1999 PLP 2508 (MLD)

Hussain Aziz Bhatti, Asst. A.-G. for the State. Date of hearing: 18th December, 1997. This appeal is directed against the judgment, dated 14-5-1996 by Judicial Magistrate Section 30, Lahore whereby the learned Magistrate had convicted the appellants under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced each of them to undergo R.I. for three years. In addition Zahid Mahmood was also sentenced to pay a fine of Rs.3,000 while Mst. Shahzadi was sentenced to pay a fine of Rs.2,

000. In default each of them was ordered to suffer one month's S.I.

2. In this case, raid was committed by Muhammad Anwar, A.S.I., C.I.A. Staff Cantt. He had been told by one Mst. Nargus, who was in his custody under arrest, in case F.I.R. No.200 of 1992 under Article 3/4 of the Prohibition Order Police Station Ghazi Abad, that she had purchased heroin from Zahid Mahmood and Mst. Shahzadi, who are narcotics dealers. She had offered that she could lead to their house and get them arrested. The A.S.I. alongwith the other members of the raiding party had gone to the house of Zahid Mahmood. On the pointing out by Mst. Nargus, he had entered the house of Zahid Mahmood. On seeing police party, Zahid Mahmood had run away throwing a packet containing 50 grams of heroin. Mst. Shahzadi who was present there was caught. On search she was found in possession of 35 grams of heroin. A weighing scale and some weight measures were also recovered from Mst. Shahzadi. 11 grams were removed from the packet which Zahid had thrown away and same quantity was removed from the heroin recovered from Mst. Shahzadi for transmission to the office of the Chemical Examiner for chemical analysis. Zahid Mahmood was also arrested later. After completion of necessary investigation Muhammad Anwar A.S.I. had got the challan submitted through S.H.O. Mughalpura.

3. F.I.R. Exh.PB/1 was registered at the police station on the same day on receipt of complaint Exh.PB drafted by Muhammad Anwar A.S.I. on the same day at the spot.

4. Statements of four P.Ws. were recorded at the trial Muhammad Anwar, A.S.I., P.W.1, Muhammad Arshad, P.W.2 and, Mst. Sughran Begum lady constable, P.W.3, corroborated each other by stating that a raid had been committed at the house of the appellants on pointing-out by Mst. Nargus and the 50 grams of heroin found in parcel thrown by Zahid Mahmood while running away was taken into possession 35 grams of heroin found in possession of Mst. Shahzadi was also taken into possession. None of them was cross-examined. It is noted beneath the statements of the each witness that counsel of the accused is not present. Positive report from the office of the Chemical Examiner about recovered material being heroin was also tendered in evidence.

5. Learned counsel for the appellants without going into the merits of the evidence took up a legal objection. In that he referred to PLD 1997 Supreme Court 408, State through Advocate-General, Sindh v. Bashir and others, respondents, in support of the contention that an officer of the C.I.A. of his own cannot taken up the investigation and proceed with that. Learned counsel submitted that as per dictum of the cited judgment, C.I.A. officers can investigate a case either with permission from the competent Authority or on the entrustment of the investigation to them by a competent Authority. Mr. Hussain Aziz Bhatti, Assistant Advocate-General who was present in the Court in connection with some other case was asked to assist. Learned Assistant Advocate-General did not challenge the contentions of learned counsel for appellants in view of the cited judgment.

6. It does not appear from anything on the record that Muhammad Anwar A.S.I., who had effected recoveries, had sought or been granted permission to investigate the case, nor is there any order by any competent Authority that Muhammad Anwar A.S.I. is entrusted the investigation of the case. That being so the conviction of the appellants cannot be maintained. Without going into the merits of the case but following the Supreme Court's judgment the conviction and sentences of the appellants are set aside.

7. Notwithstanding the fact that the conviction and sentences of the appellants have set aside, the State Authority i.e. competent Police Officer will be at liberty to get this case investigated in accordance with law and submit fresh E~ challan for trial on the basis of the facts and evidence of recovery of heroin from the appellants. Assistant Advocate-General has been asked to get a copy of this judgment and inform the concerned police authorities. N.H.Q./15/FSC Conviction set aside.