PLJ 2004 SC 290

[Shariat Appellate Jurisdiction]

Present: NAZiM HussAiN siddiqui, chairman, javed iqbal,

tanvir ahmad khan, dr. allama khalid mahmood and

dr. rashid ahmad jullundhari, JJ.

SARFRAZ GUL-Appellant

versus

STATE-Respondent

Criminal Appeal No. 2(s) of 2001, decided'on 11.12.2003.

(On appeal from the judgment dated 20.10.1999 of the Federal Shariat

Court, Islamabad, passed in Cr. A. No. 143/1/1999)

(i) Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)--

-—Art. 22-Criminal Procedure Code, 1898 (V of 1898), S. 103-Constitution
of Pakistan (1973), Art. 185(3)-Factum of recovery of incriminating
material-Search was not made under S. 103 Cr.P.C. but was conducted
under provisions of Art. 22 of Prohibition (Enforcement of Hadd) Order,
1979-Legality-Leave to appeal was granted to consider such legal aspect
and also to determine whether evidence of four police officers, who
supported recovery, can be brushed aside on account of violation of
Section 103 Cr.P.C. [Pp. 291 & 292] A

(ii) Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)--

—-Art. 22-Factum of Recovery-Proof of-Statement of recovery witnesses
duly corroborated has rightly been considered and believed by Courts
below-Witnesses had no rancour or animosity against appellant and no
remote suggestion was even made in that regard-Statement of official
witness in absence of any serious enmity can be relied upon if his
testimony remained unshattered. [P. 292] B

(iii) Prohibition Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)--

—Art. 22-Recovery of incriminating material statement of hostile witness- Evidentiary value of-Witness declared as hostile had admitted in

categorical and unequivocal manner that recovery memo was got signed
by him—Neither petitioner nor hostile witness claimed that signatures of
hostile witness were obtained on plain paper-Statement of hostile
witness cannot be discarded altogether and the same can be taken into
consideration subject to availability of corroboration-Court has bounden
duty to consider and determine as to whether any part of such evidence
was worth of belief if examined in the light of other incriminating
material and evidence which had come on record-Factum of recovery
was thus, established on basis of evidence on record-Prosecution has
established guilt of appellant by producing forthright and worthy of
credence evidence-No interference was warranted in findings arrived at
by Court below. [P. 292 & 293] C & D

1986 SCMR 17; PLD 1984 SC 278; PLD 1981 SC 635; 1986 SCMR 11; PLD 1985 FSC 410; PLD 1987 FSC 22; 1972 SCMR 597 and 1975 SCMR 119 ref.

Mian Hissamuddin, ASC and Mr. M. Zahoor Qureshi, AOR (absent) for Appellant.

Ch. Muhammad Akram, ASC for Respondent. Date of hearing* 11.12.2003.

judgment

Javed Iqbal, J.-This appeal, with leave of the Court, is directed against the judgment dated 20,10.1999 passed by learned single Judge of the Federal Shariat Court of Pakistan, Islamabad, whereby the appeal preferred on behalf of appellant has been dismissed and judgment dated 6.8.1999 passed by learned Sessions Judge/Zila Qazi Chitral whereby the appellant was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to undergo R.I. for five years and fine of Rs. 10,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year has been kept intact- except the sentence of whipping.

2. Leave was granted by this Court vide order dated 1.1.2001 which is reproduced herein below for ready reference:

"The main contention of the learned counsel appearing for the petitioner is that the provisions of Section 103 Cr.P.C. have not been complied with before the search was conducted as only one person from public was associated when the search was made, who resiled at the trial. He referred to "Iltaf Hussain u. The State" (1996 SCMR 167) and "Muhammad Mansha v. The State" (1997 SCMR 617).

2. The learned Additional Advocate General, who is present on notice, submitted that the search in this case was not made under Section 103 Cr.P.C. but it was conducted under the provisions of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979.

3. We grant leave to consider this legal aspect and also to determine whether the evidence of the four police officers, who supported the recovery, can be brushed aside on account of violation of Section 103 Cr.P.C. Moreover, the learned counsel is directed to bring on record the search warrant issued in this case."

3. We have heard Mian Hissamuddin, learned ASC on behalf of
appellant and Ch. Muhammad Akram, learned ASC for State at'length. We
have examined carefully the judgment passed by learned trial Court as well
as the judgment impugned. We have thrashed out the entire evidence with
eminent assistance of learned counsel on behalf of the parties. After having
gone through the entire record of the case we are of the considered view that
factum of recovery has been proved beyond shadow of doubt. The statement
of recovery witness namely Bahadur Khan (P.W. 5)/Police Constable duly
corroborated by Inayatullah (P.W.2)/Sub-Inspector, has rightly been
considered and believed by the learned Courts below. Bahadur Khan
(P.W. 5) was subjected to lengthy cross-examination but nothing
advantageous could be elicited rendering any assistance to the case of
appellant. He had no rancour or animosity against the appellant had no
remote suggestion was even made in this regard. In the absence of any
enmity the question of false implication of the appellant by Bahadur Khan
(P.W. 5) is not conceivable. We are not persuaded to agree with the
submission of Mian Hissamuddin, learned ASC on behalf of appellant that
the statement of Bahadur Khan (P.W. 5) being an official witness and Police
Constable should have been discarded for the reason that it is well settled by
now that the statement of an official witness in the absence of any serious
enmity can be relied upon if his testimony remained unshattered. In this
regaret*we are fortified by the dictum laid down in the following cases :--

Malik Aman v. State (1986 SCMR 17), Muhammad Shah v. State (PLD 1984 SC 278), Muhammad v. State (PLD 1981 SC'635) Abdul Hameed v. State (1986 SCMR 11), Abdul Hameed v. State (PLD 1985 FSC 410), Sarfraz Durrani v. State (PLD 1987 FSC 22).

4. The alleged enmity existing between Javed Khan, HC, and
appellant would have no substantial effect on merits of the case. It is not the
case of appellant that the alleged recovered heroin and opium was falsely
planted by Javed Khan, HC. The appellant has succeeded in bringing it on
record that Javed Khan, HC, was attached with the Superintendent of Police
and used to roam in the city in the official jeep meant for the Superintendent
of Police but this aspect of the matter has no nexus whatsoever with the
commission of alleged offence and the overwhelming incriminating material
cannot be discarded on this score as pressed time and again by the learned
ASC on for appellant. No doubt that Rehmat Jalal (P.W. 1) was declared
hostile but he had admitted in a categoric and unequivocal manner that
recovery memo was got signed by him. It is not the case of appellant that

signatures of Rehmat Jalal (P.W. 1) were obtained in a plaint appear. It was also not so stated by Rehmat Jalal (P.W. 1) himself. There is no cavil with the proposition that the statement of hostile witness cannot be discarded altogether and can be taken into consideration subject to availability of corroboration. It is bounden duty of the Court that such evidence should be considered and determined as to whether any part of it is worthy of belief, if examined, in the light of other incriminating material and evidence which has come on record. In this regard we are fortified by the dictum laid down in cases titled Zahid Khan v. Gulsher (1972 SCMR 597), Munawar Khan v. State (1975 SCMR 119). The factum of recovery has been established which lends full corroboration to the statement of Rehmat Jalal (P.W. 1) by whom the recovery memo was signed without any protest.

5. We have also adverted to the contention of learned ASC that
search warrant duly issued by the Magistrate should have .been executed by
the SHO himself instead of the police party for the reason that SHO had
reached the shop of the appellant from where the heroin and opium was
recovered and he remained associated with the process of recovery. Besides
that the search warrant was never issued in the name of SHO and it could
have been executed by the Police.

6. The provisions as contained in Section 103 Cr.P.C. were adhered
to and minor lapses on the part of police can be ignored as it has caused no
prejudice to the appellant. The reluctance of general public to become
witness in such like cases against well organized and a resourceful drugs
mafia hardly warrants any elaboration.

7. There is no denying the fact that the entire recovered heroin and
opium were not produced before the Court which is not a mandatory
requirement as one gram each of the heroin and opium was sent to Chemical
Sxaminer by whom a positive report was furnished. The submission of
barned ASC that the entire material should have been placed before the
Court, seems to be in oblivion of the provisions as contained in Section 516-A
Cr.P.C. It is an admitted fact that a certificate for destroying the recovered
heroin and opium was produced in the Court to substantiate the factum of
recovery.

8. In sequel to above mentioned discussion the prosecution has
established the guilt by producing forthright and worthy of credence
evidence. The conclusion as arrived at by the learned Federal Shariat Court
being well based and unexceptionable does not admit interference. The
appeal being devoid of merits is dismissed.

(A.A.) Appeal dismissed.