Syed Muhammad Jamal Uddin Kazmi Vs Federation Of Pakistan Through Presedent Of Pakistan And Others

IN THE FEDERAL SHARIAT COURT

( Appellate Jurisdiction )

PRESENT:

HON.MR.JUSTICE ABDUL KARIM KHAN KUNDI

HON.MR.JUSTICE DR.FIDA MUHAMMAD KHAN.

CRIMINAL APPEAL NO.170/1 OF 1989.

Javed Akhtar alias Yasin son of Haji Allah Ditta, r/o Ward No.13 Jhanda, Gujar Khan, District Rawalpindi.

Appellant

Versus

The State Respondent

Counsel for the Malik Rab Nawaz Noon, appellant Advocate

Counsel for the Mr.Mohammad Aslam Uns State Advocate.

FIR N o . , date & 5,

WI 4-1-1989,

* * - w w v , % Police Station Gujar Khan, Rawalpindi.

Date of order of 10-9-1989 trial court

Date of Institution 8-10-1989 Date of hearing 11-12-1989 Date of decision 11-12-1989 -o-

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JUDGMENT :

ABDUL KARIM KHAN KUNDI,J.-By a judgment and order dated 10.9.1989, learned Additional Sessions Judge, Rawalpindi found Javed Akhtar alias Yasin appellant guilty on the charge of possession of 13 grams of heroin powder, recovered from him by the raiding party headed by Riaz Hussain Shah, ASI on 4.1.1989 at 12.15 :a.m near old cinema Caffee Club Gujar Khan from the right side pocket of his coat during his personal search and accordingly convicted and sentenced him to 3§ years R.I, 15 stripes and fine of Rs.2,000/- or in default of payment of fine 6 months R.I further, also extending him the benefit under Section 382-B Cr.P.C.

2.Prosecution examined Zahoor Hussain Shah ASI (PW.2) who recorded formal FIR and also received two sealed parcels of heroin from Riaz Hussain Shah (PW.4 He had afterwards handed over the sample parcels to

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Mohammad Afzal-(PW.l) for onward delivery to Chemical Examiner wherefrom a report in positive was received.

Ahmad Bakhsh, Constable (PW.3) and Riaz Hussain Shah were produced who (PW.4), the I.O/eonducted the raid, apprehended the appellant in front of old cinema, searched his person r v. and recovered 13 grams of heroin from the side pockei

of his coat and a recovery memo to the effect was prepared by PW.4 which was witnessed by PW.3 and another FC Inyat Ullah PW (abandoned).

3.During- the cross-examination of the P.Ws as well in his statements under Sections 342 and 340(2) Cr.P.C, the appellant adopted a line of defence that he was a businessman running a bakery shop, also income tax payer and that the police personnel, particularly % a z Hussain Shah (PW.4) used to make bakery purchases from him who still owed him Rs.60/- and on demand he incurred his annoyance. He alleged that he was involved in some five false cases, out of in seme four cases he earned acquittal while the fifth case was the one in hand f He stated that no raid was conducted at all and that a fake recovery was planted on him. He also placed on file photostat copy of the licence of his shop and photostat copies of the receipts of payment of tax.

4.At the very out-'Set Malik Rab Nawaz Noon, learned counsel for the appellant raised a preliminary objection that Oaths Act, 1873 has since been amended by Ordinance No.XXVII of 1981 and at present Section 6 reads that where the witnesses or interpreters are Muslims thev shall make Oath while Section 5 of s

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Oaths Act reads that Oaths and affirmations shall be made by witnesses and interpreters with exception where a witness is a child under 12 years of age, not understanding the nature of oath or affirmation.

Section 7 of the Oaths Act reads that all oaths and affirmations made under Section 5 shall be administered according to the forms prescribed by the High Court from time to time. In the context he referred to PLD 1984 Peshawar 56 (Muhammad Tahir Versus the State) in which the above amendments were highlighted andwas held that eversioce the amendments having become - effective Muslim witnesses were to be examined on oath ffl; H-* P^O r ’l iast-ead of— soTennr~af44«nation ■ fhe form of oath prescribed by the High Court in Chapter 12 A of the High Court Rules and Orders was ajfcsp not found - - v a' proper fohiV --b(b be used by Courts for a Muslim witness and accordingly a workable solution was proposed that form of oath commonly used by Muslim in area 4* concerned for resolving their disputes or differences may be used by Courts until appropriate form is prescribed by the High Court. In the context reference was a lso made to th e forms of solemn a ffirm a tio n s a id oaths prescribed by the High Court and the sase Terre

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found to relate to Jurors and not witnesses T-tre—f-eym— ef solemn afflrmat ion -i; it'e'Xourts

ie "On my honour, I shall state the truth, nothing but the truth” . The form of oath for Muslim witnesses in vogue is "I swear by Allah that I shall state the truth, nothing but the truth". In support nf--^hTr'ft?rtft"-rrf”-oath also f o r Musi~inr~wi-t n o s o c ts- r e l e r e h c e ~w a s /fflad e ^ o ~ ‘,l >!LI)'~'l9 8 8 f'lA P^sliawaj?—6 5 - ^K han S h e r V e r s u s M s t . K a b l a and a n o t h e r P J2 r r p v J £ h f ivV -1 Ib- the paid Judgment w ijfch reference^to the Holy Quran down and Sunnah it was laid^that t£e general oath was one to swear by Allah only to wh ich—there may be added corroboration by the Qazi as for example "I swear by Allah who sent Prophet Mohammad (Peace be upon Him) as a Last Messenger with the Holy Quran". Further reference was made to the Qanun-E-Shahadat Order 19S4 that where in the preamble it is laid down_/the Order was- promulgated with a purpose to revise, amend and 1 consolidate the law of evidence so as to bring it in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. Reference was made to Article 44 of the said Order providing that all accused persons, including an accomplice, shall be liable to cross-examination. There was made a

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corresponding amendment in Section 340(2) by Ordinance XII of 1985, obliging a person accused of an offence before a Criminal Court to give evidence on oath in disproof Qf the charges and allegations made against him at the trial. In the process the accused will also be cross-examined by the prosecution/coraplainant. It was canvassed that the evidence of a prosecution witness examined on solemn affirmation should bear lesser sancitity and authenticity as compared to a statement of an accused examined on oath in disproof of the charges and allegations made against him. Reference was a l s o .

made to Section 13 of the Oaths Act which provides that proceedings and evidence shall not be invalidated by omission of oath and irregularity. He was .however to draw a line of distinction between the invalidation of the proceedings and the factum of sanctity and measure of evidentiary value of a statement on oath vis-a-vis a statement on solem affirmation. Court would not, rather, could not straight away repel the argument advanced by the learned counsel for the appellant. In the context it was also pointed out that jBSft&dPSt in the Province of Punjab witnesses are still examined on solemn affirmation, perhaps due to the non-prescribing

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of the form of oath by the Lahore High Court. To meet the ends of justice and the demands of the propriety, this Court would send a request to the Lahore High Court to prescribe a form of oath for Muslim witnesses to facilitate their examinations in accordance with law.

5.Reference was also made to Article 203J (2)(b) of the Constitution of the Islamic Republic of Pakistan 1973 which vests a power in the Federal Shariat Court to make rules in respect of the form of the oath to be made by a Jurisconsult, expert or witness appearing before the Court. On examination of such form prescri-bed by the Federal Shariat Court it was found that the same related m^'re to Jurisconsults, experts and witnesses to assist in the interpretation' and not to witnesses of occurrence in the Hudood Cases. Federal Shariat Court has not been found vested with powersunder the Constitution or law to make rules prescribing a form of oath for witnesses in Hudood Cases and consequently, there is a greater necessity for request to be made to the Lahore High Court to prescribe a form since of oath for Muslim witnessesybesides the provisions of OathgAct in hudood cases particularly all witnesses are to be examined on oath and not solemn affirmation.

a Pnmino- to the facts of the case: on the relit

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of the alleged recovery of heroin powder from the possession of the appellant there were pointed out discrepancies and contradictions in the ocular evidence furnished by PW.3 and PW.4 as the former reported that on 4.1.89 on a spy information that the appellant was selling heroin near Caffee Club, a raid was conducted and on his personal search,first stating 15 grams again ^ stating 13 grams heroin, was recovered from the pocket of the coat of the accused which was taken into possession and made into a sealed parcel. On interrupticc by the Deputy District Attorney the witness stated that two parcels were prepared one of 5 grams and the other of remaining heroin powder. He further stated that raid was conducted on the appellant in front of the Caffee while earlier in his statement under Section 161 Cr.P.C he has stated that the raid was conducted on the old cinema. He has further stated that before the I raid they had checked some 10/15 buses and one or two S' wagons. He has also stated that nothing else was recovered from the appellant like that of cash etc. Hiaz Hussain Shah (PW.4) had stated that on the night of 3/4 January,1989 he had arranged a raiding party and at 12.15 A.M. the appellant was. raided and the contraband powder was recovered from him. He stated that no bus cr vagzr

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was-i checked and searched by the raiding party before the raid in question. He stated that some cash was found in the pocket of the appellant, say about 10/15 rupees but the same was not taken into possession. The witness admitted ' that no fake customer was sent to purchase also heroin from the appellant before the raid. He/admitted that shops around the place of raid were opened and that he asked some persons to join him in the investigation but they refused. This fact was>however, not mentioned in his tMioi and on this point Ahmad Bakhsh PW had also contradicted him, stating that no person was asked to join the investigation. The 1.0 denied owing some amount to the appellant and having incurred his annoyance and displeasure over the demand of the amount from him. He has, however, admitted that there were registered cases against the appellant during his posting at the stationrtuthedid not know if the { appellant has been acquitted in those cases. On the other hand the appellant on oath stated that the 1.0 owed him an amount of Rs.60/- as price of bakery items he which/deraanded to his annoyance and ’ consequently he was

involved in some five false cases, out of he was acquitted in four cases while the fifth case was the

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one in band.

7.Appreciating the evidence as above we could not persuade ourselves to maintain the conviction on the charge of possession and recovery of heroin powder from the appellant in a raid since there was not sent a fake customer to purchase heroin from the appellant; there was not recovered any cash from the appellant as sale proceeds of the heroin; no person from public was joined to witness the recovery of heroin from the appellant at-the time of his personal search although persons from public were admittedly present around; the discrepancy in the interse evidence furnished by 1.0 and the marginal witnesses of the recoveryj all police personnel and that last but not the least/the prosecution evidence was furnished by two police personnel only, not wholly and dis-interested.Vwhose evidence was aiso; recorded f on solemn affirmation instead of oath while in rebutal there was given evidence by the appellant on oath with a ring of truth, imputing malafides to the Investigating Officer. Resultantly we would extend a benefit of doubt to the appellant, accept his appeal, order his acquittal

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and since he is on bail his bonds are,therefore, discharged.

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ABDUL KARIM KHAN KUNDI,JUDGE.

Fit for reporting.

(Abdul Karim Khan Kundi,J)

DR.FIDA MUHAMMAD KHAN,JUDGE.

Islamabad, 11th of December, 1989. /*Abdul Salam*/