2021 P Cr (PLP)

TARIQ SALEEM SHEIKH, J.

This appeal is directed against judgment dated 29.08.2019 passed by the Additional Sessions Judge, Layyah, in case FIR No.442/2019 dated 05.06.2019 registered at Police Station City Layyah for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the "Act").

2. Brief facts of the case are that on 05.06.2019 Complainant Ahmad Khan/T-ASI (PW-1) was on patrol duty with other police officials, including Irshad Hussain 348/C (PW-3). At about 01:35 p.m. when they were at the Layyah Bus Stand near Siddique Park he received a source information that a drug paddler carrying a huge quantity of narcotics in a blue polythene bag was going towards Siddique Park and that he could be arrested if an immediate action was taken. The Complainant and his team mates got alerted and after a few moments they saw a person egressing from the bus stand who turned around on seeing them. This roused suspicion and the Complainant apprehended him with the help of his colleagues. On his personal search 1550 grams opium was recovered. The Complainant separated 78 grams from it and prepared a sealed sample parcel for chemical analysis. Then he secured the remaining substance through a separate sealed parcel and took both the parcels into his possession vide Recovery Memo Exh.PA. After that he drew complaint Exh.PB and sent it to the police station through Ghulam Abbas 784/C on which FIR No.442/2019 Exh.PD was registered. After completion of investigation report under section 173, Cr.P.C. was submitted.

3. On 08.07.2019, the Additional Sessions Judge framed charge against the Appellant to which he pleaded not guilty and claimed trial. On its conclusion, vide judgment dated 29.08.2019, he convicted him under section 9(c) of the Act and sentenced him to rigorous imprisonment for four years with fine of Rs.8000/- and in default thereof to undergo simple imprisonment for a further period of four months and fifteen days. Benefit of section 382-B, Cr.P.C. was extended to him. Hence, this appeal.

4. The learned counsel for the Appellant contended that the prosecution had failed to prove the charge against the Appellant. The Additional Sessions Judge had failed to appreciate the evidence properly which had caused serious miscarriage of justice. He argued that, firstly, Ahmad Khan/T-ASI (PW-1) was from the CIA staff and he had no authority to search the Appellant. The alleged recovery had no legal value which vitiated the trial. Secondly, the proceedings lacked credibility as no witness from the public was associated. Thirdly, the prosecution evidence was marred by material contradictions. Lastly, safe custody of the case property and due transmission of the sample parcel to the Punjab Forensic Science Agency (PFSA) was not proved. The learned counsel prayed that this appeal be accepted and the Appellant be acquitted.

5. On the other hand, the learned Additional Prosecutor General vehemently opposed this appeal. He contended that the prosecution had proved its case to the hilt. He argued that the prosecution case was supported by Ahmad Khan/T-ASI (PW-1) and Irshad Hussain 348/C (PW-3) in whose presence opium weighing 1550 grams was recovered from the Appellant. Their testimony was reinforced by the positive forensic report Exh.PE. He maintained that there were no contradictions in the prosecution evidence. It was trustworthy and could be relied upon. He prayed for dismissal of this appeal.

6. Arguments heard. Record perused.

7. The prosecution case is that on 05.06.2019 at about 01:35 p.m. the Appellant was nabbed from near Siddique Park in Layyah and 1550 grams opium was recovered from him. The Appellant counsel's foremost objection is that the Complainant and his team being CIA officials were not competent to make the arrest. We are afraid, the contention is misconceived. Section 54, Cr.P.C. provides:1

54. When police may arrest without warrant. (1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest: Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned.

8. Under the above-mentioned clause a police officer can arrest a person in the following four circumstances: a) The person is involved in a cognizable offence; b) There is a reasonable complaint that he is concerned in a cognizable offence; c) The police officer has received a credible information he is involved in a cognizable offence; and d) There is a reasonable suspicion that the said person is involved in a cognizable offence.

9. In Abdul Qayyum v. Station House Officer., Police Station Shalimar, Lahore (1993 PCr.LJ 91) this Court explained that "the expression 'credible information' is not a technical legal expression importing that the information must be given upon oath or affirmation. It includes any information which in the judgment of the officer to whom it is given appears entitled to credit in the particular instance and which he believes. The credible information mentioned therein need not be in writing." Abdul Qayyum's case was approvingly cited by the Hon'ble Supreme Court of Pakistan in Muhammad Zakaria v. The State (1999 SCMR 944).

10. It may be added that there is no legal provision which bars a police officer from being a Complainant if he is a witness of an offence. Reference in this respect may usefully be made to The State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408).

11. It is pertinent to note that Ahmad Khan/T-ASI (PW-1) did not take any further step in the matter after arresting the Appellant and sending complaint Exh. PB to the police station. He did not investigate the case because he knew he was not competent. It was Muhammad Akram/SI (PW-2) who conducted the investigation. It is by now well settled that trial is not vitiated even if the case is investigated by an officer who is not authorized by law provided that to the accused is not prejudiced. The court holds an accused guilty or otherwise on the basis of the evidence produced before it. Reliance is placed on Bashir's case, supra, and relevant excerpt is reproduced hereunder: "As regards the question as to whether the above illegality/irregularity if already committed by the CIA personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C. expressly provides that: 'no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate'. It is an admitted position that the CIA is part of the police force. It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. may not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C. but it does not mean that the CIA personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law."

12. In Fida Jan v. The State (2001 SCMR 36) the Hon'ble Supreme Court rejected the convict's objection to the raid by the CIA and dismissed his appeal holding as under: "Learned counsel Mr. Tahir Muhammad Khan also stressed that CIA authorities have no jurisdiction to conduct raid in his house for the purpose of recovery of narcotics. The argument has no force and it can be disposed of by making observation that in the instant case after effecting recovery of narcotics CIA itself has not further proceeded with the matter as the case was got registered by P.W. Shahban Ali, IP/CIA at Brewery Road Police Station. Therefore, if there was any discrepancy that stands rectified."

13. The prosecution examined Complainant Ahmad Khan/T-ASI (PW-1) and Irshad Hussain 348/C (PW-3) to prove the factum of recovery. They deposed in line with the complaint Exh.PB and the FIR Exh.PD and corroborated each other on all material points, including date, time place and the manner in which the recovery was effected. The Appellant could not impeach their credibility despite lengthy cross-examination. His contention that they could not be believed because no private witness was associated with the proceedings has no force for two reasons: firstly, it is now well settled that police witnesses are as good as any other witness unless it is proved that they had malice. The Appellant has not brought on record anything against the Complainant or his contingent. Secondly, section 25 of the Act excludes the application of section 103, Cr.P.C. to the cases under the Act. In Muhammad Hanif v. The State (2003 SCMR 1237) the Hon'ble Supreme Court held: "It is worth mentioning that raid was conducted as a result of tip-off by Said Khan (ASI/Complainant) when he was patrolling at the railway station and it was not possible for him to have completed the time consuming formalities at the cost of the disappearance of the petitioner. The contention concerning violation of section 103, Cr.P.C. seems to be fallacious when examined in the light of provisions as contained in section 29 of the Act which provides exclusion of section 103, Cr.P.C. Even otherwise the reluctance of general public to become witness in such like cases has by now become a judicially recognized fact and there is no option left but to consider the statement of an official witness as no legal bar has been imposed in this regard. If any authority is needed reference can be made to Hayat Bibi v. Muhammad Khan (1976 SCMR 128), Yaqoob Shah v. The State (PLD 1976 SC 53). The police officials are equally good witnesses and could be relied if their testimony remains unshattered during cross-examination. In this regard reference can be made to Muhammad Naeem v. State (1992 SCMR 1617), Muhammad v. State (PLD 1981 SC 635)." Further reference may be made to Naseer Ahmad v. The State (2004 SCMR 1361), Riaz Ahmad alias Raju v. The State (2004 SCMR 988), Aala Muhammad and another v. The State (2008 SCMR 649), Muhammad Khan v. The State (2008 SCMR 1616) and Zafar v. The State (2008 SCMR 1254).

14. However, conviction cannot be recorded against the Appellant on the basis of the testimony of the above-mentioned witnesses unless they are supported by positive report of the Government Analyst drawn in accordance with law. Besides, the prosecution must establish safe custody of case property and safe transmission of the sample parcels to the laboratory. Reliance is placed on The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Abdul Ghani and others v. The State and others (2019 SCMR 608), Kamran Shah and others v. The State and others (2019 SCMR 1217) and Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa (2019 SCMR 2004).

15. Ahmad Khan/ASI (PW-1) deposed that he weighed the recovered opium, segregated 78 grams from it and prepared a sample parcel for chemical analysis. Then he sealed the remaining opium (P-1) in another parcel at the spot in presence of Irshad Hussain 348/C (PW-3) and Sajid 692/C and secured both the parcels vide Recovery Memo Exh.PA. When the Investigating Officer, Muhammad Akram/SI (PW-2), reached the spot he handed over the case property and custody of the Appellant to him. On his return to police station the latter entrusted the case property to Moharrar Zafar Iqbal 71/HC (PW-5) for safe custody in the Malkhana. On 11.06.2019 the said Zafar Iqbal 71/HC handed over the sealed sample parcel to Complainant Ahmad Khan/T-ASI (PW-1) who delivered it at the PFSA the same day.

16. It would be seen that Zafar Iqbal 71/HC only stated that on 27.06.2019 he transmitted the parcel containing 1472 grams opium to the Saddar Malkhana but did not say who took it there. During the trial the courier was not produced. Further, the prosecution did not examine the Moharrar of Saddar Malkhana. There is also no evidence how the parcel in question was retrieved from there, brought to the court and got exhibited as P-1. The couriers and the Moharrar were material witness to establish that the case property was not tampered during the period it was with them. Reliance is placed on Faizan Ali v. The State (2019 SCMR 1649).

17. We have, however, noted that the prosecution has only proved safe custody and due transmission of the sample parcel to the office of PFSA. The chain of custody of the second parcel, i.e. the remaining case property (P-1), is broken. Moharrar Zafar Iqbal 71/HC (PW-5) deposed: "One sealed parcel containing 1472 grams opium was submitted in Malkhana Saddar on 27-06-2019 through road No. 1178/21 for its safe custody in my supervision."

18. In view of what has been discussed above, in our opinion, the Appellant can be convicted and sentenced only to the extent of the quantity of the sample parcel, i.e. 78 grams. Accordingly, we convert his conviction from sections 9(c) to 9(a) of the Act and, keeping in view the sentencing guidelines laid down by this Court in Ghulam Murtaza and another v. The State (PLD 2009 Lah. 362) and affirmed by the Hon'ble Supreme Court in Ameer Zeb v. The State (PLD 2012 SC 380), also reduce his sentence. He shall suffer simple imprisonment for eleven months with fine of Rs.4,000/- and in default thereof shall undergo simple imprisonment for a further period of two months and 15 days. However, benefit of section 382-B, Cr.P.C. shall be available to him.

19. Subject to the above modification, this appeal is dismissed. KMZ/A-22/L Appeal dismissed.