1998 PLP 460 (SCMR)

RAJA AFRASIAB KHAN, J.

On 13th of December, 1992 at 3-00 p.m., a case under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order) was registered against Kenneth son of Chdoke, Colline son of Orjio and Jacob son of Yokel with Police Station Kabli, District Peshawar on the statement of Ghulam Muhammad Khan, Inspector, C.I.A., Headquarters Peshawar. On receiving spy information disclosing that the abovesaid accused had been making preparation to transport huge quantity of contraband drug, a raiding party consisting of Police Officials from C.I.A. was constituted. A raid was, accordingly, conducted. The accused were busy in loading their luggage in Datson No.PRG-357. Six bags of large size while three of medium size were found with the accused which were immediately taken into possession by the raiding party. On opening and checking the contents of bags, 18 cartons of typewriter ribbons consisting of 5184 ribbons were found in them. Out of these, 3030 ribbons were having heroin which were cleverly concealed in plastic wrappers upon which Nikam Typewriter Ribbons was written. The heroin was weighed and it was 35 K.G. The drug was taken into possession vide memo Exh.PC. The prosecution produced Madad Khan, P.W.1, Sultan Shah, P.W.2, Sajjad, P.W.3, Shah Wali Khan, P.W.4, Noor Khanud Din, P. W.5, Ajmal Khan, P. W.6 and Ghulam Muhammad P. W.7 in order to prove its case against the accused. Jacob, accused confessed the commission of crime stating that he had committed the offence all alone. He specifically disclosed that the petitioners did not participate with him in the commission of the crime. Madad Khan and Sajjad Ali P.Ws., proved that the heroin was recovered from the common luggage of the accused which was not marked or separately booked. By believing ocular account which was corroborated by recovery, a learned Additional Sessions Judge, Peshawar convicted and sentenced the accused to suffer 20 years' R.1. and a fine of Rs.20,000 or in default, to suffer two years' S.I. and 10 lashes each under Article 3 of the Order and 20 years' R.I. and fine of Rs.20,000 or in default thereof to undergo two years' S.I. and 10 lashes each under Article 4 of the Order vide his judgment, dated 8th of September, 1993. They challenged their conviction and sentence by filing appeal which was partly accepted by a Division Bench of Federal Shariat Court vide its judgment, dated 27th of October, 1993. The appellants were acquitted of the charge under Article 4 of the Order while their conviction and sentence under Article 3 of the Order was maintained. This petition seeking leave to appeal has been instituted by Kenneth and Colline alone. Learned counsel submits that prosecution did not succeed to bring on record sufficient evidence to convict the petitioners. According to him, there are material contradictions in the evidence of P. Ws. and as such, it does not inspire confidence. Learned counsel continues to argue that offence was committed by Jacob alone and not by the present petitioners and they were, thus, wrongly convicted and sentenced. We have heard the learned counsel for the petitioners at some length and have gone through the evidence with his assistance. The argument is devoid of force because it was proved by Sajjad Ali, P.W.3, the Hotel Manager that Kenneth, Colline and Jacob hired Room No.53 in his hotel to live in it together. It is in his evidence that they lived in the room. The Passports of the accused which were taken into custody demonstrate that they came and landed in Pakistan together through one flight. They had also been travelling and living together throughout their stay in Pakistan. On the day of occurrence, they were arrested from the same place while they were loading their goods including the heroin in their vehicle which was conunonly hired by them. There is, therefore, overwhelming evidence available- on record to show that the accused, in the execution of their common intention, committed the offence. They were caught red-handed when they were transporting 35 K.G. of heroin from Peshawar to some other destination. In the above situation, burden was on the petitioners to show that they were innocent and that they did not keep the heroin with them while concealing it in their goods. We are, therefore, satisfied to hold that this huge quantity of 35 K.G. heroin powder was recovered from the possession of the petitioners and their convict, Jacob during the raid. Jacob had confessed the commission of crime alone. This, in our view, was a clever device to give an, impression that offence, in fact, was committed by Jacob while the petitioners were innocent so that they could come out to look after the welfare of Jacob and his family in Pakistan and the country of their origin. In these circumstances there is no substance in this petition which is dismissed. Leave to appeal is refused. N.H.Q./K-275/S Leave refused.