2002 PLP 443 (YLR)

"Q.No.4. Is it a fact that on 12-10-1995 at about 1-30 . a.m. at Lahore Airport you were found transporting heroin P.8 without the permission of the Government which you have concealed in your Attache case Exh.P.D? What do you say about it? Ans. It is incorrect. On 12-10-1995 I was going to Karachi by Aero Asia Flight on the call of my married sister living there who managed for my Visa to Middle East country through one of her neighbourer who was going back in a day or so. Q.No.9. Why this case against you and why the P.Ws. have deposed against you? Ans. The alleged heroin was planted upon me. The fact is that the ANF Police took the heroin in their custody from inside the Airport and when they were taking the same alongwith co accused Muhammad Salim (deceased) out of Airport, on my inquiry from my co-accused about his going with the ANF Police, I was also involved in this case falsely. The persons who were carrying the said heroin out of country, ran away from the spot and in order to show the efficiency by ANF Police, the alleged heroin was planted upon me. All the P.Ws. cited in this case are police witnesses and they have deposed against me being the employee of ANF Police in order to support their superiors." He also admitted the recovery of articles mentioned in Exh.P.B. However, neither he has appeared in his defence under section 340(2), Cr.P.C. nor he has produced any defence evidence. After hearing the arguments of both the parties the impugned judgment has been passed.

4. Learned counsel for the appellant contends that admittedly no Boarding Card was recovered from the possession of the petitioner at the time of his arrest, which casts serious doubt in the prosecution case. It is further contended that P. W .4 is the complainant and is also the Investigating Officer. It is further contended that the complainant was not competent to investigate the case and as such the investigation is tainted with mala fide and the whole story has become doubtful. It is further contended that the prosecution has failed to prove the guilt of the appellant and the statements of the witnesses are not consistent with each other and are contradictory on material points. He further contends that the evidence is not sufficient to connect the appellant with the commission of the crime. However, lastly he has frankly conceded that from the evidence, on the part of the prosecution no animus or grudge is proved on record to falsely implicate the appellant but contends that the sentence passed to the appellant is too harsh as the quantity of narcotics recovered was much below 10 Kgs. and the sentence passed does not commensurate with the offence committed by the appellant hence prays for the reduction of the sentence alternatively.

5. On the other hand learned counsel appearing on behalf of the State has opposed this appeal and prays for the confirmation of the death sentence on the ground that the image of the nation and the country is being tarnished in the eyes of comity of other nations, besides young generation is getting an addicted to narcotics, the Court should not take lenient view when the sufficient evidence has been produced by the prosecution to prove the guilt of the accused in such a case.

6. We have heard the learned counsel for the parties and have also perused the record carefully. The contention raised by the learned counsel for the appellant is that P.W.4 Muhammad Jamshed Cheema is a complainant and he could not investigate the case. This plea is devoid of force as he is fully competent to investigate the case by virtue of the powers conferred upon him under the control of Narcotic and Substances Act and the learned counsel for the appellant has failed to point out any prejudice which has been caused to him due to the investigation by P.W.

4. Admittedly none of the witnesses who are employees of the ANF have any enmity or grudge against the appellant or his co-accused Salim to falsely implicate them in this case. We have noticed that P.W.3 Ikram Ullah Bundail, FIO the recovery witness who has fully supported the prosecution on each and every point was subjected to lengty cross-examination but nothing could be gained by the defence from him during the cross-examination. Similarly P.W.4 Muhammad Jamshed Cheema was also subjected to lengthy cross-examination. The defence has failed to point out any reason for the false implication of the appellant and his co-accused in this case. The accused even has not suggested any enmity or reason for their false implication by both the witnesses in such a henious case otherwise both the witnesses are consistent on material points in their statements and we have not found the discrepancies in their statements. We hold after the perusal of the statements that the prosecution has succeeded in proving the guilt of the appellant and that the prosecution has also succeeded in proving that 2 Kgs. heroin was recovered from the Attache case of the appellant and his co-accuser Muhammad Salim. This fact is fully supported by the apprehension of the appellant at the Airport which even has been admitted by him in his statement under section 342, Cr.P.C. No reasonable explanation has been given by the appellant for his presence at the Airport or for his false implication in this case and the recovery from him of huge quantity of heroin. Learned counsel for the appellant has failed to point out any reason for disbelieving the evidence produced by the prosecution at the time .of trial. The evidence so produced is worth of credence which is sufficient to connect the appellant with the commission of the crime and we hold that the appellant has been rightly found guilty under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of C.N.S.O., 1995. Hence the appeal of the appellant is dismissed.

7. However, we have considered that the sentence awarded to the accused/appellant is not proportionate to the quantity of narcotics recovered from him. The maximum punishment awarded to him is liable to be reduced, as the appellant from the evidence of the prosecution has been found to be a carrier and not the owner of the heroin, which way being transported to Karachi for its onward transportation to abroad. We have given our anxious consideration to the contention raised by the learned counsel for the appellant and the State to the extent of sentence awarded to the appellant. Under section 9(c) of the Control of Narcotic Substances Act, 1997 the following sentences can be passed:- "S.9(c) "Sentence of R.I. upto 14 years or life or death in case the quantity of the narcotics exceeds one Kg. However, proviso attached to subsection (c) prescribes minimum penalty of life imprisonment in case the quantity exceeds 10 Kgs." From a bare perusal of section 9(c) of the Act, it can be gathered that the sentence of life imprisonment or death in cases involving narcotics with quantity of less than 10 Kgs. would be too harsh and may not appear to be in consonance with the above provisions and may be highly disproportionate in cases involving quantity of less than 10 Kgs, which normally would not call for a sentence exceeding 14 years' imprisonment. As the appellant was a carrier and is first offender and the quantity recovered from him is less than 10 Kgs. the sentence of death or life imprisonment is not warranted hence the reference is replied in negative and death sentence is NOT confirmed. However, the appellant is sentenced to 14 years' R.I. with a fine of Rs.1,00,000 and in default thereof to suffer one year's S.I. He is also given the benefit of section 382-B, Cr.P.C.

8. Subject to the above modification in the quantum of sentence, this appeal fails. Copy of this judgment shall be sent to the learned trial Court for implementation. N.H.Q./Z-85/L Sentence reduced.