1990 PLP 1463 (MLD)

3. Prosecution case in brief is that A.S.I. Muhammad Anwar Khan of Police Station Khanpur received a secret information that appellant is dealing in narcotics. On 11‑12‑1987 Muhammad Anwar Khan, A.S.I. alongwith police party was present at Bus Stand Farooqia. There appeared wagon No. 293‑RIG from Taxila. The passengers got down. Thereafter person of the appellant was searched but nothing was recovered. Muhammad Anwar, A.S.I. then searched the wagon and recovered a plastic bag containing 27 purries of heroin weighing 18 grams and 9 grams of charas from under the cloth cover of the driver seat. The memo was prepared which was attested by Mahmood Khan, Head Constable and Ali Mardan, Constable. One gram of heroin and 4 grams of charas were separated and sealed into separate parcels. ASI then recorded fromal F.I.R. (Ex. PA) and sent to the Police Station Khanpur for registration of the case. The case proceeded and finally appellant has been convicted as stated above. The charge under Article 4 of the said Order was framed to which appellant pleaded not guilty.

4. Prosecution in support of the case examined Muhammad Anwar Khan, A.S.I. He corroborated the version as given in the first information report and stated that he recovered heroin and charas from the cover of driver seat. The heroin was in 27 purris and 4 pieces of charas in a plastic bag. He has stated that he arrested the appellant and recorded the statements of witnesses and sent heroin and charas to Chemical Examiner and finally handed over the papers to S.H.O. who submitted complete challan in Court. P.W.2 Muhammad Farid Khan, S.H.O. registered the formal case and produced F.I.R. (Ex.PA/1) and finally submitted the challan. P.W.3 Mahmood Khan is Mashir of recovery and eye witness. He has stated that on 11‑12‑1987 they received information that Nazir driver of Wagon No. 293‑RIG is dealing in heroin and charas. He alongwith Muhammad Anwar Khan, A.S.I. and other police constables came at Farooqia Adda when at about 1440 hours the wagon came with passengers at the bus stand and the passengers alighted from the wagon. Thereafter personal search of the driver was taken but nothing was recovered and during search of driver seat, Muhammad Anwar Khan recovered heroin and charas wrapped in plastic bag. The heroin was in 27 purris and charas consisted of 4 pieces. The charas was 9 grams and heroin was 18 grams. He has stated that one gram of heroin and 4 grams of charas were taken and were sealed into separate parcels. The remaining heroin and charas was sealed separately and such memo (Ex.PW.1/1) was prepared and he signed.

5. The appellant in his 342, Cr.P.C. statement has denied the allegation and stated that witnesses are police officials and are interested. He gave statement under section 340(2) Cr.P.C. on oath in which he stated that some two years back at `Peshi' time at Farooqia Adda Muhammad Anwar, A.S.I. alongwith 4/5 Constables came and Muhammad Anwar, A.S.I. wanted to take his wagon which he refused. He then went away. On this account Muhammad Anwar, A.S.I. was not happy and fabricated this case against him and nothing was recovered from his possession. The alleged heroin was planted on him. Appellant examined one Haji Muhammad Younus in his defence. He has stated that appellant Muhammad Nazir, is known to him. He travelled in the wagon of the appellant from Taxila to Farooqia Adda where police officials came. They had a talk wit the accused. Therefore, he was taken alongwith wagon. He stated that polio officials have neither searched wagon nor the person of the accused. The passengers were also not searched. He stated that nothing incriminating was recovered from the accused in his presence. In cross‑examination he has state that accused is his co‑villager. He was not summoned by the Court. He came with the accused.

6. We have heard Mr. Nasir Saeed Shaikh, learned counsel for the appellant. It is argued that report of the chemical examiner has not been proved according to law, there is no conscious possession from the appellant and the provisions of section 103, Cr.P.C. have not been complied with. He has referred to the cases reported in AIR 1955 Rajasthan 82 (Vol‑ 42, C.N.27), 1987 SCMR 1177, PLD 1988 FSC 29 and PLD 1987 SC 288 (Shariat Appellate Bench). It is argued that there are some contradictions in the evidence of the witnesses. Mr. Nasir Saeed Shaikh frankly admitted that punishment of stripes is mandatory under Article 4 of the said Order. Mr: Hadaitullah Khan, Assistant Advocate-General, N. W. F. P. has supported the conviction and stated that narcotics were recovered from the seat cover of the appellant and both the witnesses have fully supported. It is argued that appellant has not been able to prove any enmity with police.

7. The incident took place at Farooqia Bus Stand on 11‑12‑1987 at 1440 hours. The report was lodged on the same day without any delay. The appellant was apprehended on the spot. From the driver seat 18 grams of heroin and 9 grams of charas were recovered. Complainant, Muhammad Anwar Khan, A.S.I. and P.W. Mahmood Khan, Head Constable have fully supported the case and they were cross‑examined at length but no material has been brought on record to discard their evidence. The appellant has not shown any enmity with these witnesses in his statement under section 342, Cr.P.C. Even in the cross examination no suggestion has been made to both the witnesses that there was any dispute between appellant and A.S.I. Muhammad Anwar. The name of defence witness, Haji Muhammad Younus, was neither mentioned in 342, Cr.P.C. statement nor in statement under section 340(2) Cr.P.C. that he also travelled in the wagon of the appellant. The learned counsel has referred to two cases from Indian Jurisdiction in respect of evidentiary value of chemical examiner's report. The law on this point has been amended in Pakistan and according to section 510, Cr.P.C., the report of Chemical Examiner, Serlogist etc. may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding but Court may, if considers necessary in the interest of justice, summon and examine the person by whom such report has been made. On this, reference has been made to the case of Sultan and others v. The State reported in 1987 SCMR 1177. In this case their Lordships at page 1187/B have observed as under:‑‑ "We think the proviso gives discretion to the Court to summon and examine the officer concerned if an application for it is made by the prosecution or the accused. But if the accused does not choose to the Court o summon examine the expert as to the ‑‑‑subject matter of the effect is the same as if the accused has exercised this right and opportunity and actually cross‑examined the officer as to the subject‑matter of the report so that the evidence furnished by him does not suffer from any infirmity or blemish that it is not given oath and is untested by cross‑examination. The language employed in the proviso leaves to the Court the option to summon and examine the Expert or Chemical Examiner, if the Court does not feel it necessary to examine the officer and the accused does not make a request to summon and examine him, the report may be used in evidence even without examining the Expert. There can be no question of compelling prosecution to examine the expert when it has no doubt as to the result of the report. To conclude we would hold that there is no doubt that the provision of law contained in section 510, Cr.P.C. is of an exceptional nature. It is, however, deliberately enacted by the Legislature and the Courts are, in our opinion, bound to give effect to it so long as it remains on the statute book whatever may be said of the wisdom and the policy underlying it. It can hardly be open to the Courts to render the enactment nugatory by refusing to attach any weight to the reports in question. If they are not to have any weight, there would be no object in making them admissible in evidence. To our mind the intention of the Legislature is that they should have the same value as they would have if they were formally proved by the sworn testimony. It is always open to the Courts to call the expert when this course is deemed to be necessary in the interest of justice."

8. In the present case no request was made in trial Court from the side of accused to examine the Chemical Examiner nor the Court found it to be necessary.

9. The other contention of the learned counsel is that Chemical Examiner has not given the reasons in his report, therefore, it could not be treated as evidence. We have gone through the report (EX.PW.1/3) in which the Chemical Examiner, in his opinion, has stated as under:‑‑ "The suspected material contained in the abovementioned parcels were subjected to chemical treatment/analysis which revealed the following:‑‑ (1) The suspected material in parcel No.2 WAS HEROIN. (2) The suspected material in parcel No.4 WAS CHARAS. (3) The record of the test/analysis was preserved in the Lab: case file." Therefore, we are of the opinion that these points cannot help the defence. The next point is in respect of conscious possession and reference has been made to P L D 1987 S C 288 (Shariat Appellate Bench). The narcotics were secured from the seat which was being occupied by the appellant. Therefore, he was fully aware about the narcotics and in the case of Said Shah and two others v. The State reported in P L D 1987 SC 288 (Shariat Appellate Bench) cited by the learned counsel the facts are different. With regard to the applicability of section 103, Cr.P.C., the Shariat Appellate Bench in a case of Muhammad Shah etc. v. The State reported in P L D 1984 SC 278 has held that in personal search the provisions of section .103, Cr.P.C: do not attract. With regard to the evidence of police officials, we want to refer case of Sarfraz Durrani v. The State reported in P L D 1987 FSC

22. At page 24, it has been held ‑as under:‑‑ "I however, find no reason to reject the evidence of a sane adult Muslim just for the reason that he is in the Police Department. The Islamic Law makes specific provisions for the rejection of a witness. No such disqualifications are pointed out. Moreover, if a police officer disqualified himself as a witness I wonder if he can serve as a police official at all?" For the reasons stated above, we are of the view that case has been proved. We, therefore, dismiss the appeal. With regard to the sentence of whipping. It is an admitted position that when any accused stands convicted the sentence of whipping is mandatory requirement of the law. We, therefore, in addition to the sentence already awarded by the trial Court, order that appellant shall be awarded fifteen stripes. The appellant is on bail. He has been remanded to custody to serve out the sentence. M.BA./519/F.S.C Order accordingly.