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Petitioner: GUL ZAMIN VS Respondent: STATE
1998 M L D 713
1998 M L D 713
[Federal Shariat Court]
Before Abdul Waheed Siddiqui, J
GUL ZAMIN---Appellant
versus
THE STATE---Respondent
Criminal Appeal No. 27/P of 1996, decided on 18th September, 1997.
Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Arts. 3 & 4---Appreciation of evidence---Recovery of heroin was not at all disputed because accused had himself admitted that recovered articles contained heroin---Though delay of five days occurred in despatch of samples, but it stood proved that samples were received by laboratories intact and the remaining material was kept in safe custody with Moharrir who was also custodian of sealed samples---Even otherwise delayed despatch of samples had not prejudiced defence of accused in any manner---Contention of substitution of accused, thus, proved to be misconceived---Judicial confession made by accused was proved to be voluntary and accused failed to establish that same was got under compulsion or torture---Accused could or could not be the owner of the recovered intoxicants in jericanes but his guilt was proved due to his being a co-transporter and accomplice of real culprit who succeeded to escape---Since criminal knowledge of accused about existence of heroin in huge quantity in the jericanes and intention of transporting same from one province to another had been established, accused was liable for offence with which he was charged in the same manner as if act was done alone by him----Absconding accused was the real owner of recovered huge quantity of heroin, but accused despite having knowledge of transportation of incriminatory material kept silent and became co-traveller of real culprit and also tried to mislead investigations---Accused contended that he being an aged person of about 65 years, mitigating circumstances existed in favour of reducing quantum of his sentence---Law would help those who helped the law and those who did not come to law with clean hands, would lose their rights on the law---Age factor or poverty could have generated mitigating circumstances, but in view of conduct of accused, it could be concluded that accused had already been sentenced with lesser punishment---Accused having been rightly convicted and sentenced, his appeal against conviction and sentence was dismissed, in circumstances.
1992 SCMR 1134; 1993 Pr. Cr. L J 195; 1993 P. Cr. L J 217; PLD 1993 Pesh. 160; 1995 P Cr. L J 1272; PLD 1996 SC 67 and 1993 P Cr. L J 1953 ref.
Yousaf Shah for Appellant.
Akhtar Naveed for the State.
Date of hearing: 16th June, 1997.
JUDGMENT
Appellant has assailed a judgment dated 2-6-1996 delivered by the Court of Additional Sessions Judge, Swabi whereby he has been convicted under Article 3 of the Prohibition (Enforcement of Hudd) Order, 1979, hereinafter referred to as the said Ordinance, and is sentenced for R.I. for eight years with whipping of 15 stripes and also a fine of Rs. 10,000 or in default to undergo R.I for six months more. Benefit of section 382-B, Cr.P.C has been extended to him.
2. Story of prosecution in brief is that on 28-9-1994 at 16-00 hours complainant Muhammad Riaz Khan (P.W.5) Inspector of C.I.A. accompanied by Mirza Khan FC, Zafarullah FC (P.W.3) and other personnel at his command were present at Check Post Pehur, Police Station Topi, A Bus No. 2491/MRA coming from Topi was made to stand and checked. In it three jericanes of plastic were found. The appellant declared the same to be of his ownership. Due to doubt, jericanes were opened, from one 10 bags of plastic were recovered which contained 10.250 Kgs. of heroin, from the second jericane 9 big and 5 small sized bags of plastic containing 10.250 Kgs. of heroin were recovered. The third jericane contained 10.250 Kgs. of liquid heroin. In total the recovery was 30.750 Kgs. of powdered and liquid di-acetyle morphine. Necessary procedure of separating samples for chemical examiner was completed. Appellant was arrested. A Murasla was sent to the police station, Topi for registration of F.I.R which was registered on the same day one hour later at 1700 hours. Appellant was charged under Articles 1 and 4 of the said Ordinance to which he did not plead guilty.
3. Prosecution examined five witnesses. Liaqat Ali Khan (P.W.1) has proved that on the receipt of Murasila he registered the case vide F.I.R (Exh. P.A.).`Zafar Iqbal (P.W.2) Resident Magistrate, Topi proved that on 6-10-1994 appellant was produced in his Court by the C.I.A Police and he got recorded his confessional statement vide Exh. P. W.2/1. During cross he has admitted that question No. 5 in the record of confession made by the accused, the word police has not been used but he has explained that the word anybody includes the police. The question in the record of confession being, "Are you making it. on your free-will and without the compulsion of anybody?" To another suggestion he has replied, "I have given the second warning to the accused, however, it is not. mentioned in the questioners but the same has been recorded in the certificate".
Zafarullah (P. W.3) F. C. No. 314 CIA Staff is a marginal witness to the recovery memo. Exh. P.C. He has proved recovery of all the three jericanes weight of the powdered and liquid heroin and separation of samples for chemical analysis. During cross he admitted that he climbed into the bus for personal checking of the passengers. None from the passengers was directed to get down from the bus. Then he climbed to the roof of the bus alongwith Mirza Khan (P. W.) and Rahman Ali. Then the appellant/accused also climbed to the roof and started resisting the search. He has further added that the jericanes were lying in a plastic bag which was brought down from the roof of the bus. Then the Investigating Officer ordered appellant to come down from the roof and asked him about the reasons for resistance. He had not noticed any person decamping from the spot or from the bus. He has denied the suggestion that nothing was recovered from the appellant and that the real culprit had decamped from the spot. Nisar Muhammad (P. W.4) LHC, CIA Staff, Swabi has proved that he was entrusted with warrant under section 204, Cr.P.C against co-accused absconding Naushad but since he had gone into hiding, therefore, the warrant was returned unexecuted. Muhammad Riaz (P.W.5) has proved that during the days of occurrence he was posted as Inspector C.I.A, Swabi and on 28-9-1994 (a 16.00 hours he was present at Pehure Check Post alongwith Mirza Khan and other police party when Bus No. 2491/MRA came and was checked. They recovered three jertcanes and on inquiry the appellant admitted its ownership. On opening the jericanes he recovered 20.5 Kgs. of heroin from two jericanes and the third contained 10.250 KGs of liquid heroin. It was weighed on the spot. Samples were separated. He drafted the Murasila, sent it to the police station and arrested the appellant who confessed his guilt before the Resident Magistrate, Topi. During confession appellant charged another co-accused Nawshad of Dir. He raided the house of Naushad but could not find him. He got the co-accused proclaimed as an absconder and sent the samples to the F.S.L., Peshawar. He completed investigation and submitted challan. During cross he has admitted that he does not know whether jericanes were lying on the top of the bus or inside the bus as a constable had boarded the bus and had informed him about the presence of jericanes. He had noted a person decamping from the bus. He did not order the decamping person to be arrested. To a suggestion he has admitted that he recorded statements of Sultan driver and Nawaz conductor six days later on 4-10-1994 as the bus left the site when he was busy in opening the jericanes. He has admitted further that he wrote application for chemical analysis of the samples on 3-10-1994. Again said that the samples were dispatched on the same day to F.S.L through a constable. The Report of Chemical Examiner (Ex. PW-5/3) indicates that the parcels were received on 3-10-1994 through FC No. 38 Police Station Topi. Anwar Shed (S.W.1) HC No. 617, Police Station Topi has proved that he was entrusted with the warrant of arrest issued against co-accused Naushad son of Gulay, resident of Village Garkool Usherai Data, District Dir. He went to Police Station Gandigar, and there associated one A.S.I. and searched the accused in his village and surrounding area. The accused had left his native village and had gone to Sindh Province. Consequently he returned the warrant Exh. SW-1/1 alongwith his report Exh. SW-1/2 on its reverse. On the basis of this statement the trial Court made orders under section 512, Cr.P.C and recorded evidence. In his statement under
section 342, Cr.P.C. the appellant has denied his involvement into the offence for which he was charged. To a question about his confessional statement on 6-10-1994 before the Resident Magistrate, Topi, he has replied, "I do not make any confession, nor I know the contents of the confession. The Magistrate did not inquire from me anything but asked to thumb-impress a white paper. Furthermore, I was tortured by the investigating Officer for 5 days, and he was compelling me to thumb?-impression on the paper without any explanation to the same". To a question about the reason of P.Ws., having disposed against him he has replied: "All the P.Ws., are Police Officials and they are highly interested" To a question about his own statement and the reasons for the charge, the appellant is replying "I am innocent and falsely charged. In tact the recovered heroin was belonging to Naushad absconding accused, who when saw the police taking down the jericane, he slipped away from the spot, and on inquiry I told this fact to the police that, it is the ownership and possession of Naushad absconding accused, but as Naushad had made his escape, therefore, in order to fill up, the police arrested me on suspicion, because the police was of the view that I am the companion of Naushad absconding accused belonging to Dir". He declined to be examined on oath and also did not produce any defence in support of his statement of having been substituted for absconding accused Nawshad.
4. I have heard the counsel for appellant and State. I also summoned and heard Muhammad Riaz (P. W.5) Investigation Officer and recorded his additional statement under section 428(1), Cr.P.C. His additional evidence was found necessary vide order dated 14-1-1997. This order is quoted verbatim:
"While the arguments of the Advocate for appellant were proceeding and were partly heard, this Court noticed that there were discrepancies appearing between F.I.R., depositions of P. W.3, P. W.5 and the report of chemical examiner which needs proper explanation by the Investigating Officer of this case. These discrepancies are that in F.I.R., it has been disclosed that from jericane No. 2, 14 bags were recovered. From each bag, 1 gram of heroin was taken out and 14 parcels were prepared numbered as 12 to 26 and were despatched to the chemical examiner. Remaining heroin was placed in a parcel numbered as 27. From jericane Nos. 3, 4 ml were separated for the chemical examiner and. parcel prepared was numbered as 28. Remains of liquid heroin were kept in a parcel numbered as 29. P. Ws. 3, and 5 have repeated this position in their depositions. Contrary to this, the report of Chemical Examiner, Peshawar is making .a reference to Parcels Nos. 12 to 25 and 27 leaving parcel Nos. 26 and 28 these discrepancies are further highlighted and create doubt when P. W.5, the Investigation Officer of the case, is deposing during the cross that the samples were despatched on the same day to Forensic Science Laboratory through a constable i.e. the day of incident namely 28-9-1994, but the report of chemical examiner is indicative of the receipt of the parcels on 3-10?1994. Where were the parcels for all these days and through whom of the constables the parcels were despatched is shrouded in mystery. Summon Investigating Officer of this case to clarify this position and give additional evidence under section 428 (1), Cr.P.C."
The additional evidence of the said Investigation Officer was partly recorded on 29-5-1997 as he had not brought the police record with him and without the said record the said evidence/statement could not be completed. He was directed to produce the said record and the case was adjourned to any working day of the 2nd week of June, 1997. The case was fixed again on 12-6-1997 on which date Head Constable Amir Muhammad of Police Station Charsadda appeared and filed an application from the said Investigation Officer with a doctor's certificate that he was ailing. Since the case was taking unnecessary time and the justice was getting delayed due to the tactics of prosecution, it was finally fixed on 16-6-1997, on which date Muhammad Riaz (P.W.5) again appeared and additional evidence under section 428(1) was completed. In this additional evidence he stated that he had handed over the jericanes to the Moharrir and it is the job of Moharrir to despatch the samples to the laboratory. The samples remain in the safe custody of the Moharrir till the same are sent for chemical analysis. He marked the parcels from, Serial Nos. 12 to 25 and also Serial No. 27 and that there is no parcel Serial Nos. 26 and 28. During cross to a suggestion he has replied that the Investigation Officer does not mention in the recovery memo that he handed over the samples to the Moharrir. However such entry is made in Register No. 2. He admitted that he had not filed a copy of Register No. 2 in the case file. To other suggestions he is replying:
"I have not recorded statement of the Moharrir to this effect that I have handed over samples to him nor I have obtained any receipt from him. I have seen the application Exh. P.W.5/2 on file which bears date 3-10-1994. I have handed over the case property as well as samples to the Moharrir on 28-9-1994. I was engaged in some other important cases, so I was not left with time to despatch the samples to the chemical examiner on 30-10-1994. I do not remember through whom I sent these samples to the chemical examiner. The register No. 2 of the F.S.L., Peshawar must have entered the name and designation and number of the employee of the police who had taken these samples to the laboratory. I have not mentioned in the application Exh. P. W 5/2 that through whom the samples was sent to the F.S.L ??..Although I do not know as to whether the jericanes were lying on the top of bus or inside the bus the bus, but I have connected the accused/appellant with contraband items because of the fact that when the jericanes were brought out of the bus the accused/appellant himself came out of the bus and himself said that he is the owner of the material and he was claiming that it was mustard oil ...I do not remember whether I tried to arrest co-accused Naushad resident of Usherai, District Dir from Moro Sugar Mills, District Nowshero Feroz, Sindh. It must be in the police record whether any efforts of arrest of Naushad were made from Dir. This way my efforts to arrest one Meerzai, resident of Bajur Agency must be in the police record which I have not brought today ....Case property was handed over to Muhammad Sahi, FC No. 38 of Police Station Topi on 30-10-1994 vide Dairy No. 7 which was entered in
Register No. 21 on S I. No. 199. It is meant for despatch of such articles and kept in the police station with Moharrir .....My statement recorded in trial Court is that the samples despatched on the same day is mistaken ....The co-accused Naushad was not arrested. The warrant under section 204, Cr.P.C was obtained from the competent Court for arrest of accused which was handed over to A.S.I. Fazal Hanan to raid the house of the accused in presence of two elders and he prepared the search memo of the raid of the house of Naushad which is (Exh. X/1). During the search of house nothing incriminating was recovered from his house. However, there was nothing and he was found that, he had gone to Sindh. I did not proceed to Sindh for his arrest. I wrote to procure history sheet of Naushad from police station Dir. He is involved in other criminal cases and he is declared P.O. in such other cases."
The learned counsel for appellant has contended that the case against the appellant is that of substitution, that none from the passengers of the bus has been joined as a witness and none of the P.Ws., is independent; that the samples were sent to the laboratories after five days and there is no record about the safe custody of the samples; that the judicial confession was obtained after tortures and after keeping the appellant tinder custody for one week; that the appellant is an aged person of 65 years and this creates a mitigating circumstance for him; that he has relied on, inter alia, the principles enunciated in 1992 SCMR 1134, 1993 P Cr. L J 195, 1993 P Cr. L J 217 and PLD 1993 Peshawar 160.
The learned counsel for State has contended that the recovery of huge quantum of heroin stands proved beyond any reasonable doubt; that there are rulings in which the delay of 3 weeks in sending the samples to the laboratory has been condoned; that the judicial confession is corroborated by ocular evidence; that the following citations fortify his arguments: 1995 P Cr. L J 1272 and PLD 1996 SC 67.
5. Before I deal with the contentions of the learned counsel for both the appellant and State, I have noticed with concern that there are certain substantial documents lying in the records of trial Court as well as police papers which should have been included in the paper book, but it appears that intentionally it has not been done to hoodwink this Court and make the course of justice take a wrong direction. For example in the records of trial Court, order sheet entry dated 8-1-1995 is in fact an order rejecting a petition for grant of bail to the appeal. Unfortunately the memo. of petition is not traceable from the records sent to this Court. Either it has been withheld by the trial Court for the reasons best known to it, or it has been lost but to the negligence and lack of sense of responsibility. whatever has been sent is the bail order dated 8-1-1995 Para. No. 3 of the said order reads:
"The samples were sent to the F.S.L. for analysis, which show that the sample relating to powders were that of heroin, and the sample regarding the liquid, was opined to be lime water.
Learned counsel for the petitioner argued that, actually the container having water in it, was that of the petitioner, who was going to take the water alongwith himself from the spring of his own village for his own use in Sindh, while the other two containers having powder, was belonging to absconding co-accused Naushad. But these arguments are not tenable, because on the spot, the petitioner owned all the three containers and there is no evidence on the file, which would help in ascertaining as to which one of the three,, containers was the property of the present petitioner and which one or more, was that of absconding co-accused Naushad.
It appears then that at the stage of bail, the contention of the appellant was that out of three jericanes, one containing lime water belonged to him and it had its origin from the spring of the village of the appellant i.e. Village Usheri, District' Dir and he was taking it for his own use in Sindh. Finding the application/petition for grant of bail rejected on this ground, the appellant took a complete somersault at the time he was making statement under section 342, Cr.P.C and denied his possession or ownership of all or any one of tile jericanes recovered from the bus in which he was also travelling. A person who tries to hoodwink the Courts through somersaults, and intentional misstatements loses his right to be helped by law. In the same statement under section 342, Cr.P.C. the appellant has admitted his knowledge about the ownership of the jericanes containing huge quantum of heroin and that being that of one Naushad who was travelling with him in the same bus, but slipped away when police raided the bus. Another somersault which is proved from the records is an untarnished deposition of Zafar Iqbal (P. W.2) Resident Magistrate, Topi who has proved judicial confession of the appellant per Exh. P. W.2/1. This exhibit reads:
In these circumstances, the contention of the counsel for appellant is of no avail to him that the accused remained one week in the police custody, was tortured and then was made under compulsion to give his abovementioned confessional statement specially when the appellant himself had replied in affirmative to a question before making this statement as to whether he was making it on his own free-will and without compulsion of anybody in which question the word anybody includes police as well. It appears from an application for remand of ten days and orders thereof (Exh. P. W.5/1) that a remand of seven days was granted by the competent Authority on 29-9-1994 subject to medical examination before and after police custody, and that the District and Sessions Judge be informed accordingly. This was enough precaution to save the appellant from torture in the police custody. So far as the citation PLD 1993 Pesh. 160 quoted-in this regard is concerned the ratio decidendi in the said case is quoted verbatim:--
"It seems to me that the learned Additional Sessions Judge has been impressed by the confession Exh. P.F. of Iftikhar which he had retracted. I am, however, of the opinion that in order to sustain conviction the confession cannot be relied on because not only Iftikhar Alam appellant but his co-accused were already in jail where they had been lodged in connection with case F.I.R. No. 155 dated 4-9-1988. Iftikhar was taken out from jail vide application dated 14-9-1988 at page 33 while Badam his co-accused was taken out on 18-9-1988, on the basis of application at page 18 of the file. On 15-9-1988, the police custody of Iftikhar was secured and on 20-9-1988, his confession was recorded. He remained in police custody for 7 days which by itself is suggestive of the involuntariness of the confession particularly when he had already been subjected to identification on 12-9-1988 as is evident from the Identification Memo. Exh. P. W.8/1. The principle that longer the police custody of an accused lesser the evidentiary value of his confession is applicable with full force in this case. Besides, the retracted confession Exh. P.F. is not supported by any evidence on material particulars. In this context the two hotels situate in Qissa Khawani Bazar, Peshawar where the accused had stayed for two consecutive nights were not traced. Again the sale of Suzuki Pick-up at Peshawar has also not been established."
The present case is clearly distinguishable because of the fact that neither the present appellant was previously in the jail in some other case, nor was there any need of identification parade. The recovery was at the spot and the defence has been taking different and conflicting versions and somersaults. In view of these circumstances, I do not find any substance in the contention that the judicial confession was involuntary.
From the calendar of witness in the challan, the only two independent witnesses of recovery from appellant are shown as Pir Sultan son of Khyber Shah at Serial No. 5 and Nawaz son of Nazar Gul at Serial No. 6. To a suggestion, Muhammad Riaz (P. W.5), Investigation Officer of the case, has admitted that the statements of these two witnesses were recorded by him on 4-10-1994. According to the statement of S.P.P. made in the trial Court on 24-10-1995, Nawaz Khan son of Nazar Gul was abandoned as being unnecessary. Earlier to that on 20-9-1995, the second independent witness namely Pir Sultan (son of Khyber Shah) was abandoned by the S.P.P. What car be the reasons for abandoning the only two independent witnesses and star witnesses as well who have otherwise been so clear about the connection of the appellant with the recovered jericanes in their statements under section 161, Cr.P.C. For example Pir Sultan is stating in his 161, CI.P.C, statement:--
Abadoning star witnesses is a mystery, but is unfolded by the following applications submitted in the trial Court and orders thereof:--
(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…
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