P L D 1993 Federal Shariat Court 25 (PLP)

(ii) People from public had gathered or not. (iii) Chain of handcuff was in the hand of Ehsanullah or not. (iv) Witnesses had gone on foot or on a vehicle. (v) Unearthed the spot in the house. (vi) Chain of handcuff was in the hands of Imtiaz Shah or not. (vii) Unearthed the spot outside the house.

8. The contradictions mentioned hereinabove are of minor nature. Such contradictions occur due to passage of time. The incident had taken place on 11‑9‑1991 and witnesses have been examined in September, 1992. Thus no importance can be attached to such discrepancies. The learned Magistrate has rightly disposed of such objections in the words as under:‑‑ "There are some minor discrepancies in the statements of witnesses which are of no importance and the same did not go to the root of the case:" I too agree with his view. Regarding non‑obtaining of search warrant from a Magistrate it may be observed that P.W. 5 Mehmood Hussain has in clear words said that the appellant dug a place outside of his house. I have gone through evidence of P.W. 4 Muhammad Anwar, he has mentioned the corner of the house. It is not clear whether it was inside or outside of the house. In such situation while relying on evidence of P.W. 5 Mehmood Hussain it can be, said that the appellant dug a place outside the house. Even otherwise during leading to recovery of contraband material search warrant is not necessary. Besides, the appellant has been challaned and case proceeded against the appellant before the Court, thus such defect would neither affect the competence nor jurisdiction of the Court. Reliance is placed on (i) 1984 SCMR 392, (ii) 1986 SCMR 1836, and (iii) 1989 PCr.LJ 209. (i) In 1984 SCMR 392 the Court has taken the view:‑‑ "We may now come to the last point, that is, the offence of drinking, if committed at a place other than public, being not cognizable, whether the investigation and submission of challan by the police in such a case is vitiative of the trial. According to Article 16, an offence punishable under Article 4, Article 8 or Article 11 is cognizable "if committed at a public place". Since the offence under Article 11, even if not committed at a public place, is also punishable. Article 16 seeks to create a distinction by making only the offence committed at a public place cognizable. Thus where the act of drinking is committed at a public place, the offence is cognizable and the police officer can take action under the Code of Criminal Procedure without any curb on his power to arrest. Article 12(1), however, alters for a different situation, that is, where the offender has not committed the act at a public place but is only suspected of having taken an intoxicant in violation of Article 8 or Article 11, in which case the police officer shall first ask him to accompany him to an authorised medical officer. The police officer can detain and arrest the suspected person only if he, either refuses to so accompany him or having been examined by the medical practitioner, is certified by him to have taken an intoxicant. There is thus no conflict between the provisions of Articles 16 and 12(1). The two provisions clearly refer to two different situations and provide for distinct modes of action. Where the act is committed at public place and is as such cognizable under Article 16, there is no need to take the offender to a medical officer before making his arrest. But where he is only suspected of having committed the offence, further confirmation has been considered by the Legislature necessary before authorising the police to effect his arrest. The argument that the provision of Article 12(1) can apply only in a cognizable case, is, therefore, misplaced and contrary to legislative intent. By necessary implication, the police officer, once he makes arrest in accordance with Article 12(1), can investigate into the case and forward report under section 173, Cr.P.C. Where, however, the police officer acts in disregard of sub‑Article (1) of Article 12, he shall be liable under sub‑Article (2) of that Article, but this will not affect the cognizance of the offence taken by the Court under section 190, Cr.P.C. or its jurisdiction to try offender." (ii) In 1986 SCMR 1836 the Court has taken the view:‑‑ "As regards the first contention, suffice it to say that the proposition of law is well‑settled that an illegality committed in the course of investigation does not affect‑the competence and the jurisdiction of the Court. The fact that the learned trial Court had the requisite jurisdiction in the matter was not disputed by the learned counsel." (iii) In 1989 PCr.LJ 209 the Court has taken the view:‑‑ "The view taken by the Supreme Court of India, it may be mentioned, is not different` than the one adopted by the superior Courts of Pakistan. In H.A. Rishbud and another v. State of Delhi AIR 1955 SC 196 it was held that cognizance under section 190 of the Code of Criminal Procedure on an invalid police report cannot be said to be prohibited and, therefore, a nullity. Such an invalid report may still fall either under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure and in any case, cognizance so taken, is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537 of the Code of Criminal Procedure is attracted. In my considered opinion, had attention of the learned Single Judge been drawn to the above authorities, which have laid down a 'settled law in the matter, he should have no occasion to have taken a contrary view in‑the case Karim Haider v. State (supra). In this context of the matter, the inescapable conclusion that one can draw is that, investigation by any Law Enforcement Agency, is a proceeding antecedent to the trial. Any illegality/irregularity during the course whereof may expose the Investigating Officer to any criminal or, as the case may be, a civil action in the circumstances of a case, but it cannot be visualised as to how this disability of his can project itself to the proceedings in a Court of law or prevent it from taking cognizance of the offence on a report purportedly made by him under clause (a) or (b) of section 190 of the Code of Criminal Procedure. Similarly if a Court is otherwise competent to take cognizance of a case and, under the law, is equipped with the jurisdiction to try the same; it is difficult to see as to how an infirmity in the pre‑trial proceedings would prevent the Court from proceeding with the trial or, for that matter to quash the proceedings pending before it on this ground. I am, therefore, of the firm view that jurisdiction of a Court cannot be ousted merely because a report was submitted by a Police Officer who was not authorised to investigate. In the instant case too I would hold that non‑compliance of section 155(2) of the Code of Criminal Procedure will have no bearing on the trial before the learned Magistrate as he is otherwise competent to proceed with the trial and as such no case is made out to warrant action under section 561‑A, Code of Criminal Procedure."

9. Then the learned counsel for the appellant contended that the appellant was acquitted in the case FIR No. 283/91 hence he be also acquitted in this case. The learned counsel has placed before me the judgment dated 26‑10‑1992 passed by the learned Magistrate. I have gone through the judgment. The learned Magistrate has acquitted the appellant from the case for the reasons:‑‑ "I have gone through the record and evidence adduced on the file. I have also heard the arguments of learned counsel for the accused as well as State Prosecutor. There are so many discrepancies and draw backs in. this case. Firstly: The police has not obtained any search warrant for conducting search of the house, though they have prior information. Secondly: The police has not associated any public witness, nor given any explanation for non‑compliance of section 103, Cr.P.C. In the complaint, in addition to these shortcomings, the deposition of prosecution witnesses is discrepant on the point of mode of recovery. More than that there is no deposition about the issuance of docket in the chain of witnesses. P.W.2 who is investigating officer and the complainant at the same time his such evidence is not considered as free of doubt. The house from which the recovery was allegedly made was not in exclusive possession of the accused and other persons were also residing there: So no implicit reliance can be placed on the statement of such witnesses, who witnessed the recovery proceedings. P.W. 2 and P.W. 5 have got significant contradictions on the manner of weighing of recovered heroin which creates serious doubt whether the alleged recovery was made or foisted upon the accused: In the light of above discussion, I am of the opinion that prosecution has not stood on its legs and was not able to establish its version beyond any reasonable shadow of doubt. The accused being a favorite child of law should be given benefit of doubt not as a concession but as a right. In addition to this benefit of doubt the drawbacks/irregularities committed by the police are not curable. I, therefore, while giving benefit of doubt to the accused acquit him from commission of offence under Article of the Prohibition (Enforcement of Hadd) Order (4 of 1979), accordingly."

10. Prima facie the grounds leading to acquittal of the appellant seem to be not only unconvincing but superfulous also. Thus no benefit can be extended in favour of the appellant on the basis of the same.

11. In such view of the fact there is no merit in the appeal which is dismissed accordingly. The learned trial Magistrate has already taken a lenient view in awarding the sentence to the appellant. I see no ground to lessen it. The appeal is disposed of accordingly. N.H.Q./796/FSC Appeal dismissed.