Munawar Hussain v. State (Ajmal Mian, J)

                                                   

WASEEM LAW ASSOCIATES:

[ 1993 ]                                                 Munawar Hussain v. State

                                                                     (Ajmal Mian, J)

complied with. In this view of the matter, there is no force in this petition. It is, therefore, dismissed.

A.A./M-1723/S.                                                                                                               Petitiondismissed.

     

                                                             1993 SCMR 785

                                                       [Shariat Appellate Bench]

                       Present: Ajmal Mian, Pir Muhammad Karam Shah and

                                         Maulana Muhammad Taqi Usmani, JJ

               MUNAWAR HUSSAIN alias BOBI and 2 others---Appellants

                                                                 versus

                                              THE STATE---Respondent

Criminal Appeals Nos.19(S) to 21(S) of 1989, decided on 2nd February, 1993.

(On appeal from the judgment, dated 22-12-1988 of the Federal Shariat Court, Islamabad, passed in Criminal Appeals Nos. 194-I of 1987, 266-L of 1987 and 311-L of 1987).

(a) Constitution of Pakistan (1973)---

Art.185---Appeal before Supreme Court---None appeared for the appellant and appeal was also time barred by 13 days---Supreme Court, condoned the delay in the appeal and also examined the case of appellant on merits as appeal was from a common judgment and cases of two other appellants who were represented and their cases were time-barred were to be examined.---[Condonation of delay]. [p. 791] A

(b) The Law of Shahadat (10 of 1984)---

----Arts.129, illus. (b) & 16---Evidence of accomplice---Necessity of corroboration---Illustration (b) of Art. 129 is to be read with Art. 16 of the Qanun-e-Shahadat---Conviction can be recorded on the basis of evidence of an accomplice but the Court, as a rule of prudence, seeks corroboration in material particulars---Exception to the rule.

No doubt that the illustration (b) to Article 129 of the Qanun-e-Shahadat provides that an accomplice is unworthy of credit, unless he is corrborated in material particulars. However, the above illustration of Article 129 of the Order is to be read with Article 16 of the Order, which lays down that an accomplice shall be a competent witness against an accused person except in the case of an offence punishable with Hadd and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. In other words, in terms of Article 16, a conviction can be recorded on the basis of evidence of an accomplice but the Court, as a rule of prudence, sacks corroboration in material particulars. [p. 791] B

As a rule of prudence, Court seeks corroboration on material particulars by independent corroborative piece of evidence in case the main witness is an approver or an accomplice, though in terms of Article 16 of the Order, even conviction can be founded on the evidence of an accomplice without any corroboration if the Count is satisfied with the truthfulness of his evidence. [p. 793] C

Abdul Qadir v. The State PLD 1956 SC 407; Muhammad Ayub Khuhro v. Pakistan through the Ministry of Interior, Government of Pakistan and 2 others PLD 1960 SC 237; Muhammad Nawaz and another v. The State PLD 1961 Lah. 880; Dr. Muhammad Bashir v. The State PLD 1971 SC 447 and Jan Muhammad v. The State 1968 PCr.LJ 1625 ref.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts.129, illus (b) & 16---Criminal Procedure Code (V of 1898), Ss.337 & 494---Accomplice was convicted in the offence which was the subject-matter of prosecution in the case which had arisen out of one transaction---Accomplice who was convicted by a foreign Court was brought to Pakistan on the basis of the request made by the Government of Pakistan while he was serving the sentence and was to be taken back to the prison in foreign country for serving out his remaining sentence---Contention was that since accomplice was neither pardoned under S.337, Cr.P.C. nor he was discharged under S.494, Cr.P.C. and thus he was not an accomplice witness even as an accomplice-Such an accomplice, held, could not be equated with an ordinary accomplice as for offence in question he was convicted by a foreign Court and awarded sentence and the question of pardoning him under S.337, Cr.P.C. or discharging him under S.494, Cr.P.C. was not very much relevant.---[Accomplice]. [p. 794] D

Keshav Vasudeo Kortikar v. Emperor AIR 1935 Bom. 186 and Nga Thein Pe v. The King AIR 1939 Rang. 361 ref.

(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

Art.3-Customs Act (IV of 1969), Ss.156(1) & 178---Smuggling of narcotics-Nature and appreciation tion of evidence-Approach of the Court should be dynamic and Court should overlook technicalities in the larger interest of the country and the public at large---Court has to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded.

The Courts cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and, therefore, generally, they manage to cause dents in the prosecution evidence. In such like cases, which are not only damaging the image of the nation in the comity of nations, but are making our young generation addicts to narcotics, the Court's approach should be dynamic and they should overlook technicalities in the larger interest of the country and the public at large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded. [p. 797] E

         Qazi Muhammad Saleem, Senior Advocate Supreme Court, Munir Hussain Bhatti, Advocate Supreme Court for Appellant (in Cr.A. No.19(S).  

         Malik Rab Nawaz Noon, Advocate Supreme Court for Appellant (in Cr.A. No.20(S) of 1989).

Qazi Muhammad Saleem, Senior Advocate Supreme Court for Appellant (in Cr.A. No.21(S) of 1989).             Hafiz S.A. Rehman, Advocate Supreme Court for the State (in all

Appeals).

         Dates of hearing: 1st and 2nd February, 1993.

                                                JUDGMENT

AJMAL MIAN, J.-The above three appeals are with the leave of this Court and are directed against the judgment, dated 22-12-1988 passed by a Division Bench of the Federal Shariat Court in Criminal Appeals Nos. 194/1 of 1987, 266/L of 1987 and 311/L of 1987, filed by the present three appellants in the above three appeals against the following convictions and sentences recorded by the learned Special Judge Customs, Lahore, Camp at Rawalpindi, in Special Case No.154/4 of 1986:--

72. Accordingly 1 convict all the three accused namely, Hamid Hasnain, Tahir Mahmood Butt and          Munawar Hussain under item (8) subsection (i) of section 156 read with section 178 of the                      Customs Act, 1969 and under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979. I find            that there is no mitigating circumstance, in this case. All the three accused are sentenced to ten                years' rigorous imprisonment cach under section 156(1)(8) read with section 178 of the Customs            Act, 1969, and for five years each under Article 3 of the Prohibition (Enforcement of Hadd) Order,         1979. Both the sentences shall run concurrently. All the three accused are further sentenced to pay           a fine of Rs.1,00,000 (onc lac) cach and in default of payment of this amount, to undergo                         imprisonment for a further period of six months cach. The accused persons shall be entitled to the           benefit under section 382-B, Cr.P.C.

The learned Judges of the Division Bench of the Federal Shariat Court by the above judgment dismissed the aforesaid appeals and maintained the above convictions and sentences.