2006 PLP 1501 (MLD)

SALIM KHAN, J.

Arif Javed S.H.O. recorded a Murasila which was converted into F.I.R. No.10, dated 14-1-2003 of Police Station, K.T.S., District Haripur. It was mentioned in the Murasila that it was complained publicly that Aziz Khan was selling Charas and opium at his house to the customers, that the complainant along with Bashir Hussain Shah A.S.-I. Muhammad Saeed D.F.C., lady constable Kalsoom and other police officials raided the house of Aziz Khan, but he decamped from his house on jumping to the vacant plot near to his house from the roof top of his house. It was further alleged that a shopping bag containing 5 slabs of Charas was recovered from beneath the used clothes in the residential room of the accused which weighed 5 kilograms, that samples were taken which were sent to Chemical Examiner. The accused was later on arrested, tried, convicted and sentenced to one years' R.I. and a fine of Rs. 10,000 or to undergo simple imprisonment for one month in case of default. Benefit of section 382-B, Cr.P.C. was also extended to the accused-appellant. Hence, the present appeal.

2. The learned counsel for the appellant contended that Kalsoom constable was shown present at the time of raid in each of the cases under F.I. Rs. Nos. 8, 9 and 10 within a span of one hour and she was shown present in each of such F. I. Rs. in such a way that her presence for the purposes of other case could not be imagined. He also contended that no one from public was taken for the search of the house of the appellant and that the contraband Charas was not recovered from the possession of the appellant. He also referred to the contradictions in the statements of the witnesses. The learned counsel for the appellant also argued that private witnesses were not attached to the prosecution, to the investigation and recovery although the scene of occurrence was within the Abadi.

3. The learned D.A.G. contended that the police witnesses were as good witnesses as the private persons, that it was never objected by the appellant that the samples were not kept in proper custody and the report of F.S.L., clearly showed that the seals of the samples were found intact when these were received in the laboratory, and the report of the laboratory was positive regarding Charas. As far the objection of the learned counsel for the appellant that the house in question was inhabited by other persons of the family of the appellant, the learned D.A.G. replied that there was no complaint against the father and brothers of the appellant and the police did not suspect them and has no evidence to connect them with the crime in question.

4. As far the availability of otherwise of Kulsoom lady constable, the learned D.A.-G. submitted that all the raids were conducted in the same sector and it was not necessary for the lady constable to remain at the scene of investigation of a case for the whole time as the recovery memo. and the Murasila could be recorded after raid and Kalsoom lady constable could be taken from one place to another place in the same sector for the purposes of different raids. The learned D.A.G. contended that the provisions of section 20 of C.N.S.A. were not mandatory in nature, were directory and should have been observed by the Investigating Officer, but for the urgency of the matter in question due to fear of removal of the contraband by the, appellant.

5. The only defence of the accused-appellant is that there were discrepancies in the case and that the contraband was not recovered from his personal possession, and that accused in other cases recorded on the same date have been released/acquitted. Obtaining a warrant or sending a report to the superior officers was the duty and responsibility of the police officer. But, the non-observance of the directions in section 20 C.N.S.A. was not fatal to the prosecution case although it made the Investigating Officer liable to disciplinary action against him under the Police Rules, after proper inquiry by his superior officers. As for the presence of Mst. Kulsoom at the time of raid, it was not found sufficient cause for acquittal of the accused-appellant because it was a mere irregularity. There is nothing on record to show that there were any complaints against the other inmates of the house, and the accused-appellant also did not name either his father or any of his brothers to be the owner in possession of the Charas in question.

6. We do not find any merit in the present appeal and we dismiss the same accordingly. H.B.T./142/P?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.