1998 PLP 805 (MLD)

He has declined to be examined on oath under section 340 (2), Cr.P.C. In his defence he has examined one witness namely Amir Ahmed Moharrer of Police Station Sadar Bhakkar. In his examination-in-chief he has deposed that he has brought the record of Crime No. 168 of 1989 of his Police Station which is Exh. D.A. During cross he had admitted that he has not brought F.I.R. and that the F.I.R. Exh. D.A. was registered according to law.

3. I have heard the learned counsel for appellant and State. The learned counsel for appellant has contended that the story of prosecution in mechanical, fanciful and could not be believed; that the star witness A.S.I., Musarat Hussain Shah (P.W.5) is both the complainant and Investigating Officer and this position has vitiated the proceedings and in this respect reliance has been placed on 1991 MLD 443, 1995 MLD 1237, 1989 P Cr. L J 1334, PLD 1997 SC 408; that there is a conflict between the deposition of P.W.2 indicating that the recovery was made on 24-8-1994 and P.W.5 who is deposing that recovery of 18 grams of heroin was made on 21-8-1994; and P.W.5, the Investigating Officer, has admitted that he does not remember as to whether an entry in police register was made when the police party had proceeded for arresting the appellant in a case and this is an irregularity which cannot be brushed aside; that in case the Investigating Officer had gone to arrest the appellant under any case under section 13/20/65 of the Arms Ordinance there was no need of taking the weight kit; that the case is that of two versions, one that of occurrence on 21-8-1994 and another that of recovery on 24-8-1994, hence it is a case of doubtful nature; that an advance spy information was available with the police personnel and they could have arranged independent private persons as the witnesses of recovery yet it has not been done and in this context reliance has been placed on 1986 PSC 28, that the raiding party should have arranged a fake purchaser in the presence of the information of the sale of heroin yet it was not done and in this context reliance has been placed on 1992 P Cr. L J 1750; that an enmity with another police official is emerging from the evidence of the case per Exh. D.A. which is indicative of the direct enmity between Qamar Khichi and the appellant, yet it has not been considered and finally it has been contended that the appellant is not a previous convict and, therefore, it is a case of mitigating circumstances. The learned counsel for the State has contended that P.W.2 had joined the investigation on 24-8-1994 and was not a recovery witness on 21-8-1994 and therefore there is no discrepancy between the deposition of P.W.2 and P.W.5; that the kit of weight is usually a part of investigation/patrolling team and they normally keep it with them for use at the proper occasion; that the Investigating Officer and complainant can be the same person and the cases cited are distinguishable from the present case; that there is no violence of provision of section 103, Cr.P.C. as it is not applicable on the persons who are not in a place and in this context the reliance is placed on the majority view of the case cited as PLD 1996 SC 574; that the police is not in any way inimical to the appellant and in case many F.I.Rs. have cropped up at various police stations under different provisions of law it is due to appellant's own nature of being a habitual criminal and in this respect reliance is placed on 1997 P Cr. L J 1088 (FSC) and finally it has been contended that the Investigating Officer, P.W.5 has already explained that normally public do not co-operate with the police to become an independent witness and therefore the Investigating Officer was constrained to have kept police personnel as the witnesses of recovery and that officials of the police are as good witnesses as is the general public.

4. Since the learned counsel for appellant has mainly relied on the apparent discrepancy between the deposition of P.W.2 (constable Allah Nawaz) and P.W.5 (A.S.I. Musarat Hussain Shah), the Investigating Officer of the case, I propose first of all to deal with this contention. Allah Nawaz, P.W.2, has clearly mentioned that he was made to join investigation on 24th of August and that on that day the appellant, while being in police custody, had disclosed that he could lead to his partner Zaman alias Zama from that whom heroin could be recovered and in fact it appears that this recovery on 24-8-1994 was made from that person Zaman on the pointation of the present appellant and there is no nexus with the recovery of 18 grams of heroin on 21-8-1994 in the present case in which there are witnesses other than the P.W.2 and that recovery is the subject-matter of the present case. The recovery memo. Exh. P.A. is indicative that the witnesses of the recovery of 18 grams of heroin are Muhammad Tariq A. S. I., (P.W.1), Shaukat Ali and Musarat Hussain (P.W.5). Both the, recovery witnesses namely P.W.1 and P.W.5, have proved the recovery of 18 grams of heroin and this is that narcotic about which the report of the chemical examiner Exh. P.E. is also positive. Consequently, I am of the considered view that this contention of the counsel for the appellant is misconceived and, in fact, the recovery of 18 grams of heroin from the appellant has been proved beyond any reasonable doubts.

5. It has been contended that P.W.1 (Muhammad Tariq) has replied to a suggestion during cross that the police party started from police station at 12 hours during the day time, whereas P.W.5 (Musarat Hussain) has admitted that the police had reached Pull Sheikh Rao at 11-45 hours during the day and this is the conflict between the two witnesses. I do not find any force in this contention because it makes a difference of half an hour to 45 minutes as the police party had gone in a wagon end not on foot. This so-called contradiction is minor in nature and could not be considered substantial to set aside the story of prosecution. Even otherwise the witnesses are supposed neither to be parrot like nor to be identical cassettes of the tape-recorders in which the programmes are set and when the switch of the tape recorder is made on the cassettes start repeating the same words. It is an age-old principle of justice that such minor discrepancies which are not substantial in nature do inspire confidence in the witnesses and in case the witnesses go on repeating the same words they are considered to be the tutored ones. Consequently this contention is rejected outrightly.

6. The contention that same person is a complainant and Investigating Officer in the present case is an irregularity has been dealt with at length in a recent unreported case of a D. B. of this Court in Criminal Appeal No. 142/1 of 1996. (Re. Taga Khan etc. v. The State) at para. No. 5 of the judgment. The said para. is reproduced here. "At the outset, the first and foremost point which has agitated our mind is that in the presence of clear and binding rulings of the superior Courts of Pakistan as well as judicial principles accepted by the civilised world since times immemorial, it is totally unjust that same person becomes a complainant, Investigating Officer, is Station House Officer of the Police Station in which complaint is lodged as F.I.R., is the first informer and also holds powers of a criminal Court being a Naib-Tehsildar recording partly judicial confessional statements and remanding the appellants to himself. The age old principles and practices of the Courts given below are trampled in this case in maxims (1) a communi observantia non est recedendum (from common observance there shall be no departure), (2) Cursus curia est lex Curiae (the practice of the Court is the law of the Court), (3) nemo debet esse index in Qrooria causa sua (None should be a Judge in his own cause) (a maxim which is philosophical background of section 556, Cr.P.C. which reads:-- 'Case in which Judge or Magistrate is personally interested.--No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself. " (4) nemo doubus utatur officiis (No one should hold two offices), (5) nemo jus sibi dicere potest (no one can declare the law for himself), (6) nemo notest idii potestam sibi vel cuius alterius coercitionis ad alium trasferre (No one, to whom is delegated a power of coercion can himself transfer it to another), (7) nemo sibi esse judex vel suis jus dicere debet (no one ought to be his own judge or the tribunal in his own affairs. What has happened is that Riaz Ahmed (P.W.10) is addressing himself as JANAB-E-AALI in his murasila/complaint dated 4-8-1994 (Exh. P.O.) to which he himself gives capition as IBTADAI ITTALAI REPORT or F.I.R. giving information about the incident. As admitted by him is his deposition he was Naib-Tehsildar, Kingri on the same date was also S.H.O. of Police Station Levies, Kingri. His original complaint addressed to himself being S.H.O. and captioned as F.I.R. does not indicate the name of the first informer, but during examination-in-Chief he has disclosed that first informer was Jamadar Levies Rarasham who came to him at 7 a.m. on 4-8-1994 and told him about the decoity at Saratay. Neither this first informer was examined, nor his name appears in the calendar of witnesses in the challan. The challan was finalised by the same complainant/Naib-Tehsildar as Investigating Officer and S.H.O. of Police Station Levies, Rarasham, but mysteriously in column No. 1 of the challan one Wadera Asad Khan son of Wadera Hasan Khan Jahanani Khetran of District Barkhan is appearing as first informer and complainant. But again he was neither examined nor included in the calendar of witnesses. Throughout the evidence in the Court, only once Wadera Asad comes into picture and immediately fades away when during cross to counsel for appellant Shah Gul, to a suggestion Riaz Ahmed (P.W.10) has denied the company of Wadera Asad and Wadera Gulzar from the beginning till end of investigation and that appellant Shah Gul was arrested on their instance. This Asad Khan son of Hasan Khan is now petitioner in Criminal Revision Petition No. 38/I of 1996 dated 8-8-1996 in which he has not disclosed his relationship with deceased, but has prayed for enhancement of sentence to death. It appears that he has not signed this petition and signatures are that of his counsel Muhammad Munir Peracha. No affidavit is attached with the petition. To our surprise, there is one another person Karam Khan son of Murad Khan by caste Khetran of District Barkhan who claims in para. No. 1 of his application dated 13-10-1996 that he is the petitioner in application 38 (i.e. Criminal Revision 38/1 of 1996) and that he had the people of the area investigated and with much difficulty got arrested the accused/ appellants. In para. No. 3 of this application Karam is disclosing.-- There is one application dated 18-9-1994 available in the police file and has not been exhibited at all. It is addressed to Assistant Commissioner, Moosa Khel and is in the nature of a direct complaint under section 200, Cr.P.C. The complainant is Wadera Asad Khan son of Hasan Khan and is indicating that deceased was a paternal cousin of the complainant. In this complaint he named appellants Nos. l to 6 as the respondents/ accused and is silent about appellant No. 7 i.e. Syed Essa Shah. This complaint has been disposed of by the Magistrate (A.C. Moosa Khel) in violation of the mandatory provisions of Chapter XVI of Cr.P.C. It has simply been forwarded to Naib-Tehsildar Kingri (i.e. P.W.10) with directions on 18-9-1994. On the same date there is another order in different writing and appears to be that of Riaz Ahmed (P.W.10) himself but in his capacity as a Magistrate. The order reads: That is also the reason, prima facie, that in challan dated 27-9-1994 Asad Khan has been shown in column No. 1 as first informer and complainant. It appears that remand of appellant Wazir from 15-9-1994 to 18-9-1994 was given by this complainant cum-Investigation Officer while officiating as a Magistrate. All this illegality has clearly vitiated the proceedings as the Investigating Officer Riaz Ahmed has worked out of jurisdiction, and all his actions are found to be corum non judice. Such officers create a mockery of law. In this context clear rulings are available, inter alias cited as 1989 P Cr. L J 601, 1995 MLD 1532 This irregularity is not cureable as it is a view held since times immemorial that any act out of jurisdiction is void and a nullity in the eyes of law. Now it can well be seen that all proceedings get vitiated for being void upon a complainant-cum-Investigating officer who also act or pose to act as a Magistrate in the same case which act in itself is either coram non judice or calls for a writ of quo warranto. Section 556, Cr.P.C. is clear on this point. In the present case the complainant-cum-Investigating Officer (P. W.5) has neither acted as a criminal Court nor has posed as such. Hence, the proceedings cannot be termed as void. So far as the maxim nemo duobts utatur officiis (No one should hold two offices) is concerned, in the present case Musarat Hussain Shah C (P. W.5) has held one office of Investigating Officer. Complainant is State as an abstract idea and he only represents it as a concrete living rational object. As such, in my humble opinion, it is no office. Other maxims quoted in the abovementioned unreported judgment are not applicable. Consequently, this contention fails in the circumstances of the present case.

7. All other contentions regarding section 103, Cr.P.C. or admission of P. W.5 that he does not remember whether entry was made to police diary or not whereas other P. Ws. have admitted such entries are misconceived. Appellant was found on the road selling heroin and his personal search resulted into the D recovery of 18 grams of the said intoxicant and, therefore no violation of section 103, Cr.P.C. has taken place.

8. I do not find any mitigating circumstances as the appellant has already been awarded with lesser punishment. Consequently the impugned judgment is upheld. Appeal fails. Benefit of section 382-B. Cr.P.C. is extended to the appellant. Appeal dismissed. H. B. T./1172/FSC Appeal dismissed.