2004 P Cr (PLP)

M. BILAL KHAN, J.

This Criminal Appeal bearing No.26 of 2002 is directed against the judgment dated 14-1-2002 passed by the Judge Special Court (CNS), Rawalpindi whereby he convicted Muhammad Jahangir son of Malik Allah Bakhsh Khan and Muhammad Iqbal Khan son of Aolia Khan accused/appellants and sentenced both of them to death with a fine of Rs.5 lac each in default of payment of which they both were directed to undergo 2 years' R.I. The appellants have challenged their convictions and sentences before this Court through the present appeal.

2. Briefly stated the facts of the prosecution case are that on 16-12-1999 at 11-30 a.m. Col. Shahid Hamid Jaffery the Regional Director, ANF received a spy information that the excise officials posted at Mullan Mansoor Check Post, Attock, apprehended some smugglers, recovered huge quantity of narcotics and set them free after receiving illegal gratification and excise constables Jahangir and Iqbal Khan would remove those narcotics to some other place on any time on that day. The Regional Director directed Capt. Kaman (P.W.2) alongwith Muhammad Sarwar Bhutta, S.-I. (P.W.5), Naib Subedar Muhammad Bashir, Imtiaz Hussain Shah, H.C. (P.W.3), Hawaldar Muhammad Azam (given up P.W.) Muhammad Akram, Muhammad Guldad Khan, Lance Naik Muhammad Manzoor, Sher Afzal, Naik Faiz Ahmad, Maqsood Ahmad, Faizullah, Dost Muhammad, Muhammad Hayat, Bismillah Jan, Abid Hussain Shah and Ghulam Jaffar constables to raid the Check Post. A raid was accordingly conducted as a consequence of which both the accused/appellants Jahangir Muhammad Khan and Muhammad Iqbal Khan were arrested. A purse, Rs.1174, visiting cards etc. were recovered alongwith three keys from Jahangir and they were taken into possession and from personal search of Muhammad Iqbal Khan, his departmental identity card, national identity card, Rs.85 different chits keys were recovered. Jahangir accused led to the recovery of some packets of imperial leather soap containing 3 Kgs. brown heroin wrapped in a shopping bag and 250 grams of white heroin was also recovered from the same bag. All this material was kept in a Jisti box. From the second Jisti box 6 Kgs. of Charas was recovered wrapped in a shopping bag alongwith 530 rounds of .30 bore pistols 8 pistols and a pistol of .22 bore which were also kept in a black Shopping bag. .tanangir Muhammad Khan while in custody also led to the recovery of opium weighing 3800 grams and a rifle .222 from underneath the old tyres lying in another store situated in the check post. Muhammad Iqbal Khan appellant disclosed that the keys recovered from him belonged to the store and the boxes lying therein and thereafter led to the recovery of 2 Kgs. heroin kept in another Jisti box from another store after opening the locks of the store room and the box with the keys recovered from him. From the same box 4600 grams of dust Charas and common Charas was recovered. From the same store in a cemented shelf a rifle .7 mm bearing No.2154 and one Airgun were also recovered. Muhammad Sarwar Bhutta, S.-I. P.W.5 was deputed to investigate the matter. The Chemical Examiner subsequently had confirmed that the substances recovered from both the accused/appellants were contraband narcotics as they could cause intoxication.

3. Regarding this incident F.I.R. No.67, dated 16-12-1999 was recorded under section 9-C of` CNSA, 1997 at Police Station ANF, Rawalpindi. Muhammad Sarwar Bhutta, S.-I. (P.W.5) investigated the case. He recorded the statements of P.Ws. under section 161, Cr.P.C., prepared the site-plan and completed other documents. On 24-3-2001 charge was framed against both the accused under section 9-C of CNSA. 1997 to which they pleaded not guilty and claimed trial.

4. During the trial the prosecution produce as many as six witnesses in support of its case against the appellants. Capt. Kamran Khalid (P.W.2) and Imtiaz Hussain Shah, A.S.-I. (P.W.3) furnished a detailed account about the raid personal search of the appellants and various recoveries effected from the appellants Naseer Haider Zaidi S.-I. (P.W.I) Moharrar deposed about the recording of F.I.R. on the basis of complaint sent by Muhammad Sarwar Bhutta, S.-I. Jeevan Muhammad (P.W.4) deposed about handing over of the six parcels of narcotics to the office of Chemical Examiner, Rawalpindi for chemical analysis. Muhammad Sarwar Bhutta, S.-I. (P.W.5) deposed about the various steps taken by him during the investigation of this case. The deposition of Muhammad Munir (P.W.6) was more or less of formal nature and he was not cross-examined by the defence.

5. After the close of prosecution case the accused were examined under section 342, Cr.P.C. They pleaded not guilty. In reply to question No.2 whereby he was asked to explain about all the incriminating recoveries including the recovery of keys. Jahangir Muhammad Khan appellant stated that:-- "It is incorrect that anything was taken from my personal possession at Mullan Mansoor. When I was brought at ANF Headquarters, Rawalpindi my identity card and other personal belongings were taken into possession. In fact they took from my possession Rs.5,000 but shown about Rs.1,100 as recovered from me. My watch and gold ring was not shown in the recovery memo. which was taken by Sarwar Bhutta, S.-I. No contraband was recovered from my possession." He further stated that:-- "It was a fake recovery planted on me and I rely on my same reply as to question No.2. I would like to clarify that the ANF officials recovered all the stated material from the building of Mullan Mansoor Check Post where 12/14 persons resided as well as worked for Excise Department so it cannot be said that every contraband was in my exclusive possession. Besides not a single article was recovered from my trunk or box which could establish that the connected box belonged to me." To a question as to why this case against you and why the P.W. deposed against you, Jahangir Muhammad Khan accused replied as under:-- "Since myself and my co-accused refused entry to the ANF officials without the permission of our Inspector as such we two were targeted by the raiding party as such all of them belong to same department so they deposed against me under the direction of P. W.2." The accused Iqbal Muhammad Khan made statement under section 342, Cr.P.C. and took similar stand in all respects as was taken by his co -accused Jahangir Muhammad Khan. Both the accused did not opt to make any statement on oath under section 340(2), Cr.P.C. but they opted to lead defence evidence.

6. At the conclusion of the trial the learned trial Court found the prosecution case against both the appellant to have been proved beyond reasonable doubt and thus, they were convicted and sentenced by it as mentioned in detail hereinabove. Hence this appeal.

7. We have heard Sardar Muhammad Ishaque Khan, Advocate the learned counsel for the appellant and Mirza Viqas Rauf, Special Prosecutor for A.N.F. as also Mr. Tanvir Iqbal, the learned Assistant Advocate-General for the State.

8. It has been contended by the learned counsel for the appellant that the prosecution has not been able to prove that the narcotics were in possession of the appellants, that the trial Court did not appraise the evidence in accordance with the settled principles of law; that from the prosecution evidence no case whatsoever was made out against the appellants, that the recovery cannot be relied upon as the mandatory requirements of section 103, Cr.P.C. have not been complied with by the Investigating Officer, that the joint trial of both the appellants could not have been held and that the same has rendered the proceedings, of the trial a nullity in the eye of law. He finally argued that in any case the sentence of death awarded to the appellants was a very harsh punishment and was not called for in the given circumstances of the case. On the other hand the learned Special Prosecutor of A.N.F. and the learned Assistant Advocate-General maintained that the prosecution had brought home the charge against the appellants to the hilt and their conviction and sentence was perfectly legal not calling for any interference by this Court.

9. We have gone through the evidence recorded in this case and found that the prosecution witnesses have fully supported its version. The P.Ws. were cross-examined at great length but their testimony could not be discredited or shaken by the defence and the same has been found to be confidence-inspiring. Insofar as the objection of the learned counsel for the appellant that the prosecution has not been able to prove the prosecution of the narcotics by the appellants, it may be stated that the recovery of three keys from Jahangir Muhammad Khan appellant and two keys from Muhammad Iqbal Khan appellant through which at the later stage the said appellants opened the store rooms and the boxes lying therein which contained the contraband, clearly prove that it was within the exclusive knowledge of the said appellants that the narcotics were lying at the place where they were recovered. Jahangir appellant got recovered heroin weighing 3 kilos and 250 grams, Charas 6 Kgs. and opium 3.8 Kgs. Likewise Muhammad Iqbal appellant got recovered heroin 2 Kgs. and Charas 4.6 Kgs. Both the appellants led the raiding party to the store room, used the keys which were found on their persons to open the locks of the store room and thereafter by applying the keys opened the boxes from which the narcotics were recovered. We are of the view that after recovery of keys and the subsequent narcotics at the pointation of the appellants the onus shifted on the appellants under section 29 of the Control of Narcotic Substances Act, 1997 to explain their position vis-a-vis the said recovery. It would be advantageous to reproduce section 29 of the Act ibid for facility of reference:-- "

29. Presumption from possession of illicit articles.

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of:-- (a) any narcotic drug, psychotropic substance or controlled substance; (b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the production or manufacture of narcotic drug psychotropic substance or controlled substance or any residue left of materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured, for the possession of which he fails to account satisfactorily."

10. It may further be observed that recovery of narcotics during the search has not been denied by the appellants but their plea was that they did not have anything to do with the said recovery and that in the said check post there were about a dozen employees who were performing various duties. However, appellants have not been able to explain as to how did they come to possess the keys which is an extremely incriminating piece of evidence against them. The defence taken by both the accused that the Army Captain who was heading the A.N.F. raiding party had taken as a personal affront the refusal of the appellants to allow him entry in the check post which prompted him to falsely implicate the appellants, does not appeal to reason at all. A Commissioned Officer of the Pakistan Army is not expected to become so vindictive as to implicate two absolutely innocent persons in a serious case entailing capital punishment. The further plea of the appellants that a number of employees working at the check post including the Incharge Excise Inspector had been taken into custody but were let off for ulterior motive, also does not advance their case. It is on record that the Incharge Inspector, alongwith a number of other employees had been formally arrested, thoroughly interrogated but could not be connected with the recovered narcotics and resultantly were got discharged. We are of the considered view that this aspect of the case is not the weakness of the prosecution, rather it reflects on the impartiality and fairness of the investigation. The appellants have not been able to point out any animosity or ill-will of the raiding party against them. As already stated the prosecution witnesses have been absolutely consistent, coherent and have resolutely withstood lengthy cross-examination. The defence has, not been able to shatter their testimony or pinpoint any ill-will which may have been harboured by the said witnesses against the appellants. The objection of the learned counsel regarding non-compliance of the provisions of section 103, Cr.P.C. is also misconceived, inasmuch as section 25 of the Control of Narcotic Substances Act, 1997 specifically ousts the applicability of section 103, Cr.P.C. The contention of the learned counsel for the appellant that a joint trial was not warranted is also without any substance and section 239(d), Cr.P.C. furnishes a complete answer to the said objection. Reliance of the learned counsel for the appellant on the case of MD Mosaddar Hoque and another v. The State PLD 1958 SC (Pak.) 131, is of no avail to him inasmuch as in the said case a Sub-Registrar and a Moharrir were accused of taking independent bribes in the course of registration of some document and it was held by the Honourable Supreme Court that those were two separate acts and there was nothing to link the acts so as to be termed as the "same transaction". Similarly the case of Noor Ahmad v. The State PLD 1964 SC 120, relied upon by the learned counsel for the appellant does not advance his case, in that in the said case two drivers one driving a motor bus and the other a Chevrolet car were proceeding in the same direction and at one juncture, the driver of the car attempted to overtake the bus but its rear bumper got entangled with the front bumper of the bus. The impact caused the car to turn turtle and it was pushed to the left side of the road where it crushed a pedestrian and killed him. The police took the view that the collision and the death of the innocent pedestrian occurred due to the rash and negligent driving of both the drivers and, therefore, sent them up for trial under section 304-A, P.P.C. It was held by the Honourable Supreme Court that each driver had acted independent to the other and their joint trial was not proper. The learned counsel for the appellant attempted to argue that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.

11. As far as the quantum of punishment awarded by the learned trial Court is concerned we have noticed that the appellants were arrested in this case on 16-12-1999 and faced the ordeal of trial and thereafter they are in the death cell for the last more than two years. It is in evidence that they have also lost their jobs having been dismissed from service in the departmental proceedings, which were held against them. We have consciously adverted to the last prayer of the learned counsel for the appellant that extreme penalty of death awarded to the appellants is on the harsher side. The appellants according to their learned counsel have no antecedents or credentials of peddlers of narcotics to their discredit as the case in hand appears to be the first case of its kind ever registered against them. As far as Muhammad Iqbal Khan appellant is concerned, the recovery effected, form him does not exceed 10 Kgs. so as to attract the mischief of proviso to section 9(c) of the Control Narcotic Substances Act, 1997. However, the learned Special Prosecutor submitted that since the appellants belonged to a law-enforcing agency and instead of making any contribution to check the abominable drug trade. they fell prey to the temptations of making easy money as such they do not deserve any leniency, however, he added that as long as the conviction of the appellants is not disturbed he has nothing much to say on the question of sentence the same lies within the discretion of the Court.

12. For what has been discussed above we have decided to reduce the sentence awarded to the appellants as mentioned herein-below as the same in our view will sufficiently meet the ends of justice. This appeal is dismissed to the extent of appellants conviction recorded by the learned trial Court but the same is partly allowed to the extent of their sentence of death. The death sentence of Jahangir Muhammad Khan appellant is commuted to life imprisonment whereas the sentence of death awarded to Muhammad Iqbal appellant is converted into ten years' R.I. The sentence of fine imposed on both the appellants or in default in payment of fine to R.I. for years each is, however: maintained. Benefit of section 382-B, Cr.P.C. shall he extended to them. This appeal is disposed of in these terms. N.H.Q./J-16/L Sentence reduced.