PLJ 2023 Cr.C. (Note) 283
[Lahore High Court, Bahawalpur Bench]
Present: Ch. Abdul Aziz and Muhammad Sajid Mehmood Sethi, JJ.
SAQIB RAMZAN--Appellant
versus
STATE and another--Respondents
Crl. A. No. 485 of 2016, heard on 29.3.2021.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(b)--Recovery of charas--Conviction and sentence--Challenge to--In normal circumstances, there is no bar for a police officer to become complainant of case and also to investigate it unless prejudice is not pleaded by accused facing trial or if such police officer is having some grudge or vengeance against accused--rancour or hostility of police officer can be perceived from record based on some confidence inspiring substance--Besides giving a clue of some sinister design behind registration of FIR, circumstances mentioned above also lead the Court to believe that Charas was planted to wreck vengeance against appellant which was arising out of a habeas corpus petition filed on his behalf--Prosecution remained fail to establish the guilt of appellant to alleged recovery of charas beyond any shadow of doubt--Appeal accepted while extending benefit of doubt. [Para 8 & 9] A & D
PLD 1997 SC 408 & 2020 YLR 289 ref.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 21--Power of entry, search and arrest without warrant--According to Section 21 of CNSA, 1997 if a police officer not below rank of Sub-Inspector receives an information or forms an opinion that any narcotic drug is kept or concealed in a house, he can enter therein even without a search warrant provided there is an apprehension that concealed substance will be removed or culprit will escape if time is consumed for having recourse to Court for obtaining search warrant. [Para 9] B
Maxim--
----“A communi observentia non-est recedendum”--It is a well entrenched principle that where a thing is provided in law to be done in a particular manner it had to be done in that manner and if not so done same would be unlawful--foregoing principle is arising out of maxim “a communi observentia non est recedendum”--Such rule becomes more inflexible in cases arising out of special enactments like CNSA, 1997 which carries stringent provisions for an accused. [Para 9] C
2003 SCMR 881.
Registration of a criminal case--
----Registration of a criminal case upon a complaint prepared at crime scene, since also is an important factor, thus its onus to prove also rests upon shoulders of none other than prosecution. [Para 10] E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265(c)--Statement of all witnesses--Statutory right--Appellant was indicted as juvenile by Sessions Judge--In accordance with scheme of Sessions trial provided in Chapter XXII-A, Cr.P.C., appellant was to be supplied with copies of documents mentioned in Section 265-C, Cr.P.C. at least seven days prior to framing of charge--After having gone through record of trial Court with utmost watchfulness, Court have noticed that needful towards compliance of Section 265-C, Cr.P.C. was not done--Non-compliance of Section 265-C, Cr.P.C. by trial Court would amount to vitiating whole trial. [Para 11] F
2017 YLR 1999.
Malik Abdul Rashid Khokhar, Advocate with Appellant.
Mr. Asghar Ali Gill, Deputy Prosecutor General for State.
Date of hearing: 29.3.2021.
Judgment
Ch. Abdul Aziz, J.--Saqib Ramzan (appellant) involved in case FIR No. 32/2016 dated 23.02.2016 registered under Section 9 (b) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as “CNSA, 1997”) at Police Station Abbas Nagar, Bahawalpur was tried by learned Sessions Judge/Judge Juvenile Court, Bahawalpur. Trial Court vide judgment dated 05.10.2016 proceeded to convict and sentence the appellant in the following terms:-
“Under Section 9 (b) of CNSA, 1997 to suffer rigorous imprisonment for 01-years & 06-months with fine of Rs. 11,000/-and in default whereof to further undergo SI for 04-months. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
Challenging his conviction and sentence, appellant filed the instant appeal.
2. Succinctly stated facts of the prosecution case as per contents of FIR (Exh.PB) are that on 23.02.2016 Saqib Ramzan (appellant), who was on physical remand in case FIR No. 175/2015 registered under Sections 379 & 411, PPC at Police Station Abbas Nagar, Bahawalpur, during interrogation made a disclosure before Ejaz Ahmad ASI (PW.5), Salamat Ali 594/C, Zulfiqar Ali 1776/C and Abdul Ghafoor PQR and in pursuance thereof led to the recovery of Charas weighing 504 grams lying in a pitcher of his residential room; that out of the recovered substance, Ejaz Ahmad ASI separated 10 grams for chemical analysis. Thereafter, he drafted complaint (Exh.PA) and forwarded it to the police station through Abdul Ghafoor PQR for the registration of formal FIR.
3. The matter after investigation was placed before the trial Court where prosecution in order to prove its case against the appellant produced five PWs, namely, Ghulam Rasool SI (PW.1) who upon the receipt of complaint (Exh.PA) chalked out the formal FIR (Exh.PB), Muhammad Aslam ASI (PW.2), who after the receipt of sample from the Moharrar deposited the same in the office of Punjab Forensic Science Agency, Lahore on 14.03.2016, Muhammad Sadiq 1987/HC (PW.3) who was performing duty as Moharrar/Station Clerk at the relevant time, Hafiz Farhat Abbas (PW.4) & Ejaz Ahmad ASI (PW.5) who are witnesses of recovery. After the conclusion of prosecution evidence, trial Court also examined the appellant under Section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant though did not make statement under Section 340(2) of Cr.P.C., however produced copy of petition under Section 491, Cr.P.C. along with order dated 20.02.2016 & 22.02.2016 as well report of bailiff (Exh.DA) and photo copy of FIR No. 175/2015 as Mark-A in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.
4. It is contended that the appellant is innocent in the case and he became the victim of police excess; that in fact the appellant was kept in unlawful custody of the police and when a petition under Section 491, Cr.P.C. was filed in this regard before the learned Sessions Judge concerned, his arrest was shown in a theft case; that Ejaz Ahmad ASI nourished grudge due to filing of the afore-mentioned habeas petition and subsequently implicated the appellant in the instant false case by planting Charas upon him; that admittedly, the case was investigated by Ejaz Ahmad ASI who was also the complainant in the case and on this score alone conviction awarded to the appellant is liable to be set-aside; that though reasonable doubt emerges from the recital of prosecution evidence, however, its benefit was not extended to appellant. With these submissions, it is prayed that conviction awarded to the appellant be set-aside.
5. On the other hand, learned Deputy Prosecutor General came forward with the submissions that the complainant police officer has no enmity with the appellant so as to falsely implicate him in this case; that the guilt of the appellant is reasonably established from the confidence inspiring prosecution evidence which also includes an independent private witness; that there is no bar for a complainant police officer to investigate the case; that despite lengthy cross-examination, the defence failed to get any benefit from the prosecution witnesses and that in the given circumstances, the conviction awarded to the appellant needs no interference.
6. Arguments heard. Record perused.
7. After having eloquently gone through the record, it is noticed by us that Saqib Ramzan (appellant) was initially arrested in a case registered vide FIR No. 175/2015 under Sections 379 & 411 at Police Station Abbas Nagar. During interrogation, Saqib Ramzan (appellant) made a disclosure about the presence of Charas weighing 504 grams in his house and later on led to its recovery which culminated into the registration of instant case.
8. It is noticed by us that FIR (Exh.PB) in this case was registered on the complaint of Ejaz Ahmad ASI (PW.5), who also assumed the role to investigate the case. In normal circumstances, there is no bar for a police officer to become complainant of the case and also to investigate it unless prejudice is not pleaded by the accused facing trial or if such police officer is having some grudge or vengeance against the accused. The rancour or hostility of the police officer can be perceived from record based on some confidence inspiring substance. Same rule was laid down by the Hon’ble Supreme Court of Pakistan in case reported as State through Advocate-General, Sindh v. Bashir and others (PLD 1997 Supreme Court 408), an observatory extract of which is being reproduced hereunder:
“There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person. The Court will have to apprise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same.”
(emphasis provided by underlining portion relevant to the proposition)
Since learned counsel for the appellant laid much emphasis on the point that the case was investigated by a police officer who was none other than the complainant, thus a prejudice was caused to the appellant, hence we have made an in-depth analysis of the record to comprehensively ponder upon the point so raised. It is observed by us that appellant statedly led to the recovery of Charas while being investigated in FIR No. 175/2015 registered under Sections 379 & 411, PPC at Police Station Abbas Nagar Bahawalpur. It is considered important to mention here that FIR No. 175/2015 was also being investigated by Ejaz Ahmad ASI (PW.5). A relative of the appellant, namely, Muhammad Rafique approached learned Sessions Judge Bahawalpur through a petition under Section 491, Cr.P.C. (Exh.DA) on 20.02.2016 with the grievance that Muhammad Saqib (appellant) is in unlawful custody of Abbas Nagar police since 14.02.2016. Accordingly, learned Sessions Judge appointed a bailiff who visited Police Station Abbas Nagar and on return filed a report mentioning therein that Muhammad Saqib stands arrested in case FIR No. 175/2015 vide entry No. 32 of Station Diary incorporated at about 7:40 a.m. on 20.02.2016. The instant case was registered three days thereafter on 23.02.2016 with the allegation of recovering 504 grams of Charas effected on disclosure and pointing out of the appellant. Inevitably, the filing of 491, Cr.P.C. petition about alleged unlawful detention of appellant must have irked Ejaz Ahmad ASI (PW.5). In our considered view, this is not a remote possibility that Ejaz Ahmad ASI (PW.5), in order to satisfy his grudge of being dragged to Sessions Court through a habeas corpus petition might have resorted to foisting Charas upon the appellant. It goes without saying that if this was the claim of Ejaz Ahmad ASI (PW.5) that appellant got recovered 504 grams of Charas and that too during the investigation of an earlier registered criminal case, then as a token of fair investigation he should have let some other police officer to probe the matter. Conversely, Ejaz Ahmad ASI (PW.5) himself performed each and every step towards the completion of investigation including drafting of complaint (Exh.PA), preparing of recovery memos (Exh.PC), site plan (Exh.PD), recording of 161, Cr.P.C. statements of the witnesses and forwarding of appellant to the judicial custody. Inevitably, it can be held that Ejaz Ahmad ASI ensured that no other police officer of higher rank should get an opportunity to dilate upon the genuineness or otherwise of the acclaimed recovery proceedings. In such circumstances, Ejaz Ahmad ASI (PW.5) violated the well embedded principle of natural justice which lays down that no one should be a judge of his own cause.
9. We have taken note of yet another aspect which besides wobbling the credibility of Ejaz Ahmad ASI (PW.5) also shatters the prosecution case. As mentioned above, the alleged disclosure was made by the appellant within the four walls of Police Station Abbas Nagar, wherein some other police officials of higher ranks were also posted. Unfortunately, Ejaz Ahmad ASI (PW.5) neither made any effort to hand over the investigation to some other police officer of higher rank nor endeavoured to get a search warrant. We feel persuaded to mention here that according to Section 21 of CNSA, 1997 if a police officer not below the rank of Sub-Inspector receives an information or forms an opinion that any narcotic drug is kept or concealed in a house, he can enter therein even without a search warrant provided there is an apprehension that concealed substance will be removed or the culprit will escape if time is consumed for having recourse to the Court for obtaining search warrant. For correct exposition of law, Section 21 of CNSA, 1997 is being reproduced hereunder:-
“Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent, authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person, is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may--
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-section (1), the officer referred to in this sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.”
The language of above referred provision is explicit and leaves no room for discussion that as a general rule ingress into a building is to be made for the recovery of narcotics after obtaining a search warrant, more importantly by a police officer not below the rank of Sub-Inspector. The requirement of obtaining search warrant can only be relaxed if there is an apprehension that afflux of time in having recourse to the Court will provide an opportunity of escape and removal of narcotics to accused. No doubt, the requirement of Section 21 of CNSA, 1997 can be dispensed with but only in exceptional circumstances, which are mentioned clearly in the foregoing provision and not in every case. The departure from the necessity of Section 21 of CNSA, 1997 on part of the searching officer and that too without any justifiable reason makes the recovery proceedings tainted. We feel no reluctance to hold that cherry-picking approach regarding applicability of a special statute can in no manner be appreciated. Even otherwise, it is a well entrenched principle that where a thing is provided in law to be done in a particular manner it had to be done in that manner and if not so done the same would be unlawful. The foregoing principle is arising out of maxim “a communi observentia non est recedendum”. Such rule becomes more inflexible in cases arising out of special enactments like CNSA, 1997 which carries stringent provisions for an accused. In somewhat similar circumstances, the Hon’ble Supreme Court of Pakistan in case reported as State through A.G. Sindh, Karachi v. Hemjoo (2003 SCMR 881) while dealing with the matter wherein the premises were searched by the Excise Inspector without search warrant, held as under:
“The Excise Inspector on the information, proceeded to conduct the raid and could conveniently obtain the search warrant from the Court of Special Judge but he having felt no necessity of such warrant, transgressed the authority of law which would make the search of house illegal. The learned Additional Advocate-General has not been able to convince us that in the facts of the case, the requirement of search warrant could be dispensed with.”
It unequivocally spells out from the plain reading of the prosecution case that the alleged disclosure was made by the appellant in the part of day wherein Courts were functional but despite that Ejaz Ahmad ASI took no step for getting search warrant from the Court. Even otherwise, nothing as such is discernable from record so as to draw an inference that had Ejaz Ahmad ASI (PW.5) approached the Court for getting search warrant, it would have involved danger of removing the narcotics from the premises. Likewise, despite the presence of other officials of higher rank in the police Station, Ejaz Ahmad ASI opted against intimating any of them for doing the needful of supervising the recovery proceedings. Regarding the afore-mentioned anomalies the case of prosecution is found by us to be in eternal silence as no acceptable explanation is noticeable from record. Inexorably, the facts mentioned above convincingly demonstrate the malice of Ejaz Ahmad ASI (PW.5) which was so deep rooted that he thought it better to investigate the case himself for appropriately grilling the appellant. Besides giving a clue of some sinister design behind the registration of FIR, the circumstances mentioned above also lead us to believe that Charas was planted to wreck vengeance against appellant which was arising out of a habeas corpus petition filed on his behalf. In case reported as Sadiq Imran v. The State (2020 YLR 289), learned Division Bench of Hon’ble Peshawar High Court while dealing with the matter of an accused, who had previously exchanged hot words with the complainant police officer, held as under:
“Keeping in view the statements of PW-5 and accused-appellant, we have come to the conclusion that the complainant was already carrying a grudge against the accused-appellant and the instant FIR was lodged against the accused-appellant with ulterior motives, thus the conviction and sentence recorded by the learned trial Court cannot be sustained.”
10. We have also taken note of the fact that according to prosecution case the complaint (Exh.PA) was drafted at the spot and later dispatched to police station for the registration of formal FIR through Abdul Ghafoor PQR. As per settled principles of criminal jurisprudence, the prosecution is legally obliged to prove every bit of its case through some legally admissible evidence. It goes without saying that the existence of an incriminating fact is not to be presumed or inferred by the Court rather is to be proved during trial by the prosecution. Registration of a criminal case upon a complaint prepared at crime scene, since also is an important factor, thus its onus to prove also rests upon the shoulders of none other than the prosecution. In the foregoing circumstances, the evidence of Abdul Ghafoor PQR was also essential to prove that complaint (Exh.PA) was actually prepared at the spot and later transmitted to police station upon which FIR (Exh.PB) was registered. Strangely, afore-mentioned Abdul Ghafoor was neither cited witness in report under Section 173, Cr.P.C. nor appeared in the dock during trial. From the absence of any explanation for withholding the evidence of Abdul Ghafoor PQR, we are leaned to hold that probably he was not willing to become a false witness. While dealing with the issue of non-production of police constable who brought the complaint to the police station for the registration of FIR, the Hon’ble Supreme Court of Pakistan in case reported as Minhaj Khan v. The State (2019 SCMR 326) held as under:
“……… the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons.”
11. It is further observed that the appellant was indicted as juvenile on 25.06.2016 by the learned Sessions Judge. In accordance with the scheme of Sessions trial provided in Chapter XXII-A, Cr.P.C., the appellant was to be supplied with the copies of documents mentioned in Section 265-C, Cr.P.C. at least seven days prior to framing of charge. After having gone through the record of trial Court with utmost watchfulness, we have noticed that needful towards the compliance of Section 265-C, Cr.P.C. was not done. The non-compliance of Section 265-C, Cr.P.C. by the trial Court would amount to vitiating the whole trial. While holding so, we are guided by the observation of learned Division Bench of this Court in the case of Muhammad Tariq and another v. The State and others (2017 YLR 1999) wherein it was held as under:
“It is a statutory right of an accused under Section 265-C (c) to be provided the statements of all witnesses recorded under Sections 161 and 164, Cr.P.C. and omission to comply with the said provisions of law, would vitiate the whole trial and that being so because the accused without having recourse to the record, would not be in a position to set up his defence.”
If any further reference in this context is needed that can be made to the cases reported as Mst.Nusrat Mai (Tahira Sultana) and another v. The State (1997 MLD 2869), Nadeem Ahmed Khan and others v. The State (2007 PCr.LJ 233), Muhammad Siddique v. The State (2009 YLR 1007) and Hakam Deen v. The State through Advocate-General and 15 others (2005 YLR 2032).
12. The frailty of recovery proceedings stands exposed from a plain review of the statements of supporting witnesses. It is noticed that one of the recovery witnesses, namely, Hafiz Farhat Abbas (PW.4) deposed that the recovery memo (Exh.PC) was signed by him while standing in the street. On the other hand, Ejaz Ahmad ASI (PW.5) claimed to have got signed the recovery memo in the Courtyard of the house. The conflict between the statements of afore-mentioned witnesses became further conspicuous when seen in context of an unequivocal denial of Ejaz Ahmad ASI (PW.5) about obtaining of signatures on the recovery memo in the street. Similarly, Hafiz Farhat Abbas (PW.4) described the police contingent to be comprising upon 7/8 police officials, whereas Ejaz Ahmad ASI (PW.5) stated to be in the company of two constables only.
13. The crux of the afore-discussion is to the effect that prosecution remained fail to establish the guilt of Saqib Ramzan (appellant) with regard to the alleged recovery of 504 grams of Charas beyond any shadow of doubt. Therefore, we accept Criminal Appeal No. 485 of 2016 while extending benefit of doubt to Saqib Ramzan (appellant); he stands acquitted of the charge by setting aside his conviction and sentence. Since appellant is on bail, hence his sureties stand discharged from their bail bonds.
(A.A.K.) Appeal accepted
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