1986 P Cr (PLP)

Date of hearing: 26th March, 1986. This appeal is directed against the judgment, dated 6th February, 1986 of Additional Sessions Judge (Huddood) East, Karachi whereby he convicted the appellant Noorul Islam under article 4 of the Prohibition (Enforcement of Hadd) Order 1979 and sentenced him to suffer R.I. for two years, 15 strips and fire of Rs.15,060 in default of payment of fine he shall suffer R.I. for six months. Briefly stated the facts of the prosecution case are that on 11‑7‑1975, A.S.I. Muhammad Yousuf of Police Station, Gulberg Karachi, alongwith police constables Khursheed, Abdul Hamid and Lal Affsar was on petrol duty. He got spy information that one person is selling Heroin sit Bengali Para, behind Jhoppra Hotel Block V, Federal B. Area, Karachi. He went there and found appellant and on search 15 grams of Heroin was recovered. A.S.I. Muhammad Yousuf secured the material in presence of the Mashirs namely Khursheed Ahmed Ajmari and Anwar Hussain and prepared such Mashirnama Exh.6. He brought the appellant at police station and lodged F.I.R. Exh.7 an behalf of the State. He sent Heroin to the Chemical Examiner, Government of Sind, Karachi, the report Exh.8 is in positive. The appellant was challaned. Before the trial Court prosecution in support of the case examined Muhammad Yousuf, Head Constable, the then A.S.I. of P.S. Gulberg, Khursheed Ahmed Ajmari Mashir of recovery Exh.9 Khursheed Ali, Police Constable Exh.10 and Abdul Hamid, Police Constable Exh.11. Appellant in his statement under section 342, Cr.P.C. denied the allegation and stated that he is innocent and witnesses, have deposed against him as they are police witnesses. The statement of appellant on oath Exh.14 was also recorded. Muhammad Yousuf who was A.S.I. at the relevant time supported the case and stated that he found appellant smoking Heroin in presence of private witnesses Khursheed Ahmed Ajmari and Anwar Hussain and also secured 15 grams of Heroin contained in plastic bag from the right side of the pocket of the trouser of the appellant. He has produced Chemical Examiner's report Exh.8 which shows that material was powder of Heroin weighing 15 grams, P.W. Khursheed Ahmed Ajmari, has stated that he was made Mashir of arrest of appellant Noorul Islam and on his personal search Sobidar Yousuf secured a packet and told them that it was Heroin. He in .his cross‑examination stated that he was some time ago member of Qaumi Razakar force and used to perform duty with police at Gulberg Police Station. Police constables Khursheed Ali and Abdul Hamid also supported the version as given in the F.I.R. Appellant led no evidence in his defence. Mr. K. M. Nadim learned counsel appearing for the appellant raised the following contentions. (1) Police has no power to search a person of any public, man. (2) Local police cannot investigate the cases under Hudood Ordinance. (3). Witnesses are of not competent, therefore, their evidence cannot be believed as they have not fulfilled the requirements of Arts. 3 and 17 of Qanun‑e‑Shahadat; 1984. He has also argued that appellant was not given benefit of section 382‑B, Cr. P. C. He has referred to a case reported in A I R ,1942 All. 424, the point of search of a person. Mr. Makhdoom Abdul Wali, appearing for the State has supported the conviction and submitted that evidence of the witnesses was not challenged, therefore, prosecution has proved the case beyond any reasonable doubt. He submitted that police can investigate cases registered under 'prohibition of Hudood Ordinance. Appellant was found in possession of 15 grams of Heroin in odd‑hours of night near a hotel. The allegation against him that he was selling Heroin. There are as many 4 witnesses in whose presence the Heroin was secured from the appellant at a public place, therefore, requirements of section 4 of the Hadd Ordinance, 1979 have been fulfilled. The report of the Chemical Examiner is in positive. The appellant has not been able to prove any enmity with all these witnesses including Mashirs. No doubt 3 witnesses are police men and Khursheed Ahmad Ajmari, worked in Qaumi Razakar Force. The evidence of policeman cannot be discarded until and unless it is found that they have given evidence due to some mala fide. There are numerous authorities on this R point. However, I refer to 1976 S C M R 72; P L D 1981 S C 635; 1982 P Cr. L J 543 and 1982 P Cr. L J

399. Now, I come to next contention of 'the learned counsel about testimony of the witnesses. The competency of the witnesses was not challenged before‑ the trial Court and even in argument this' point appears to have not been taken. Not only this but no question has been put to the witnesses, about their testimony or previous character. Under Article 3 of the Qanun‑e‑Shahadat, 1984 a person shall not be competent to testify if the has been convicted by the Court for perjury or giving false evidence. The Court has to determine the competency of witnesses in accordance with the qualification 'prescribed by injunction of Islam as laid down in the Holy Qur'an and Sunnah. The Courts can examine this point and if come for the conclusion that witnesses are not competent he can discard their evidence. In cross‑examination no such question has been put about incompetency of these witnesses. In these circumstances I do not agree to Mr. K.M. Nadeem. I am of this view that witnesses are competent to give evidence 'and there is no legal flaw in their testimony. Mr. K. M. Nadeem has also argued that Investigation Officer cannot take search of a person. I also do not agree with him. On this I‑refer subsection (3) of section 102, Cr.P.C. which reads as under:‑ "(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched of such person is a woman, the direction of section 52 be observed." The upshot of the above discussion is that the case has been proved against the appellant, and he has rightly been convicted. The investigation bf police is not defective. The, appeal is dismissed. The benefit of section 382‑B, Cr.P.C. has not been given to the appellant. It is contended that appellant is in jail since his arrest and was nod admitted to bail at earlier stage. He shall be granted benefit of section 382‑8, Cr.P.C. and jail authorities to compute the period after necessary verifications. M. Y. H. ‑‑‑‑‑ Appeal dismissed: