' Appellant has assailed a judgment delivered on 24-12-1996 by the Court of III-Additional Sessions Judge, South, Karachi whereby he has been convicted under Article 4 of Prohibition (Enforcement of Hadd) Order 1979, hereinafter referred to as the said Order, and has been sentenced to R.I. For 5 years and fine of Rs,5,000 in default of the payment of fine to suffer R.I. For six months more. He is further sentenced to suffer 5 stripes. Benefit of section 382-B, Cr.P.C. Has been extended. He has been acquitted from the charge under Article 3 of the said ordinance.
2. Police constable Muhammad Khan (P.W.3) of Police Station Nabi Bakhsh Karachi South lodged an F.I.R. At the said police station on 1-9-1990 at 00-30 hours that on the same date at about 005 hours he was on patrol accompanied by H.C. Ahmed Khan for control of crimes that on spy information Ahmed Khan tried to catch hold of Saeed Ahmed alias Saidu a habitual seller of narcotics opposite Saleem Hotel. Accused/appellant took out a dagger and with an intent to kill Ahmed Khan, he repeatedly injured him seriously. With the assistance of Sabir Hussain, Muhammad Khan and Zar Khan (P.W.1) the culprit was apprehended and from him a double- edged dagger was recovered and taken into the custody of police. On personal research, one bag of plastic was recovered from right side pocket of the shirt which contained 309 grams of heroin.
' Appellant was charged under Article 3/4 of the said Order to which he did not plead guilty. To prove its case, prosecution examined 3 witnesses. Zar Khan (P.W.1) has proved memo. Of Recovery Exh.5 and has also proved the occurrence. Muhammad Rasib (P.W.2), A.S.-I. Has proved recording of F.I.R. Preparation of memo. Of recovery at police station and weighment and sealing of the recovered heroin. He sealed the recovered Chhuri and sent the injured to Civil Hospital.
Muhammad Khan (P.W.3) the complainant, has proved the occurrence. He has also proved that injured H.C. Ahmed Khan was referred to the hospital from police station, but he died on his way.
Consequently an F.I.R. Of murder was also lodged by him against the appellant. In his statement under section 342, Cr.P.C. The appellant has taken the plea of defence in the following words:-- "The police was compelling me to sell heroin for them and to give the Bhatta but I refused to this had business upon which police was annoyed with me and they involved me in this case falsely and foisted heroin powder upon me. I am innocent."
He has declared to be examined on oath and has not produced any witness in his defense.
3. I have heard the learned counsel for appellant and Advocate-General for State. The counsel for appellant has, firstly, contented that admittedly memo. Of recovery and arrest (Exh.5) was not prepared at the spot, but rather at police station. Recovered heroin was also weighed and sealed first time at police station and this creates strong doubts about fabrication and foisting. True that in the normal circumstances, recovered intoxicant is weighed and sealed at the place of occurrence before witnesses and such Mashimama is prepared, but this is a different case altogether. Zar Khan Pathan (P.W.1) has deposed as under:- "As H.C. Ahmed Khan advanced forward to snatch Chhuri from him, the accused attacked on him and caused him two blows with his Chhuri on his chest towards the left side. Then I Sabir Hussain and P.C. Muhammad Khan over powered the accused and caught hold of him. After snatching the Chhuri from the accused Muhammad Khan searched the person of accused and secured one Thelli from the side pocket of the accused which contained heroin powder. We then immediately rushed injured H.C. Ahmed Khan to Police Station Nabi Bux in my car. The accused was also taken to police station in my Suzuki. The injured H.C. Ahmed Khan was removed in police mobile to Civil Hospital whereas I remained at the police station At the police station the duty officer opened the Thelli and weighed heroin powder which weight came to be 30 grams. The duty officer sealed the heroin powder and prepared such Mashirnama. I produce such Mashirnama as Exh.5 It is same.
Correct and bears my signature."
' Muhammad Rasib (P.W.2) has deposed: "It is a fact that the Mashirnama of recovery of Chhuri and heroin powder was prepared at the police station. Injured H.C. Ahmed Khan was brought in a private car. I do not know whose car was that. I had inspected the car. There were blood spots on the car. I did not prepare any Mashirnama about the car and presence of blood in it. ... It is a fact that P.C. Muhammad Khan had told me that he had secured the Chhuri and heroin powder from accused but I myself had not secured the same from the accused."
' Muhammad Khan (P.W.3), the complainant has deposed: "The dagger struck with Ahmed Khan on his heart. I then with the help of two Mashirs over powered accused and caught hold of him. I searched the person of the accused and secured one plastic Thelli from his right side pocket which contained heroin powder. We then put injured H.C. Ahmed Khan and accused in our vehicle and brought them to Police Station Nabi Bux. I handed over the accused, the dagger secured from him and the heroin powder secured from accused to S.H.O. The S.H.O sent injured H.C. Ahmed Khan to Civil Hospital through our other police. I remained at police station and lodged F.I.R. With S.H.O. While going from police station to the Hospital. H.C. Ahmed died on his way and the police returned back to police station and give to us such information. I had lodged F.I.R. Of murder as well as F.I.R. Of heroin case. I see the F.I.R of this case as Exh.7. It is same, correct and bears my signature. A.S.-I. Rasib has weighed the heroin powder and its weight came to be 30 grams."
' A person who was injured at the spot by the appellant on the chest affecting heart with a dagger was in a serious condition. The normal human conduct at that moment was to save the life of the injured rather than to initiate all that lengthy process of weighment, preparation of the memo. Of recovery and recording of statements under section 161 Cr.P.C. The complainant and others took the natural course and immediately brought the culprit/appellant alongwith recovered material and the injured to the police station where the procedure was completed. The witnesses, in this regard, are inspiring confidence. Resultantly this contention is rejected as misconceived.
4. It has also been contended that there is a violation of section 103, Cr.P.C. As according to the counsel, independent Mashir of recovery Zar Khan (P.W.1) who has deposed is resident of Nazimabad and per chance was sitting with another given up Mashir namely Sabir Hussain at Gulzar Abbasi Hotel in the locality where the occurrence had taken place. Hence this Mashir of recovery is not an inhabitant of the locality in which the place to be searched was situated.
Reliance in this respect is placed on 1996 PCr.LJ 651, 1972 PCr.LJ 478 and 1996 PCr.LJ 639.
' So far as the first citation is concerned it concerns the search of a place whereas the present case concerns the personal search of appellant found in a suspicious condition and standing at a public place known as Abbasi. Chowk 1996 PCr.LJ 639 enunciates the following ruling at placentium C:-- "In this case, there is violation of mandatory provisions of section 103, CR.P.C. The Excise Inspector had advance spy information and was going to raid a house and, therefore, he should have ensured that two respectable witnesses from the public were associated in the recovery proceedings. This was admittedly not done. On the contrary, two witnesses, namely Mahmood and Javed, were allegedly called at the Excise office and they accompanied the raiding party to the house of the appellant. Even these two 'Mashirs', namely, Mahmood and Javed, were not examined and the explanation given by Inspector Riazul Hassan that they were not traceable and there was no possibility in the near future of their availability cannot be accepted. If these two 'Mashirs' had been called at the Excise office by the Inspector, it would follow that the two ' Mashirs' were known to the Excise Inspector previously. A doubt has been created whether these two witnesses, namely, Mahmood and Javed in fact existed. The argument of learned counsel for the appellant that these two so-called' Mashirs' were fictitious persons cannot be brushed aside lightly."
In the present case no doubt has been created about the Mashirs of 8 recovery and their being fictitious. In fact Zar Khan (P.W.1) has been examined in the trial Court. Hence it is not applicable. So far as ruling at placentium of 1972 PCr.11 478 is concerned, it is applicable in the normal circumstances. It reads: "Not only this he goes on to state in his cross-examination that both the Mashirnamas had been prepared at Thana and also that the shirt had been sealed at Thana. This cannot be called, therefore, a recovery in the eye of law particularly when Mashirnamas are prepared at police station and the articles are sealed and packed not at the spot at the time of recovery but later on at the police station. We do not give any credence to the allegation of the prosecution that the recoveries have been properly made of the incriminating articles. The rest of the witnesses, i,e,, Khalilur Rehman P.W. The Investigating Officer is of not much value to the prosecution because first he was not an eye-witness of the occurrence, secondly the Mashirs even contradicted his statements and also the eye-witnesses contradicted themselves in all material facts."
' Indeed the preparation of the Mashirnamas of recovery at Police station and not at the spot do discredit the story of the prosecution, but in the peculiar circumstances of the present case, life of a person, in whose chest a dagger was drawn twice, was at stake and that is why everything was immediately removed to the police station. Consequently this contention is rejected keeping in view the special abnormal circumstances of this case.
5. Another contention for the appellant is that the report of the expert of finger prints has not been obtained with regard to the dagger recovered from the appellant. Muhammad Rasib (P.W.2), the Investigation Officer, has admitted during cross that he had not sent the Chhuri to the Finger Print Expert. This contention, in fact, concerns another case of murder against the appellant. Presently we are dealing with the recovery of heroin from the appellant which has been proved by P.W.1 and P.W.3. This contention is, therefore, repelled.
6. The contention that the samples were received by the Chemical Bacteriological Laboratory for chemical analysis on 15-12-1990 i,e, about 3-1/2 months after the recovery vide Exh.12 could have been of some avail to the appellant in case such suggestions regarding safe custody of the incriminating substances would have been made from the P.Ws. Or otherwise some proof regarding tampering with the material would have been brought on the record. On the contrary, the Report of the Chemical Examiner is indicating that the material sent for analysis was perfectly sealed and it was 30 grams of heroin. 600 grams of powder was consumed in analysis, remaining case property was returned in a sealed cover. This contention is therefore rejected.
7. It has also been argued that Muhammad Rasib (P.W.2) has deposed that the heroin powder was weighed from the shop of Sobat Khan which is opposite to police station, whereas Muhammad Khan (P.W.3) has deposed that the powder was weighed by A.S.-I. Rasib at police station and that it was not weighed at the shop of Sobat at the Wardat. This apparent conflict is in fact no conflict at all. P.W.3 has simply denied the weighing of heroin at the spot from some shop belonging to Sobat.
He has not denied the existence of the shop of Sobat opposite to police station.
8. The allegation that the appellant was not confronted with the positive Report of Chemical Examiner Exh.12 is patently wrong. In statement under .Section 342, Cr.P.C. Question No,3 and reply thereof are quoted verbatim:-- ' Q. "It is alleged that the heroin powder was sent to the Chemical Analyzer and he reported that the powder sent to him was a heroin powder of commercial grade, what have you to say?
' Ans. I do not know.
9. The allegation that the record does not show as to who took the recovered heroin to the Chemical Examiner and who exhibited it as Exh.12 is again incorrect. Report per Exh.12 indicates that H.C. Noor Khan No,392 had handed over the sealed white paper parcel to the competent Authority.
So far as the exhibition of the report as Exh.12 is concerned, it appears from the impugned page 2 that it was exhibited by Muhammad Rasib (P.W.2), but the language used is confusing. However, the confusion is removed when we refer the matter to question No,3 posed in statement under section 342, Cr.P.C. It proves that the report was already on the record as an Exhibit otherwise the question could not have been asked from the appellant. Consequently this allegation is refuted for being the result of confusion created by erroneous language used in the impugned judgment.
10. The upshot of the discussion is that the impugned judgment is upheld and the appeal is dismissed.