1997 P Cr (PLP)

(2) That it was alleged by the prosecution that the contraband material was found tied with the belly of the appellant yet the piece of cloth, which was allegedly used for the purpose was not produced at the trial. (3) That the contraband material was implanted against the appellant as he refused to bribe the police.

7. The learned Additional Advocate-General on the other hand controverted these contentions and additionally it has been submitted:-- (i) that the appellant has not disputed recovery of heroin nor he has disputed search carried out by the police. Appellant's case before the trial Court was that the contraband material was not recovered from him but was recovered from one of the seats of the pick-up. (ii) that the recovery was proved to the hilt by the prosecution through independent witnesses including driver of the pick-up in which the appellant was travelling at the relevant time. (iii) That huge quantity of heroin weighing one kilogram was recovered from possession of the accused, therefore, possibility of implantation was out of question. (iv) That the appeal is barred by 131 days. No explanation with regard to the delay has been made in the application submitted for the purpose. (v) Levies Personnel have neither any motive to falsely implicate the accused nor any enmity has been alleged against them. He as such prayed that the appeal may be dismissed.

8. I have given my anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record with their help. First contention raised by learned counsel for the appellant is that the police in view of section 155(2), Cr.P.C. was not competent to carry out search of the vehicle as well as person of the appellant without order of the Magistrate, in view of the fact that the offence allegedly committed by him was non- cognizable. He also made a reference to section 2(J) of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order or the Order) and said that since "vehicle" has been included in the definition of a "place" appearing in section 2(J) of the Prohibition Order, therefore, it does not fall within the definition of a public place as provided by section 2(1) of the Prohibition Order, hence the offence was not cognizable in view of section 16(1)(b) of the Order. In order to supplement his argument he placed reliance upon a Division Bench Judgment of this Court delivered in the case of Muhammad Yameen v. The State 1987 PCr.LJ 2239 wherein it was held that the offence having been committed in a vehicle was not cognizable under section 16(1)(b) of the Prohibition Order thus defect in the investigation had vitiated the trial. Before dilating upon the above objection I feel it necessary to reproduce hereinbelow, relevant portions of the law: "Section 155(2), Cr.P.C. reads as follows:-- When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the (Judicial Magistrate). (2) Whereas section 2(J) is as under:-- "place" includes a house, shed, enclosure, building, shop, tent, vehicle, vessel and aircraft. (3) Section 16(1)(b) of the Prohibition Order provides:-- The following offences shall be cognizable

(a) an offence punishable under Article 3; and (b) an offence punishable under Article 8 or Article 11, if committed at a public place." A bare perusal of the above provisions of law would reveal that the learned counsel for the appellant has perhaps raised this objection under a misconception. No doubt it is provided in section 155, subsection (2), Cr.P.C. that no Police Officer shall investigate a non-cognizable offence without order of the Magistrate of First or Second Class, yet the fact remains that the offence of transportation of heroin by no stretch of imagination could be termed as a non cognizable offence being culpable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and having been committed in a vehicle which was being used as a public carrier at the relevant time. I am not convinced by these arguments of the learned counsel for the appellant that since the heroin was recovered from the person of the appellant while travelling in a vehicle which is not a "public place" within the definition of section 2(1) of the Prohibition Order, therefore, the police was not competent to carry out search of the vehicle as well as person of the appellant without a proper warrant. A bare perusal of section 2(1) would reveal that after the words "park, garden" the use 31 words "or other place to which public has free excess" includes in itself all such vehicles which are either being used as public carriers or the public has a free excess thereto. Since the vehicle in question at the relevant time was being used as a public 'carrier, therefore, the presumption would be that, it was included in the definition of a public place as defined in section 2(1) of the Prohibition Order. Therefore, I am inclined to hold that the police was competent to carry out search, seizure and subsequent proceedings in relation thereto without obtaining a warrant. Even otherwise the case of Muhammad Yameen v. The State is distinguishable from the case in hand due to this simple reason that in that very case appellant was found drunk in a private car, which of course falls within the definition of a "place" as the public has no excess to it, therefore, the observations made in Muhammad Yameen's case have no relevance to the present one. This objection as such is without any substance. So far as the second contention of the learned counsel for the appellant is concerned it would be pertinent to mention here that the recovery of contraband material from possession of the appellant was proved through reliable evidence including the statement of P W .3 who is driver of the vehicle. The accused has also confessed his guilt in his statement recorded under section 164, Cr.P.C. which was proved to be true and voluntary at the trial, therefore, the non-production of the piece of cloth with the help of which contraband material was allegedly tied on the stomach of the accused was immaterial. Even otherwise if produced the cloth would have rendered additional corroboration to the prosecution case, therefore, non-production of the piece of cloth by the prosecution is of no help to the defence. The objection being purely technical in nature, cannot affect merits of the case in view of the observations of the Honourable Supreme Court of Pakistan duly made in the case of Munawar Hussain alias Bobi and 2 others v. The State reported in 1993 SCMR page 785 wherein it has been unequivocally laid down that in narcotics cases approach of the Court should be dynamic and technicalities should be overlooked in the larger interest of the country and the public at large and that the Court while deciding the case should consider the entire material as a whole and if it is convinced that the case is proved then, notwithstanding any procedural defect in the proceedings conviction should be recorded. 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 organised, affluent and influential and, therefore generally, they damage to cause dents in the prosecution evidence. In such-like case, which are not only damaging the image of Pakistani nation in the community of nations, but are making our young generation addicts to narcotics, the Court's 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 if it is convinced that the case is proved, conviction should be recorded." As discussed above the recovery of contraband material was proved through independent and reliable evidence. Confessional statement of the appellant though retracted was duly proved at the trial and was found to be voluntary by the trial Court. Besides implantation of such a huge quantity of heroin i.e. one kilogram, which is worth lacs of rupees was not possible. Further, neither any motive for false implication was either alleged by the defence nor proved at the trial nor any enmity to any of the P.Ws. was ever attributed, therefore, view taken by the learned trial Court appears to be well -founded and the technicalities if any are to be ignored. The upshot of above discussion is that the appellant has failed to point out any legal infirmity in the impugned judgment so as to call for interference by this Court, appeal as such has no substance in it which is dismissed accordingly. N.H.Q./1102/FSC Appeal dismissed.