been awarded with lesser punishment. Consequently, the impugned judgment is upheld. Appeal fails. Benefit of section 382-B, Cr.P.C. Is extended to the appellant. .