1989SCMR491 (PLP)

SHAFIUR RAHMAN, J.‑‑The two petitioners who were convicted and sentenced under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order), seek leave to appeal by separate petitions against a consolidated judgment of the Federal Shanat Court dated 11‑2‑1988 whereby their appeals were dismissed and conviction and sentence maintained. According to the prosecution case Arshad Islam Shaikh, inspector was on patrol duty on 6‑8‑1986 at 3‑00 p.m. in the Federal `B' Area, Karachi when he received spy information that two persons sitting in a car in front of Khyber Hotel, were in possession of `Heroin'. He got two witnesses of the public P.W.1, Amir Ahmad and one Ishtiaq (not produced) and went to the spot where a Car No.024‑200 was parked and the two petitioners were sitting in the front seats. Khair Gul was sitting on the driver's seat. A bundle was recovered from in between the two front seats which contained cloth packets containing one kilo of `Heroin'. The petitioners denied the recovery and pleaded that they had gone for the sale of the car of accused Khair Gul when they were brought to the Police Station and the recoveries were planted. The trial Court after examining the entire evidence, both of the prosecution and defence, believed the recovery and the joint complicity of the petitioners and convicted‑them under Article 4' of the Order and sentenced them to 15 years' R.I., 15 stripes and Rs.20,000 fine in default 2 years' R.I. The Federal Shariat Court on appeal also believed the recovery and rejected their appeals. The learned, counsel for the petitioner‑‑Syed Amir Hamza, has referred to that part of the statement of the petitioner which showed that he was picked up and given a lift in the car having no concern with what was carried or was found in the car. According to the learned counsel, it was Khair Gul who according to the prosecution case as well as his own plea, was incharge of the vehicle as a driver and normally could be taken to be aware of all the contents incriminating or otherwise found therein. The plea that Syed Amir Hamza was unwary passenger, has according to the learned counsel for the petitioner, not received proper attention and the benefit of doubt which should have been extended to him was not extended. The learned counsel for the other petitioner (Khair Gul) has contended that `Place' has been defined in Article 2, clause (j) to include a vehicle and for that reason it was obligatory under section 103, Cr.P.C. to enlist not only the witness of the public but he must necessarily be of the locality. We find that a witness namely, Amir Ahmad picked up from the public, on receipt of the information coupled with the statement of the Police Officer, was sufficient to establish the recovery, if no other fault is found therein. The Courts have found none and we do not consider any legal ground available to challenge it on the ground of non‑compliance or improper compliance of section 103 of the Code of Criminal Procedure. Our decisions in Muhammad Shah v. State (P L D 1984 S C 278); Saeed Ahmad Hamdani v. Muhammad Irfan and others (P L D 1986 S C 690); Malik Aman v. The State (1986 S C M R 17) and Sultan and others v. The State (1987 S C M R 1177), lay down the law on the subject. It is contended also by the learned counsel for Khair Gul that the Chemical Examiner's Report finally made available is sketchy. The answer to such an objection is that the petitioner should have moved the Court for summoning the Chemical Examiner in order to explain what was not clear in the report. An objection on that account at this stage is not available. We find that the petition filed by Khair Gul has no merit and leave to appeal is refused, while leave to appeal is granted to Syed Amir Hamza in Criminal Petition No.3‑K(S) of 1988. MA.K./K‑81/S Order accordingly.