P L D 2009 Karachi 191
Before Ali Sain Dino Metlo and
Khawaja Naveed Ahmed, JJ
NAZEER AHMED---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No. D-86 of 2007, decided on 13th October, 2008.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 25---Criminal Procedure Code
(V of 1898), S.103---Appreciation of evidence---Benefit of doubt---Police
witnesses---Complainant as investigating officer---At the time of recovery from
accused, investigating officer did not associate private persons as recovery
witnesses and only relied upon his subordinates and furthermore he himself
registered the complaint and investigated the case---Validity---Investigating
officer of police or such other force, under S.25 of Control of Narcotic Substances
Act, 1997, was not authorized to exclude independent witnesses nor it did away
with principle of producing the best of available evidence-While keeping
provisions of S.103, Cr.P.C., which were salutary intact for searches in
respect of all other things, the legislature considered it expedient to do away
with requirement of calling upon respectable persons to attend and witness
search in respect of narcotics---Provisions of S.25 of Control of Narcotic
Substances Act, 1997, were a departure from general law of land and appeared to
be outcome of an expediency so as to give a free hand to police and other
forces while dealing with cases involving narcotics---By excluding
applicability of S.103, Cr.P.C. in narcotic cases, legislature had not
conferred any additional or extra sanctity upon officers of police or such
other forces---Seizing officer excluded independent persons to act as witnesses
of arrest and recovery and chose two of his subordinates to act as attesting
witnesses, who too did not support prosecution case---Seizing officer himself
acted as investigating officer and Trial Court finding him innocent acquitted
one of the two persons sent for trial---High Court declined to maintain
conviction and sentence awarded to accused by Trial Court, as accused was
entitled to benefit of doubt---Appeal was allowed in circumstances.
Ali Hassan v. The State PLD 2001 Kar. 369; Pir
Bux v. The State 2007 MLD 1696 and The State v. Bashir and others PLD 1997 SC
408 rel.
(b) Criminal Procedure Code (V of 1898)---
----Ss.103 & 161---Recovery
witness---Omission to record statement of such witness---Effect---Omission to
record statement of witness under S.161, Cr.P.C. creates a serious doubt about
his presence at the time of alleged recovery.
(c) Control of Narcotic Substances Act (XXV of
1997)---
----S. 9(c)---Criminal Procedure Code (V of
1898), Ss.103 & 161---Appreciation of evidence---Recovery witness---Non
recording of statement under S.161, Cr.P.C,---Cross-examining the witness on
next date of hearing---Effect---Recovery witness was required to be examined on
the same day so that one might not be able to know answers given by others in
cross-examination---In absence of statement under S.161, Cr.P.C. of recovery
witness and recording of his evidence much later after recording complainant's
evidence, accused was deprived to some extent, of his right of effectively
cross-examining him---No weight could be given to evidence of such witness
particularly when he was subordinate of complainant.
(d) Criminal trial---
----Investigating officer---Duties---Justice is
to be done not only in courts, but every person particularly one who is
entrusted with public power is required to do justice at his level---Officer of
police or such other force, invested with enormous powers, is also obliged in
law to do justice and conduct investigation fairly and independently---Such
officer is required to collect and preserve all relevant evidence, even if it
be favourable to accused.
(e) Criminal Procedure Code (V of 1898)---
----S. 154---Registration of case and
investigation---Principles---Officer, who is himself complainant in the case
cannot be expected to collect and preserve evidence, which goes against his
case---Such investigating officer cannot properly perform duties of an
independent and fair investigating officer.
(f) Police Rules, 1934---
----R. 25.2, para. 3---Investigating officer,
duty of---Scope-.--Duty of an investigating officer to find out the truth and
his object should be to discover actual facts---For achievement of such object,
investigating officer should not commit himself prematurely to any view of the
facts for or against any person.
(g) Qanun-e-Shahadat (10 of 1984)---
----Arts. 117 & 120---Criminal
trial---Charge, proving of---Burden of proof---Principles--Burden is upon
prosecution to-prove charge against accused beyond reasonable doubt and not
upon accused to prove his innocence---Law presumes an accused innocent till
proved guilty and does not presume an accused guilty till proved innocent.
Abdul Qadir Halepota for Appellant.
Ashfaq Hussain Rizvi, Special Prosecutor ANF
(present on 11-9-2008 and 24-9-2008 and absent on 13-10-2008).
Dates of hearing: 11th, 24th September and 13th
October, 2008.
JUDGMENT
ALI SAIN DINO METLO, J.---Appellant Nazir Ahmed Lashari has challenged
the judgment dated 6-3-2007 passed by Sessions-cum-Special Judge for the
Control of Narcotic Substances, Sukkur. (Syed Faiz Ahmed Rasool Rashdi),
whereby he was convicted under section 9(c) of the Control of Narcotic
Substances Act, 1997 (C.N.S. Act) and sentenced to undergo imprisonment for
life and to pay fine of Rs.200,000 or in default of payment of fine to suffer
imprisonment for one year more.
2. Briefly, the facts are that on 1-12-1997,
Inspector Sher Ali Shah Sherazi of Anti-Narcotic Force (ANF), Sukkur received
spy information that the appellant and Abdul Sattar Shah (acquitted by the
trial court) were coming from Jacobabad by a wagon along with a big quantity of
narcotics for delivery to a party on Military Road, in front of Public School,
Sukkur. He, therefore, proceeded to the pointed place, along with his staff,
intercepted the wagon and arrested the appellant and Abdul Sattar Shah at 11-00
a.m. The appellant was having a bag containing four packets of heroin, each
weighing one kilogram and
four packets of opium, each weighing one kilogram. Samples weighing 10 grams
were taken from each packet for sending to the Chemical Examiner. Such memo of
arrest and recovery prepared by the Inspector was, attested by his constables
Muhammad Qasim and Abdul Razzak. The Inspector registered the F.I.R. at Police
Station ANF, Sukkur, on the same day, at 12-00 noon, and on the same day, at
1500 hours, he recovered two packets of heroin, each weighing one kilogram and
three packets of opium, each weighing one kilogram, from the house of the
appellant situated in First Family Line, S.P. house road, Jacobabad, situated
at the distance of about 80 kilometers from Sukkur. Samples weighing 10 grams
were taken from each packet. Such memo of recovery was also attested by the
same constables. The Chemical Examiner confirmed that the material was heroin
and opium.
3. On the completion of investigation by the
same Inspector, the charge-sheet was filed in which one Saifuddin Brohi,
resident of Mustung, Balouchistan, was also shown as an absconding accused.
According to the Investigating Officer (Inspector Sher Ali Shah Sherazi), the
narcotics belonged to Saifuddin Brohi. However, the latter could not be
arrested and was, therefore, declared as absconder.
4. At trial, prosecution examined Inspector Sher
Ali Shah Sherazi (P.W.1), Muhammad Qasim (P.W.2) and Imtiaz Ali (P.W.3). The
appellant as well as Abdul Sattar Shah did not produce any evidence in their
defence. The trial Court acquitted Abdul Sattar Shah and convicted and
sentenced the appellant as above.
5. The appellant and the acquitted accused were
arrested in a thickly populated area from a passenger wagon but none from the
passengers or from the crew of the wagon or from the persons available there
has been cited as witness. Even their names have not been disclosed and no
plausible explanation has been given for excluding them. The provisions of
section 25 of the C.N.S. Act, which have been overemphasized by the
prosecution, do not authorize an investigating officer of police or of such
other force to exclude independent witnesses. It does not do away with the
principle of producing the best of the available evidence.
6. Under section 25 of the C.N.S. Act,
applicability of section 103 of the Code of Criminal Procedure 1898 (Cr.P.C.),
has been excluded in making searches and arrests in respect of narcotics.
Section 103 Cr.P.C. enjoins the officer or other person, who wants to make
search of a place, to call upon, before making the search, two or more respectable
inhabitants of the locality to attend and witness the search. The purpose,
according to the unanimous opinion of the superior Courts, is to prevent
chicaneries of police.
7. While keeping the provisions of section 103,
Cr.P.C., which are undoubtedly salutary, intact for searches in respect of all
other things, the legislature considered it expedient to do away with the
requirement of calling upon the respectable persons to attend and witness
search in respect of narcotics. Thus, the provisions of section 25 of the
C.N.S. Act are a departure from the general law of the land and appear to be
out-come of an expediency so as to give a free hand to police and other forces
while dealing with cases involving narcotics.
8. By excluding applicability of section 103 of
Cr.P.C. in narcotic cases, the legislature has not conferred any additional or
extra sanctity upon the officers of police or such other forces. It has not
made them more reliable. Indeed, as it has been rightly observed by a Division
Bench of this Court, in the case of Ali Hassan v. The State, reported in PLD
2001 Karachi 369, `man cannot be made moral through legislation'. The effect of
section 25 of the C.N.S. Act will be that evidence of a police officer
regarding recovery of a narcotic substance cannot be discarded only on the
ground of non-compliance of section 103, Cr.P.C. In another case, re Pir Bux v.
The State, reported in 2007 MLD 1696 (Karachi), it was observed that
notwithstanding the non-applicability of section 103, Cr.P.C. in the cases of
narcotics, the officers making searches, recoveries and arrests are required to
associate private persons, more particularly in those cases in which their
presence is admitted so as to lend credence to such actions and to restore
public confidence.
9. In the present case the Inspector excluded
everybody else to act as witness and made only two of his constable of trust as
witnesses of the alleged recoveries at both the places i.e. at Sukkur as well
as at Jacobabad. Surprisingly, both the constables did not support the
prosecution case. One, namely, Muhammad Qasim (P.W.) was examined and he did
not support the prosecution case and was declared hostile; while the other,
namely, Abdul Razzak, was given up on the ground that he too was not supporting
the prosecution.
10. The prosecutor, in order to fulfil the
formality of examining at least two witnesses in support of the prosecution,
examined constable Imtiaz Ali who was neither cited as witness in the
charge-sheet nor his statement was recorded by the Investigating Officer under
section 161, Cr.P.C. Omission to record his statement under section 161,
Cr.P.C. creates a serious doubt about his presence at the time of alleged
recoveries. His evidence was also recorded after about three months of
recording complainant's evidence. As a matter of principle witnesses on a
point, such as recovery, are required to be examined on the same day so that
one may not be able to know the answers given by the other in
cross-examination. Thus, in absence of his 161, Cr.P.C. statement and recording
of his evidence much after recording complainant's evidence, the appellant was
deprived, to some extent, of his right of effectively cross-examining him. No
weight can be given to the evidence of such witnesses, particularly when he is
subordinate of the complainant.
11. The explanation given by Imtiaz Ali (P.W.3)
that the independent persons available there were not cited as witnesses in the
case because they were not willing to give evidence cannot be accepted as valid
excuse for excluding them.
12. Justice is to be done not only in Courts.
Every person, particularly the one who is entrusted with public power, is
required to do justice at his level. An officer of police or such other force,
invested with enormous powers, is also obliged in law to do justice and conduct
investigation fairly and independently. He is required to collect and preserve
all the relevant evidence, even if it be favorable to an accused.
13. An officer, who is himself complainant in
the case, cannot be excepted to collect and preserve evidence, which goes
against his case. He cannot properly perform duties of an independent and fair
investigating officer. It is, therefore, that the superior Courts have never
approved the practice of complainant police officers acting as Investigating
Officers.
14. According to para. 3 of rule 25.2 of Police
Rules, 1934, it is the duty of an Investigating Officer to find out the truth
and his object shall be to discover the actual facts and for the achievement of
such object he shall not commit himself prematurely to any view of the facts
for or against any person.
15. In the case of the State v. Bashir and
others, reported in PLD 1997 SC 408, the Supreme Court, referring to the above
Police Rule observed.--
"It could hardly be expected that a police
officer, who is heading a raiding party and is a witness, also becomes the
complainant and lodges an F.I.R. against the accused, and then becoming an
Investigating Officer of the same case, will comply with the aforesaid Police
Rule. In the circumstances, the practice of seizing officer or the head of a
police party who is also a witness to .the crime becoming or being nominated as
an Investigating Officer of the same case should be avoided and if any other
competent officer is available in the police station, he may be nominated as
the Investigating Officer rather than the head of the police party. As observed
Investigating Officer is as important witness for the defence also and in case
the head of the police party also becomes the Investigating Officer he may not
be able to discharge his duties as required of him under the Police
Rules."
16. The Supreme Court directed the Ministry of
Law, Justice and Parliamentary Affairs, Islamabad and also the Interior
Division of the Federal Government as well as the heads of the Investigating
Agencies to issue instructions and see that such officers do not act as
Investigating Officers and some other officers are assigned the duty of
Investigating Officers in such cases. In order to achieve to objects of
impartiality and fairness in investigation, the legislature, by promulgating
the Police Order, 2002, separated the investigation branch from operation and
other branches of police.
17. The observation of the trial Court that
Muhammad Qasim (P.W.2) being no more in the service of ANF could be won over by
the accused for monetary considerations, is unwarranted. Credibility of a
person cannot be linked with his active service in police or such other force.
Those who are not in such service are also respectable. As it appears from the
deposition of the witness, Muhammad Qasim, after leaving the service of ANF,
had joined and was serving in the Airport Security Force.
18. Nothing has come in evidence to show that
the other attesting witness, namely, Abdul Razzak, was dismissed from service.
The bare statement of the prosecutor in that regard may not be sufficient to
establish such fact as it does not have any evidentiary value.
19. In an unreported judgment passed on
14-9-2006 in Criminal Appeal No.D-11/01, a Division Bench of this Court had
acquitted appellant Pervez Ahmed of a similar charge on the ground that out of
the two attesting witnesses of the memo of recovery one had supported and other
had not supported the prosecution case. The judgment was cited before the trial
Court but no reason was assigned for not following it.
20. The only reason which seems to have
prevailed upon the learned Special Judge in convicting the appellant is that
the appellant has failed to establish his enmity with the Inspector, who was
not likely to involve an innocent person in such a heinous offence. The answer
lies in the impugned judgment itself, according to which, acquitted accused
Abdul Sattar Shah was involved without any evidence against him. If he can
involve one falsely, there can be no guarantee for the other. Instances of
substitution and planting are not lacking. Burden is upon the prosecution to
prove the charge against an accused beyond reasonable doubt and not upon an
accused to prove his innocence. Law presumes an accused innocent till proved
guilty. It does not presume an accused guilty till proved innocent.
21. Learned counsel for the appellant pointed
out certain discrepancies in taking samples, delay in sending them to chemical
examiner, and the report of the Examiner, but in presence of the above
mentioned big defects in the prosecution case, they loose their importance and
we do not consider it necessary to dilate upon them.
22. In view of the above mentioned facts and
circumstances, particularly where the seizing officer excluded the independent
persons to act as witnesses of arrest and recovery and chose two of his
subordinates to act as the attesting witnesses, who too did not support the
prosecution case, and the seizing officer himself acted as the Investigating
Officer and the trial Court, finding him innocent, acquitted one of the two
persons sent for trial, it will not be safe to maintain conviction and sentence
of the appellant. He is, therefore, entitled to the benefit of doubt and
consequent acquittal.
23. It was for these reasons that by a short
order passed and announced on 13-10-2008, the appeal was allowed, the
conviction and sentence of the appellant were set aside and he was acquitted.
M.H./M-56/K
Appeal allowed.
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