2006 PLP 1191 (YLR)

ALI NAWAZ CHOWHAN, J.

Alozie Martins, appellant was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 by the learned Judge Special Court CNS, Lahore vide judgment dated 21-4-2004 in case F.I.R. No.18 of 2002, dated 29-4-2002 registered at Police Station A.N.F., Lahore and sentenced to five years' R.I. with a fine of Rs.1 lac, or in lieu thereof further undergo six months' S.I. He was given the benefit under section 382-B, Cr. P. C.

2. Briefly the prosecution case is that on 16-4-2004 Naib-Subedar Muhammad Yasin along with other staff members of A.N.F. were present at A.N.F. Counter at the International Departure Hall, Lahore Airport for briefing of Flight No.G.F.-761, bound for Abu Dhabi, when at 6-30 a.m. the accused came at A.N.F. Counter for checking of his luggage. Being suspect he was stopped over there. Naib-Subedar Muhammad Yasin telephonically informed Muhammad Azam Khan, S.-I, who reached along with Abdul Aziz H.C., Meer Zakeem and Nazakat Hussain at the Airport. The accused along with passport and two air ticketes and luggage was handed over by Naib Subedar Muhammad Yasin to Muhammad Azam Khan, S.-I. who got the accused admitted in Medical Unit No.1 Services Hospital, Lahore for his medical check-up and treatment under the guard. In the course of admission of accused in hospital from 16-4-2002 to 29-4-2002, 50 capsules containing heroin were recovered which were handed over on duty at 2-00 p.m. to Muhammad Azam Khan, S.-I. who having broken down the capsules recovered heroin weighing 700 grams.

3. To establish its case the prosecution examined as many as five witnesses, Muhammad Afzal Asim, Inspector P.W.1 investigated the case. Abdul Ghafoor P.W.2 transmitted the sealed parcel containing heroin to the office of Chemical Examiner. Muhammad Afzal Khan, S.-I. P.W.3 is the complainant and reiterated the contents of the F.I.R. Abdul Ghafoor, Constable P.W.4 is the witness of recovery. Muhammad Sarwar, A.S.-I. P.W.5 drafted'the formal FIR. Exh.P.A. He also deposed about the safe custody of the sealed parcels said to contain heroin in the Malkhana of the police station. Application filed by the Muhammad Afzal Asim, S.H.O., Police Station, A.N.F. for drawing destruction of case property is Exh. P. K. , order dated 26-2-2003 is Exh. P. L, Certificates issued by the learned Judicial Magistrate Section 30 are Exh.P.M. and Exh.P.N.

4. The accused was examined under section 342, Cr.P.C. He denied all the allegations and recovery of heroin. He neither opted to appear as his own witness under section 340(2), Cr.P.C. nor produced any defence evidence.

5. After hearing the learned counsel for the appellant and going through the record we are of the view that the prosecution witnesses have successfully stood the test of cross-examination. The case is thus established. Learned counsel also did not assail the order of conviction but laid emphasis on the reduction of the sentence while stating that the appellant was not a previous convict and may be a carrier misled by a principal and, therefore, he deserved leniency.

6. We agree with the contentions made with respect to the quantum of sentence and reduce the same from five years to three years and fine from Rs.1 lac to Rs.25,000, or in lieu thereof to suffer further three months' R.I. keeping in view the canvassed abject poverty of the appellant and dispose of this appeal with the direction that after he completes the tenure of his sentence arrangements be made for his deportation by the Jail Superintendent in co-ordination with the A.N.F. H.B.T./A-606/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.