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Criminal Petition No. 37‑K of 1986, decided on 27th August, 1986.

(On appeal from the judgment and order of the High Court of Sind at Karachi dated 3‑4‑1986 passed in Criminal Appeal No. 14 of 1986).

‑‑‑Art. 185(3)‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3, 4 a 21(b)‑‑Sind Prohibition Rules, 1979, R.4‑‑Investigation‑ Illegality committed in course of investigation could not affect competence and jurisdiction of Court‑‑Offence against accused under Art. 4 investigated by a Police Officer who was not one of designated officers for purpose of Art. 21(b) of the Order‑‑Such illegality, held, did not affect jurisdiction of trial Court.

‑‑‑Art. 185(3)‑‑Qanun‑e‑Shahadat Ordinance (10 of 1984), Arts.3 a 14‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 a 4‑‑Petition for leave to appeal‑ ‑Tazakiat‑us‑ Shahud‑‑Non‑observance of procedure‑‑Witnesses not cross‑examined on question of their competence under Art. 3 of Qanun‑e‑Shahadat in trial Court‑‑No objection thereto, however, was raised on behalf of accused at trial‑‑Leave to appeal refused.

K.M. Nadeem, Advocate Supreme Court instructed by Mr. Nazir Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Abdul Sattar Shaikh, Additional Advocate‑General ‑instructed by S.M. Abbas. Advocate‑on‑Record for the State.

Date of hearing: 27th August, 1986.

The petitioner was apprehended by a police party on spy information and 15 grams of Heroin was recovered from his pocket. An F.I. R. was lodged by Assistant Sub‑Inspector of Police under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter to be referred to as the Order). The petitioner was tried on charges under the above‑mentioned Articles of the Order by the Additional Sessions Judge, Shariat (West), Karachi. The Chemical Examiner's report in respect of the Heroin recovered from the petitioner was in positive. The petitioner was convicted by the trial Judge under Article 4 of the Order vide his judgment dated 6‑2‑1986 and sentenced to suffer rigorous imprisonment for two years, 15 stripes and fine of Rs.15,000 or in default of payment of fine further rigorous imprisonment for six months. The petitioner filed appeal in the High Court which was dismissed with the direction that benefit of section 382‑B, Cr. P. C. may be given to the petitioner. Hence this petition seeking leave to appeal.

2. It was contended by the learned counsel for the petitioner that police had no power to investigate, arrest and prosecute the petitioner for the offences in question because under Rule 4 of the Sind Prohibition Rules framed under the Order a police officer is not shown as one of the designated officers for the purpose of clause (b) of Article 21 of the Order. It was further contended that the learned trial Judge did not follow the procedure of Tazkiat‑us‑Shahud as required by Article 3 of the Qanun‑e‑Shahadat Order, 1984 read with article 14 thereof.

3. As regards the first contention, suffice it to say that the proposition of law is well settled that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court. The fact that the learned trial Court had the requisite jurisdiction in the matter was not disputed by the learned counsel.

4. As regards the second contention regarding procedure of Tazkiat‑us‑Shahud not having been followed in the case, we find that the witnesses were not cross‑examined on the question of their competence under Article 3 of the Qanun‑e‑Shahadat in the trial Court nor any objection in this regard was raised on behalf of the petitioner at the trial. In this view of the matter we are not inclined to grant leave in this case. The petition thus fails and is dismissed accordingly.

M . Y . H . Petition dismissed.

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