P L D 2009 Peshawar 14 (PLP)

SHAHJI REHMAN KHAN, J.

This single judgment shall dispose of Criminal Appeal No.852/2007 filed by Syed Mehmood Shah son of Faqir Muhammad resident of House No.302, Gharib Abad, Shaheen Muslim Town, Peshawar against his conviction and sentence along with Murder Reference No.22/2007, which was sent by the learned trial Court under Section 374, Cr.P.0 for confirmation of Death Sentence of convict-appellant. As both the matters have arisen from the same judgment dated 18-7-2007 passed by the learned Additional Sessions Judge-II/Special Court, Swabi, through which, he has found the appellant guilty under Section 9(c) of the Control of Narcotic Substances Act, 1997 and under sections 468 & 471, PPC and sentenced him as follows:-- Sr. No. Sections of Law Sentence Default in payment of fine. 1 Section 9(c) of the CNSA, 1997 Death Sentence (he shall be hanged by neck till he is dead) with a fine of Rs.6,00,000 Further imprisonment for two year, S.I.

2. Section 468, P.P.C. Five years R.I. with a fine of Rs.40,000 Further imprisonment for four months S.I. 3, Section 471, P.P.C. Five year R.I with a fine of Rs.40,000 Further imprisonment for four months S.I. All the sentences were ordered to be run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended to the accused-appellant.

2. Brief facts of the case according to the F.I.R are that on 19-3-2005, Gul Ameer Khan SHO of Police Station Topi along with Maqarab Khan, (2) Safdar Khan, (3) Riaz, (4) Pervez, (5) Sher Zada and (6) Sayyar Khan LHCs were present at Shaheedabad Check post. During nakabandi, a Shahzore Pickup bearing No.T-4799/Islamabad coming from the side of Topi was stopped and its driver disclosed his name as Syed Mehmood Shah son of Faqir Muhammad, resident of Gharib Abad, Shaheen Muslim Town, Peshawar. On search of the vehicle from secret cavity of its floor 320 packets of charas, each weighing 01 kilogram, total 320 kilogram; (ii) 20 packets of opium, each weighing 01 kilogram, total 20 kilograms, (iii) one Kalashnikov tine bearing No. 1976RS7710, (iv) 50 live cartridges of .7.62 bore were recovered. The SHO separated samples of 5/5 grams of Charas and opium from each packet and sealed the same for chemical analysis. Remaining contraband was sealed in separate parcels including arms and ammunition and arrested the accused-appellant on the spot, and thereafter, he drafted the murasila and in light whereof, the instant case vide F.I.R No.146, dated 19-3-2005 under Section 9(c) of the Control of Narcotic Substances Act, 1997 read with Sections 419/420/468/471, P.P.C. was registered against him in Police Station Topi.

3. On completion of investigation, the appellant was challaned to the Court for trial. The copies of the relevant documents under section 265-C, Cr.P.C. were supplied to him. The charge was accordingly framed against him, to which he pleaded not guilty and claimed trial.

4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellant, produced seven witnesses. Bakht Bahadur Khan, SI(PW-I) had conducted the investigation of the instant case, he visited the spot and prepared the site plan, Exh.PB at the instance of S.H.O. & police officials; recorded the police statements of the P.Ws. as well as accused; obtained two days police custody from the concerned Court vide application, Exh.PW-1/1; produced the accused before the concerned Judicial Magistrate for recording his confessional statement vide application, Exh.PW-1/2 but he did not confess his guilt and then he was sent to judicial lockup; sent the samples to F.S.L. for chemical analysis vide application, Exh.PW-1/3 and received the result thereof, Exh.PK in positive and placed it on record; obtained opinion from the Registration Office, Islamabad vide application Exh.PW-1/4 and opinion thereof is Exh.PW-1/5, wherein it was inter alia opined that:- "Registration Certificate of vehicle No.IDT-4799 (Shahzore Pickup bearing Chassis No.AUDF-108588 and engine No.D4BB1-551878) presented by Mr. Bakht Bahadar, Sub-Inspector Police Station Topi, District Swabi, is not issued by this office. It is totally bogus/fabricated." After completion of investigation, he handed over the case file to SHO Qaisar Ali Khan for submission of complete challan in the Court. Wafadar Khan ASI (P.W.2), received the murasila and registered the case F.I.R Exh.PA Gul Amir Khan Inspector/SDPO (P.W.3) is complainant of the instant case and repeated the story as mentioned in the murasila Exh.PA/1. Qaisar Ali Khan, S.I. (P.W.4) had submitted complete challan in the Court. Muqarab Khan HC (P.W.5) is the marginal witness to the recovery memo. Exh.PW-3/1, vide which, the I.O., took into his possession, vehicle, (ii) contrabands articles and (iii) arms & ammunitions etc. Muhammad Inamullah JM/CJ (P.W.6) had destroyed the Narcotics vide Muharrir's application Exh.PW-6/1 on order of the learned Sessions Judge, Swabi Exh.PW-6/2; prepared the list of destroyed case property, Exh.PW-6/3 and certificate under section 516-A, Cr.P.C. is Exh.PW-6/4. Nihar Ali Khan A.S.I. (P.W.7) has submitted an application, already exhibited as Exh.PW-6/1 for destruction of case property, which was duly endorsed by the prosecution.

5. On conclusion of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C. He, in his statement, denied the charges and pleaded innocence. He, however, did not opt to lead any evidence in his defence or to appear as his own witness in terms of section 340(2), Cr.P.C.

6. The learned Additional Sessions Judge-II/JSC, after hearing the arguments of both the parties and on appraisal of evidence, convicted and sentenced the appellant as stated above. Feeling dissatisfied with conviction and sentence, the appellant has come to this Court in the Criminal appeal and Murder Reference was made by the learned trial Court.

7. Arguments of M/s Noor Alam Khan and Ziaud Din Siddiqui Advocate for appellant and that of Mr. Ishtiq Ibrahim, learned Additional Advocate-General, N.-W.F.P. for State heard in proper detail and we have gone through the record with their valuable assistance minutely.

8. It was vehemently contended by the learned counsel appearing for the appellant that the impugned judgment is based on misreading and non-reading of evidence and is also against the law and facts of the case, , is based upon surmises and conjectures; that the recovered contraband attributed to the appellant was neither produced/exhibited nor any cogent reasons/justification was advanced which necessitated its so-called destruction; that all the recovery witnesses are police officials and the recovery was effected in violation of section 103, Cr.P.C. from the secret cavities of the vehicle, therefore, is not to be believed; that two weeks delay in sending the samples to the F.S.L. and late receipt thereof also creates doubts in the prosecution case and that the convict-appellant being not owner of the vehicle was not in the know of the contraband articles in the secret cavities, therefore, inflicting the punishment of death sentence is not justified and that in view of, the afore-noted infirmities and loopholes in the prosecution case, convict-appellant be acquitted.

9. Mr. Ishtiaq Ibrahim, the learned Additional Advocate-General N.-W.F.P. supported the impugned judgment and argued that the appellant was arrested red-handed on the spot while he was trafficking huge quantity of Narcotics and arms and ammunition in a vehicle driven by him on forged and bogus documents, therefore, the judgment of the learned trial Court being justified and legal be up-held.

10. We have anxiously considered the arguments of both the parties in the light of material available on record. Admittedly, appellant was arrested on 19-3-2005 from the spot while trafficking huge quantity of 320 kilograms charas and 20 kilograms opium along with arms and ammunitions in the vehicle bearing forged and bogus registration No.IDT-4799 (Shahzore Pickup). The material P.Ws. are unanimous on the points of time, place, recovery of Arms & ammunitions and seizure of Narcotics from the secret cavities of the vehicle, driven by the appellant. The samples of contraband articles sent for chemical analysis were also found by the Chemical Examiner to be Charas and Opium. The plantation of huge quantity of Narcotics is next to impossible for the police officials and otherwise too, it was not claimed by the appellant in his statement recorded under Section 342, Cr.P.0 that the same was planted against him by the police officials. The case of the convict-appellant is of simple denial and has claimed that nothing incriminating was recovered from him by the police.

11. Besides that, it was a case of Nakabandi/checking and the prosecution witnesses were members of the checking party. Thus, their presence at the place was natural. The P.Ws present at the place of recovery of charas and Opium from the secret cavities of the vehicle under control/being driven by the convict-appellant were the police employees. They were the competent witnesses like any other independent witness and their evidence cannot be discarded merely for the reason that they were the police employees. Reference in this context can be made to the case of Naseer Ahmad v. The State (2004 SCMR 1361), (ii) Riaz Ahmad v. The State (2004 SCMR 988), (iii) Fida Jan v. The State (2001 SCMR 36) and Muhammad Azam v. The State (PLD 1996 SC 67).

12. The contentions of learned Defence counsel regarding non-joining of private witness has no force because Section 25 of the Control of Narcotic Substances Act, 1997 has excluded the application of section 103, Cr.P.C, which is read as under: "Mode of making searches and arrest.

The provision of the Code of Criminal Procedure, 1898, except those of Section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and searches made under these Sections." Moreover, the testimony of Gul Amir Khan Inspector/SDPO (P.W.3) and that of Muqarab Khan H.C. (P.W.5) has been corroborated by the report of Chemical Analysis, Exh.PK, which is in positive. The delay of few days in sending the samples to the F.S.L. is stated to be due to rush of work, is of no consequence in view of the huge quantity of Narcotics recovered from the secret cavities of vehicle in possession/incharge of the appellant.

13. The objection of the learned counsel appearing for the appellant regarding the non production/exhibition of case property is not tenable in view of the provision of law as detailed in section 516-A, Cr.P.C. because on the application of Nihar Ali Khan, A.S.I. (PW-7), Exh.PW-6/1, the learned Sessions Judge, Swabi had directed/ordered Mr. Muhammad Inamullah J/M (P.W.6) vide Exh.PW-6/2 for destruction of case property. The case property was destroyed vide certificate under section 516-A, Cr.P.C, Exh.PW-6/3 and Exh.PW-6/4 and it was stated by Mr. Inamullah J/M that the same were signed by him, therefore, in the stated circumstances, the case property having been destroyed in accordance with law and the samples obtained there-from by the learned Judicial Magistrate having been exhibited on record is complete answer to the objection of the learned Defence counsel.

14. The appellant was also convicted under sections 468 and 471, P.P.C. along with fine but the learned Defence counsel did not challenge the conviction and sentence in this respect, therefore, the sentence awarded to the appellant by the learned trial Court under sections 468 and 471, P.P.C. along with fine are maintained.

15. For what has been discussed above, we are of the considered opinion that the prosecution has successfully established the guilt of the appellant to the hilt by producing the above-referred evidence. The learned Defence counsel has not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the learned trial Court.

16. So far as death sentence awarded to the convict-appellant is concerned, keeping in view the quantity of Narcotics and his old age 65 years and the fact that he was driver of the vehicle, the ends of justice would be satisfied if death sentence is reduced to the Imprisonment for Life on the strength of PLD 2007 Peshawar 160.

17. In the wake of above discussion, this appeal is partially accepted and while maintaining his conviction, the death sentence awarded to the appellant by the trial Court is reduced to IMPRISONMENT FOR LIFE and uphold the remaining conviction and sentenced passed by the trial Court.

18. The Murder Reference is answered in negative. H.B.T./163/P Sentence reduced