1998 PLP 713 (MLD)

(1) Application of P.W. Pir Sultan son of Khyber Shah dated 10-9-1995:-- "Applicant present, arrest is cancelled. He should appear on date fixed. " These applications and orders thereof should have been included in the paper book in view of the fact that these are indicative of the delaying tactics employed by Muhammad Riaz (P. W.5) Investigation Officer of the case and the order sheet entries of the trial Court are clearly showing that the P. Ws. belonging to police were not attending mostly. Consequently the star witnesses got harassed and must have shown signs of getting disinterested. This is clear from the following remarks used by the trial Court in order sheet entry dated 15-11-1995. 15-11-1995. State present. P. W. Muhammad Riaz, Inspector sent an application for adjournment due to his illness. Fresh summon be issued with the direction that the case is being delayed unnecessary due to non-?attendance of the said P.W., hence he is directed to attend Court positively. Earlier to this order-sheet entry if all the orders on order-sheet are carefully studied, the panorama which emerges is that of Investigation Officer's indifference towards proceedings in the trial Court, his lame excuses of non-?attendance which finally resulted into losing star witnesses. Even in this Court his conduct has been such that on 12-6-1997 the Court was compelled to make following remarks:-- "The Investigation Officer of this case Mr. Muhammad Riaz was partly examined on 29-5-1997. He had requested for time to produce the police record. With consent the case was fixed for 2nd week of June, 1997. Today Police Head Constable Amir Muhammad of Police Station, Charsadda has arrived and filed an application from the Investigation Officer Muhammad Riaz requesting for adjournment as he is ailing. Doctor's certificate is also attached. This case is taking unnecessary time and needs decision as soon as possible. The case may be fixed on 16th June, 1997." It has been noticed that the decision of cases in the Courts is taking longer, time due to the non-cooperative irresponsible conduct of either side or both. This conduct is resulting into the destruction of State cases on the one hand, giving free hand to the criminals on the other and also bringing the Courts into hatred, ridicule or contempt within the meaning of Article 204(2)(b) read with Article 203-E (3) of the Constitution of Pakistan. This irresponsible conduct also tends to bring the authority of a Court or administration of law into disrespect or disrepute and also obstructs due course of any judicial proceedings within the meaning of section 3 of the Contempt of Court Act, 1976. In the present case the conduct of Muhammad Riaz (P.W.5) Investigation Officer has on the one hand harassed the star and the only independent witnesses to an extent that the State lost them and on the other has occasioned an undue delay in deciding the case both at the trial and the appellate stages and therefore has created for the Courts hatred and ridicule in the eyes of public. Consequently a show-cause notice may be issued to him as to why he should not be tried under the relevant provisions of law of the Contempt of the Courts. The reply may be received within two weeks from the receipt of S.C.N. or otherwise proceedings shall be initiated in absentia. A copy of this notice may be sent to the learned Advocate-General, N. W. F. P.

6. The contention of substitution is clearly misconceived. Although it has been admitted by Muhammad Riaz (P.W.5) that he had noted a person decamping from the bus, but it does not absolve the appellant from being devoid of mens rea. As discussed earlier, he has admitted his knowledge of the existence of heroin in the jericanes belonging to one Nawshad who was travelling with him from Village Usheri, Dir (N. W. F. P.) to Moro (Sindh). The appellant may or may not be the owner of the intoxicants in the jericanes, yet his guilt is proved due to his being a co-transporter and accomplice of Naushad admittedly. Although the word accomplice has not been defined in the said Ordinance, yet sections 34 and 35 of the Pakistan Penal Code, 1860 are applicable on the present case by virtue of Article 26 of the said Ordinance. The two sections of P.P.C. read:-- Section 34: Acts done by several persons in furtherance of common intention, When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. Section 35: When such an act is criminal by, reason of its being done with a criminal knowledge or intention.--Whenever an act, which is criminal only by reason of its being with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same, manner as if the act were done by him alone with that knowledge or intention. Since criminal knowledge of appellant about the existence of heroin in huge quantity in the jericanes and intention of transporting the same from p N. W. F. P. to Sindh is admittedly established, the appellant is liable for the offence under article 3 of the said offence in the same manner as if the act was done alone by him.

7. Now comes another aspect of the picture which needs discussion for proper and safe administration of the institutions of justice. Muhammad Riaz (P.W.5) Investigation Officer has admitted that he had noted a person decamping from the bus, but did not order his subordinates to arrest him. He has also admitted that he does not know if the jericanes were lying on the top of the bus or inside the bus. During additional evidence under section 428, Cr.P.C. conducted on 29-5-1997, he replied to a Court question "I do not remember whether I tried to arrest co-accused Naushad resident of Usheri, District Dir from Moro Sugar Mills, District Nowshero Feroze, Sindh. It must be in the police record whether any efforts of arrest of Naushad were made from Dir. This way may efforts to arrest one Meerzai, resident of Bajur Agency must be in the police record which I have not brought today". He has clearly tried to hoodwink this Court on the point of his efforts to arrest Nawshad from Sindh as is transpiring from his subsequent additional evidence on oath on 16-6-1997. He is deposing:" He (Naushad) was found that he had gone to Sindh. I did not proceed to Sindh for his arrest". In fact entire record placed before this Court is silent about any efforts made to arrest Naushad from Sindh about whom this very Investigation Officer has admitted in the final sentence of his additional evidence that his history sheet at Police Station Dir proves that he is involved in other criminal cases and is declared P.O. Police Record and its Zimnis are repeatedly referring to this culprit Naushad and the appellant to be the members of some influential intra-provincial group of the smugglers and transporters of narcotics. In view of this position Muhammad Riaz (P.W.5) who holds the rank of Inspector of Police and is S.H.O. of an important police station has shown signs of irresponsible behaviour while seeing a person escaping from the bus under raid but not ordering his personnel to arrest him, an inefficient and indifferent attitude towards such an important fact of the recovery of, as alleged by him, 30.750 Kgs of crystalline and liquefied heroin but not knowing as to whether it came from the roof of the bus or from inside. He has indicated a habit of telling lies in the Court under oath while deposing that he remembered not as to whether he tried to arrest Naushad from Sindh or not whereas he was sure in his mind that he had done nothing in this regard. Then his attitude of permitting the bus to leave immediately without having recorded statements under section 161, Cr.P.C. of at least the driver and conductor is highly objectionable. He made them star witnesses and recorded statements subsequently on 4-10-1994 i.e. six days after the incident and then at the stage of trial lost them due to his own indifference towards the calls of the Courts. The recording of the statements under section 161, Cr.P.C. of those of the only two independent star witnesses as they appear from the record must have taken maximum 15 minutes. He could have easily made the bus waiting for 15 minutes to ensure safer dispensation of justice. All this was not done. No serious efforts are visible from the records to arrest Naushad even from Usheri, Police Station Gandigar, Dir. All this calls for administrative actions. The learned Home Secretary, Government of N. W. F. P. is hereby directed to conduct enquiry in this regard and take necessary legal actions against the delinquent officer of police and his associates during investigation of the present case who have shown slackness and laxity in discharge of their mandatory duties. A copy of this judgment may be sent to the said learned Home Secretary.

8. The learned counsel for appellant has heavily relied upon a ruling of the apex Court at placentium A cited as 1992 SCMR 1134. It reads:-- "We have considered the defence taken up by the appellant in the light of the prosecution evidence and we find that the learned Appellate Court did not pay any attention to the defence taken up by the appellant. In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution. The case set up by the appellant has certainly created doubt in our mind about the truthfulness of the case of the prosecution. The explanation given by the appellant is quite plausible and the possibility cannot be ruled out that the heroin was owned by the passengers who ran away from the spot." In the case before my lords of the Shariat Appellate Bench of the Supreme Court of Pakistan, eight bags of heroin containing eight Kgs were recovered from Suzuki No. PRM-6088 which was intercepted by a patrol party of police at Swabi Jahangtra Road. It appears that many passengers had run away from the said Suzuki. Only driver of the said Suzuki Niamat Khan and one Wazir Muhammad sitting by the side of the said driver on the front seat were tried and convicted under the said ordinance. It appears, prima facie, that the two convicted persons had not indicated any knowledge about the real owner/owners of the incriminating intoxicant from amongst those who had run away from the spot. As discussed above, the case of the appellant in the present case is totally different and distinguishable from the cited case. Here appellant himself has taken a firm stand that the jericanes containing heroin were owned by the only decamping Naushad whose start of journey was the same village Usheri District Dir and the destination of both was the same place namely Moro Sugar Mills, District Nausharo Feroze (Sindh). Again, as proved above, the modes of somersaults taken by the appellant himself do prove beyond the reasonable doubt that he is involved in the transportation of 20.500 Kgs of di acetyle morphine in crystalline form as proved by the Report of Chemical Examiner (Exh. P. W.5/3). This contention, therefore, is repelled.

9. Appellant's counsel has relied on a ruling of a Single Bench of this Court cited as 1993 P Cr. L J 1953. Relevant ruling at plancentium A reads:-- "The peculiar circumstances of the case are that the witnesses produced by the prosecution are not clear as to where the contraband material remained from 28-8-1990 to 9-9-1990. I have gone through the five witnesses of the prosecution. They are silent in respect of the same. The entire material has been sent but only the sample, hence the unexplained delay in sending the material to expert cast a doubt in my mind. The learned State Counsel has candidly conceded that the Chemical Examiner's Report cannot be relied upon. In such view of the fact I am inclined to accept the appeal, set aside the conviction and sentences of the appellant recorded by the learned trial Magistrate on 1-11-1992 and acquit the appellant of the charge. He be set at liberty forthwith if not required in any other case. The appeal is disposed of accordingly." The cited ruling is again distinguishable from the present case inasmuch as that in the present case, only samples were sent to the chemical examiner and not the entire material. Although there is a delay of five days in the despatch of the samples, yet it stands proved that the samples were received by the laboratories intact and the remaining material was kept in safe custody with the Moharrir who was also custodian of the sealed samples for five days and up to the despatch through Constable No. FC/38 as is indicated by the Report of Chemical Examiner (Exh. P. W.5/3). In the present case, the learned State Counsel has not conceded that the Chemical Examiner's Report cannot be relied upon.

10. Reliance has also been placed on a Single Bench judgment of this Court cited as 1993 P Cr. L J

217. Relevant rulings in the said judgment read:-- "I do not dispute the proposition that the police officials are as good witnesses as others but when prosecution case entirely rests upon them, their testimony should be scrutinized with utmost care and caution; and if there in any discrepancy in evidence which creates doubt regarding their truthfulness, their evidence alone would not justify the conviction of the accused. In view of contradictions and other defects pointed out by me coupled with failure of the police officials to associate any member of the public with them in the matter of launching a criminal case against the appellant and delay in the despatch of the sample. I believe that the prosecution has failed to establish the guilt of the appellant beyond the shadow of reasonable doubt. He, therefore, deserves to be acquitted. " Again, the learned counsel for appellant has cited the abovementioned ruling under misconception as in the present case, the recovery is not at all disputed. It was a bus full of passengers and it is always very difficult for Police to produce witnesses from amongst the passengers every one of whom is in a hurry to reach the destination. The coercion in such circumstances sometimes creates law and order situation for the raiding party which usually consists of few personnel of police, whereas the bus is full of passengers including womenfolk and children. The case before me is not of that type on which can be applied the cited ruling. So far as the point of delay in despatch of samples is concerned, it can only be agitated when it prejudices the case of the appellant. In the present case, the appellant himself is admitting that the recovered articles do contain heroin. I do not understand then as to in what manner delayed despatch of the samples has prejudiced the defence of the appellant. In this context learned counsel for State has correctly relied upon a Single Bench judgment of this Court cited as 1995 P Cr. L J 1272. Relevant ruling is quoted verbatim:-- "Article 4--Appreciation of evidence--Recovery of 30 grams of heroin from the possession of accused stood proved--Although sample was received in Chemical Examiner's Office with a delay of about three weeks, yet the same had not been tampered with because signatures of the attesting witnesses and the seal of the Investigation Officer on it were found intact--Police or Excise and Taxation officials were competent witnesses of the recovery--Conviction and sentence of accused were upheld in circumstances. "

11. Finally then comes the contention that mitigating circumstances exist in favour of reducing the quantum of sentence. The appellant has surpassed the age of 66 or may be 67 years. The record indicates that the absconding accused Naushad was the real owner of the recovered huge quantity of heroin and he is also wanted in many, other criminal cases at Police Station Dir. It appears that the knowledge of the transportation of the incriminating material and may be some greediness of earning a little bit of Kharchi (pocket money) made the appellant silent and made him a co-traveller with a co-villager. Be it as it may, but had the appellant, being a Muslim, been fearful of Allah and not that from a ferocious co-villager Naushad, he would have acted in accordance with clear injunctions of Islam but he refrained to do so. Had the appellant given the evidence based on truthfulness and honesty, he could have created mitigating circumstances for him. But he took the other path of falsity and darkness (ZULMAT). At every stage, the appellant made efforts through his somersaults to mislead the investigation and hoodwink the trial and the Appellate Courts. For six days in Police custody, he was not admitting even the knowledge about the incriminating material. Then he tried to mislead the investigation through his voluntary judicial confession stating that he was informed by Naushad that the jericanes contained illegal arms to be sold in Sindh and had the source in one Mearzai of Bajour Agency. Even that knowledge, if the appellant is truthful, was creating a mandatory duty upon him under the law of the land to inform law enforcing agencies but he cared not to do it. Later, at the bail stage he took up the stand that the jericane containing lime water belonged to him and, in fact, he was taking it as a mineral water from the springs of his village for his personal use. Finding this tactic ineffective, he took a full-fledged somersault and in his statement under section 342, Cr.P.C. he denied connection with anyone out of three jericanes and tried to shift the entire liability on the shoulders of Naushad. Now he is praying for some relief. Law helps those who help the law. Those who do not come to law with clean hands lose their rights on the law. Age factor or may be factor of poverty or may be the factor of non-arrest of the main culprit Naushad due to negligence, inefficiency or may be dishonesty on the part of the raiding party could have generated mitigating circumstances, but the conduct of the appellant himself has led me to the conclusion that already the appellant has been sentenced with lesser punishment of eight years' R.I. whereas the maximum is life imprisonment.

12. The upshot of the discussion is that the impugned judgment is upheld. The appeal is dismissed. Office is directed to keep attested copies of the non?-exhibited documents discussed in this judgment as a part of the paper book and then return the records to the trial Court after the lapse of the period of petition for leave to appeal. A copy of this judgment may also be sent to the Inspector-General Police, Province of N. W. F. P. Peshawar for necessary administrative/legal actions created by mandates of law upon him. He should personally take interest to bring Naushad and Meerzai the major culprits, to the books and produce them in the trial Court to create a deterrent for sources of narcotics and other contraband items. H.B.T./1174/FSC ?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.