Manzoor vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A No.506-P/2014

Date of hearing: 11.03.2015

Appellant (s) : Manzoor by Syed Inayat Shah Bacha, Advocate.

Respondent (s) : State by Syed Sikandar Hayat Shah,

AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This appeal

has been filed by appellant Manzoor against the judgment dated 07.08.2014, passed by learned ASJ-IV/Judge Special Court, Mardan, whereby he has been convicted under section 9 (c ) Control of Narcotic Substances Act, 1997 and sentenced to undergo 05 years R.I. and to pay a fine of Rs.50,000/- or in default thereof to undergo 06 months S.I. further. Benefit of S.382-B Cr.P.C. has been extended to him.

2.The prosecution case is that on 11.01.2014, Muhammad Ali Khan ASI, on receipt of spy information qua trafficking of narcotics by Manzoor (appellant-convict herein), from Peshawar to Mardan, he along with other police officials *M.Siraj Afridi P.S. D

conducted a barricade on bypass road, in front of Sarwar Abad when in the meantime, at 1200 hours, they noticed appellant coming on foot holding a cloth bag in his hand, who was intercepted. On search of the bag, four packets charas Pukhta weighing 4 Kilograms, were recovered, out of which 5/5 grams were separated from each packet and sealed in parcel for the purpose of chemical analysis by the FSL. The remaining quantity was sealed separately and taken into possession vide recovery memo Exh.PW.2/1. Muhammad Ali ASI (PW.3), drafted murasila Exh.PA/1 on the basis of which FIR Exh.PA No.36 dated 11.01.2014 under section 9 (c ) CNS, Act, 1997 was registered against the appellant in Police Station City Mardan. Sakhi Sultan Khan SI (PW.4) conducted investigation in the case. He prepared site plan Exh.PB at the pointation of complainant/Seizing Officer, produced the accused before Illaqa Judicial Magistrate for his physical remand, recorded statements of the PWs, placed on file FSL report about the samples Exh.PZ and copies of FIRs relating to previous history of the appellant in identical cases. On completion of *M.Siraj Afridi P.S. D

investigation, he handed over the case file to SHO, who submitted challan against the appellant.

3.On receipt of challan by the learned Trial Court, appellant was summoned and charge sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as five witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath under section 340 (2) Cr.P.C. nor opted to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant as mentioned above, hence, this appeal.

4.Learned counsel for the appellant argued that prosecution case is a cook and bull story and appellant has been made scapegoat; that despite that the place of incident has been shown as a general road and the complainant/Seizing Officer had prior information, no independent witness has been cited to the alleged recovery proceedings, so much so that *M.Siraj Afridi P.S. D

neither the name of the informer has been disclosed in the FIR nor has he been cited as prosecution evidence. At this juncture, learned counsel placed reliance on this court judgment in case titled, “Sardoor Khan Vs the State” (2013 YLR 1874), and contended that in the case (supra) 40 Kilograms narcotics had been recovered but due to non- examination of the informer, accused had been acquitted, therefore, he also stressed for acquittal of the appellant in light of ratio of the judgment (supra). He further argued that testimony of the PWs who are police officials are suffering from material contradictions and discrepancies creating serious doubt about the alleged recovery but the learned Trial Court while oversighting the same wrongly held appellant guilty of the offence. He contended that the impugned judgment of the learned Trial Court being against the law, facts and material available on record is liable to be reversed.

5.Conversely, learned AAG contended that appellant has been nabbed by the Seizing Officer red handed and recovery of 4 Kilograms charas has been effected from his direct possession; that PWs no doubt are police officials, but *M.Siraj Afridi P.S. D

they have furnished straightforward and truthful account of the incident and the defence failed to create any dent in their statements; that PWs have no enmity or ill will with the appellant to falsely implicate and in absence of any ill will or enmity, their straightforward and confidence inspiring testimony cannot be discarded on mere ground that they belong to Police Force; that by virtue of S.25 of the CNS, Act, non-association of private witness to the recovery proceedings would not be fatal to the prosecution case; that under Article 8 of the Qanun-e-Shahadat Order, 1984, a police officer cannot be compelled to disclose the name of the informer who conveyed information as to commission of offence; that positive FSL report further supplements the prosecution version. He while supporting the impugned judgment, sought dismissal of the appeal.

6.We have heard the arguments and perused the record carefully.

7.In support of his version Muhammad Ali ASI, the complainant/Seizing Officer appeared as PW.3. In his statement he reiterated the same story as furnished by him in *M.Siraj Afridi P.S. D

murasila report. Suleman FC No.1494, marginal witness to recovery memo Exh.PW.2/1 appeared as PW.2. He substantiated the version of complainant ASI/Seizing Officer by deposing that after overpowering the appellant, 4 Kilograms charas was recovered from a cloth bag in his possession by the Seizing Officer in his presence, out of which 4/4 grams were separated for the purpose of chemical analysis by the FSL and sealed in parcel while the remaining narcotics were sealed separately on the spot. He testified that recovery memo Exh.PW.2/1 was prepared and he signed the same on the spot. Both the PWs have been subjected to taxing cross-examination, but nothing beneficial to defence could be extracted from their mouths. No doubt, they are police officials but they have made consistent statements on material aspects of the occurrence and defence failed to point out any discrepancy in their testimony. They supported recovery of 4 Kilograms charas from possession of the appellant, referred to above at given date, time and place.

Incriminating statements of both these witnesses on oath would be enough to connect the appellant with commission of *M.Siraj Afridi P.S. D

crime. Defence has not brought any shred of evidence to show as to why the PWs would involve the appellant falsely, especially when none from them has any enmity with him.

Sakhi Sultan Khan SI (PW.4) further supplements the version of the complainant. He prepared site plan Exh.PW.Exh.PB at the instance of complainant/Seizing Officer, and received the result of the FSL qua samples which is Exh.PZ. So far as non- association of private witnesses with the recovery proceedings is concerned, by virtue of section 25 of the Control of narcotic Substances Act, 1997, non-citing of a public witness in recovery proceedings would not be fatal to prosecution case.

No reason exists to believe that appellant has falsely been involved in the case. Prosecution has fully proved that appellant at the relevant time was nabbed along with 4 Kilograms Charas wrapped in a cloth bag in his possession.

The recovery has been squarely proved by the prosecution through overwhelming evidence of the PWs beyond any reasonable doubt and the Trial court has rightly believed the testimony of the PWs. The positive FSL report Exh.PZ qua sample further corroboration the version of the prosecution.

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No material discrepancy having been noticed in the testimony of prosecution witnesses.

8.The argument of the learned counsel for the appellant qua non-disclosure of the informer and non-citing him as prosecution witness, is against the law, because Article 8 of the Qanun-e-Shahadat Order, 1984 provides a privilege to Police Officer to the extent of refusal to disclose the place or source of receipt of information as to the commission of offence. Article 8 of the Qanun-e-Shahadat Order, 1984, runs as under:-

“Article 8. Information as to commission of offences:- No Magistrate or Police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue-Officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue”.

The thread bare reading of the Article ibid, reveals that a Magistrate or Police Officer or a Revenue Officer cannot be compelled to say whence he has got any information as to the commission of an offence. This Article provides a limited privilege to the extent of refusal to disclose from what place or source the information as to the commission of offence *M.Siraj Afridi P.S. D

has been received. The rule has been enacted in the interest of detection of crime. Article 8 of the Qanun-e-Shahadat Order, which is based upon public policy to discover and unearth the crime, protects the name of a spy or secret information to be disclosed, therefore, under Article 8 of the Order ibid, the I.O. was not bound to disclose the name of the informer and to cite him as prosecution witness. Article 8 entitles a police officer to refuse to disclose the source of his information as to the commission of any offence, while public policy demands that no adverse inference be drawn against the prosecution for withholding an informer from the witness box.

9.We have thoroughly perused the judgment of this court relied upon by the learned counsel i.e. “Sardoor Khan Vs the State” (2013 YLR 1874). Accused in the case supra has not been acquitted on the sole ground of non-examination of informer, albeit, non-execution of information has been taken one of the ground of acquittal.

The findings of this court in the judgment (supra) qua non- production of the informer in the witness box, with utmost *M.Siraj Afridi P.S. D

respect in our humble view, being based on improper assistance, is against the statute i.e. Article 8 of the Qanun-e- Shahadat Order, 1984, referred and discussed above, therefore, the same being judgment in per incuriam, shall have no binding effect, as law of precedent is not applicable to per incuriam decisions, which carry no binding force. The Hon’ble Supreme Court in case titled, “Gulshan Ara Vs the State” (2010 SCMR 1162), has defined “judgment per incuriam” in the following words:-

“Decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision, or when the decision is given in ignorance of the terms of statute or rule having statutory force”.

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The apex Court in case titled, “Fasih ud Din Khan and others Vs Government of Punjab and others” (2010 SCMR 1778), while defining per incuriam, held the following in Paragraph No.10 of the judgment:-

“The word per incuriam means “carelessness” as held by this Court in “Sindh High Court Bar Association V Federation of

Pakistan” (PLD 2009 Supreme Court

879). It is also settled principle of law that once the Court has come to the conclusion that the judgment was delivered per incuriam.

Such judgment itself is without

jurisdiction as per incuriam, therefore, learned High Court erred in law to give due weight to said observation without application of mind....”.

10.Taking guidance from the judgment of the apex Court (supra), any judgment, which is against a statute or a precedent or given as a result of lack of care or through inadvertence shall be said to be a judgment in per incuriam *M.Siraj Afridi P.S. D

and the law of precedent is not applicable to per incuriam decision. Reference in this regard can be made to “Inland Revenue Appellate Tribunal of Pakistan Vs Rupali Polyester LTD” (2014 PTC 353). Moreso, where the terms of a statute or ordinance are clear, even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to the meaning of the enactment. Guidance in this regard may be derived from (AIR 1916 Privy Council

11.For what has been discussed above, the

appellant could not take any benefit from the judgment of this court, relied upon. As discussed earlier, the prosecution has successfully established the guilt of the appellant through cogent and confidence inspiring evidence and the learned Trial Court by properly appreciating the evidence available on file, reached to a just and right conclusion by holding the appellant guilty of the offence, therefore, his conviction under section 9 (c ) of the Control of Narcotic Substances, Act, 1997, is maintained. However, the appellant is a young boy of 23 years and recovery of 4 Kilograms charas has been *M.Siraj Afridi P.S. D

effected, therefore, we while taking lenient view, reduce his sentence from 5 years R.I. to 4 years R.I. whereas the sentence of fine shall remain intact. Benefit of S.382-B Cr.P.C. as extended by the learned Trial Court to the appellant, shall also remain intact in his favour.

12.With the above modification in the sentence of the appellant, this appeal stands dismissed.

Announced.

JUDGE

JUDGE

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maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.

5.Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below are set aside and the matter is remanded to the learned Trial Court with the direction to frame a specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure *M.Siraj Afridi P.S. D

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