2007 PLP 2341 (YLR)

TARIQ PARVEZ KHAN, C.J.

Shortly stated facts are that appellant Muhammad Yousaf and his absconding co-accused Khalil Khan and Shahid are said to have been found trafficking 35 kg. Charas and 700 grams of heroin while travelling in a Motor Car No.D-6739 Peshawar.

2. According to the case of prosecution it was on 26-7-2005 at 3-30 p.m. when Shahid Khan Inspector C.I.A. (P.W.2) has received prior information about the smuggling of narcotics through Suzuki motor car mentioned above. He, therefore, along with Muhammad Aleem S.-I. held a road check at Khyber Road Peshawar. The car in question came from University side, it was signaled to stop but, the vehicle was speeded away. It was chased and was overtaken near Army Stadium Peshawar.. There were three persons occupying the vehicle, of them two escaped where as the present appellant was arrested on the spot. Samples were taken out from the recovered narcotics, sent to the chemical laboratory through application Exh.PK and the report was received in positive and is Exh.PK/l.

3. To prove the charge of recovery of narcotics two witnesses namely Shahid Khan (P.W.2) and Muhammad Aleem S.-I. (P.W.3) were examined. Former is the complainant and Investigating Officer while the latter_ one is witness to the recovery memo., arrest etc.

4. On the close of evidence of the prosecution, accused was examined under section 342, Cr.P.C. He pleaded innocence and volunteered to produce defence.

5. He appeared as his own witness under section 340(2), Cr.P.C. and has also produced Said Habib (D. W.1), a person running the business of "Rent A Car" and Khadam Hussain (D.W.2) working as agent in Excise and Taxation Department at Shami Road, Peshawar. Appellant was found guilty of the offence and vide judgment dated 10-6-2006 of Additional Sessions Judge-VII/Judge, Special Court, Peshawar was convicted under section 9(c), C.N.S.A. and sentenced to life imprisonment with a fine of Rs.50,000, in default six months' S.I. with benefit of section 382-B, Cr.P.C.

6. Learned counsel for the appellant has challenged the conviction and sentence on legal and factual grounds. His first submission is that the arrest and investigation was carried out by C.I.A. A staff who was not authorized to conduct investigation, therefore, the very foundation of the case is illegal and the subsequent proceedings including the conviction and sentence would be void. His next contention is that the appellant produced cogent defence evidence which proves that appellant was not involved in the drug trafficking but has been made a scapegoat and the real culprits who were occupying the vehicle were either let off or succeeded to escape.

7. His contention is that even if case of the. prosecution is accepted to be proved against the appellant and the defence version is excluded from consideration, as per admission- of the Investigating Officer P.W.2 only, then as per record only grain of heroin was sent for chemical analysis and 35 samples of 5 grains each out of the Charas, therefore, the quantity proved to be Charas would not fall within the ambit of section 9(c) of the C.N.S.A. His contention is that the sentence awarded to the appellant is therefore, harsh.

8. Learned Advocate General appearing for the State, however, opposed the contentions and states that on merits case has been proved against the appellant. He has been apprehended on the spot and defence put forth by him is oral and is an afterthought. His contention is that mere unauthorized investigation would not vitiate the trial. He is rather of the view that in view of law as it stands update, any officer of the Police Department not below the rank of Sub-Inspector can investigate.

9. First to meet the legal objection. Notification S.R.O. 597(I)/97 dated 7-7-1997 was issued by the Federal Govermnent while exercising powers under subsection (1) of section 21 of the Control of Narcotic Substances Act, 1997, authorizing officers not below the rank of Sub-Inspector or equivalent of Anti-Narcotic Force, Provincial . Excise and Police Department, Inspector or equivalent of the Customs Department and Subedar in the Frontier Corp in the Provinces of Balochistan and N.-W.F,P. to exercise the powers and perform functions under the above referred section and sections 22, 23, 37(2) and 38 of the said Act within the area of their respective jurisdiction. S.R.O.No.600(I)/97, dated 7-7-1997 was issued by the Federal Government where all the officers mentioned in S.R.O. No.597 (I)/97 but without reference to "Police Department". They were vested with the powers and an officer-in-incharge of a police station for the investigation of offences under the Act ibid.

10. However, through S.R.O. 656(I) 2004 dated 2-8-2004 and supersession of S.R.O. 1134 (I)/97 of 7-7-1997 beside officers mentioned in the earlier notifications, Sub-Inspector or equivalent of Pakistan Rangers (Sindh), Inspector or equivalent of Pakistan Rangers (Punjab), Naib Subedar or equivalent of Pakistan . Coast Guards and the officers of Maritime Security Agency not below the rank of Chief Petty Officers were also authorized to exercise the powers and perform the functions within their respective jurisdiction under subsection (1) of section 21 and sections 22, 23, 37(2) and 38 of the Act ibid.

11. A bare reading of all these S.R.Os. would show that from the Police Department all officers not below the rank of Sub-Inspector are vested with the powers under sections 21(1), 22, 23, 37(2) and 38 of the Act ibid. Thus we are clear that officers as given in S.R.O. of 2004 are competent to investigate the narcotics offences within their respective areas.

12. Since in the previous S.R.Os. and the one enforced today, officers of the Police Department have been vested with the powers of investigation provided they are not below the rank of Sub-Inspector, the C.I.A. Police is the force of the Police Department; therefore, they arc competent under the law, to investigate.

13. Now we will take up the updatecase-law on the issue. The latter would be case of "Muhammad Younas and others v. Mst. Parveen alias Mano and others" reported in (2007 SCMR 393). In the cited case the arrest and seizure of the narcotics were made in violation of sections 21 and 22 of the Act ibid but it was ruled by the apex Court that guilt or innocence of an accused would not depend on question of competence or otherwise of the Police Officer to investigate offence and the trial would not vitiate merely for the reason that the case is investigated by an officer not authorized to do so.

14. In case of "Muhammad Hanif v. The State" reported in (2003 SCMR 1237) where investigation was carried out by an A.S.-I. who was made incharge of the police station and was available, raid conducted and investigation made by such officer though was in violation of provisions of sections 21 and 22 of the Act but was ruled would not vitiate the trial and at best such an irregularity would be curable under section 537 of the Cr.P.C. 14-A. The apex Court in case of "Fida Jan v. the State" reported in (2001 SCMR 36) held that non-compliance of section 20 of the Act, ibid is directory in nature .and could not be considered a strong ground to hold that the trial of the accused was bad in the eye of law.

15. Leave was refused in case of "Kausar Irshad v. the State" reported in (1998 SCMR 1184) where it was held that recovery of heroin effected by C.I.A. personnel in the case might be an irregularity but the same would not vitiate the trial.

16. In case of "Muhammad Afzal v. The State" reported in (PLD 2000 SC 816) where investigation was conducted by the C.I.A. in a case under the West Pakistan Arms Ordinance, 1965 and the validity was challenged, acquittal was recorded not on the basis of irregularity in the investigation but on merits and reference was made to a Full Bench judgment of the apex Court reported as "State through Advocate General Sindh v. Bashir and others" (PLD 1997 SC 408), it was observed by the apex Court as under:--??????? ? "The above submission seems to be fallacious. Any alleged illegal practice cannot negate an express provision of a statute. It is unfortunate that a Government functionary which is entrusted with the enforcement of law should be guilty of breach of a provision of law. It is high time that efforts should be made to establish the supremacy of law instead of relying upon an illegal practice.

18. As regards the question, as to whether the above illegality/ irregularity if already committed by the C.I.A. 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 C.I.A. 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 C.I.A. 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".

17. However, on this score alone the acquittal was not recorded and C.I.A. personnel were directed that in future they shall not violate the provisions of the Cr.P.C.

18. Even otherwise, section 156(2) of the Cr.P.C. gives protection. to the investigation conducted by an officer not empowered to investigate.

19. It is, therefore, ruled that on the strength of statute whereunder the Federal Govermnent has issued S.R.Os. read with the law laid down by the apex Court, the arrest and investigation conducted by C.I.A. staff who are part of the Police Department would not vitiate the trial if on F the basis of cogent evidence it has been proved by the prosecution that narcotics were found in possession of or under the control of an accused person and such accused person cannot claim that because of the deficiencies or incompetent investigation he is entitled to acquittal.

20. We are conscious of the fact that where an accused person, by investigation conducted by a wrong Investigating Agency, is prejudiced in his defence that might be taken as one of the ground amongst others while recording final judgment but this by itself cannot be a ground for holding that accused is entitled to acquittal. In this case accused has not alleged in his 342, Cr.P.C. statement, though given in very details that he has been prejudiced C because of the investigation conducted by C.I.A. Police.

21. The defence evidence led by the accused in this case is the statement of D.W.i who runs "Rent A Car" business and an agent of the Excise and Taxation Department as D.W.2 who works as an agent like Clearing Agent in Customs eases, to facilitate the presentation of documents for the registration of the vehicles. Both these witnesses cannot be believed as they have belatedly stated and such-like oral evidence is easy to procure at any stage of the investigation and at the trial. In our view the prosecution has proved to the hilt the charge of possession and control over the narcotics recovered.

22. Since the accused has not admitted his presence with the motor car nor the possession of the narcotics, he cannot argue that to the extent of samples sent the recovery shall be accepted and not beyond that. Even otherwise it has come in evidence that much has gone unchallenged i.e. the samples were taken from' the packets recovered; sent to the Chemicil Examiner and the samples sent under an application Exh.PK carries the F.I.R. number of the ease in question. Thus the nexus of the samples with the case F.I.R. and the case property has been made out.

23. For reasons stated above, we do not find any merit in this appeal and it is accordingly dismissed. H.B.T./134/P?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.