P L D 2004 Lahore 829 (PLP)

(i) The recovery of twenty packets of Charas from the Mercedes car which the appellant himself was driving, was intercepted and he himself led to its recovery i.e. by opening the Diggi of the said car (Exh.PG & PH); (ii) The substance recovered from the said packets was proved to be Charas as is evident from the report of the Chemical Examiner (Exh.PL). The case property was produced in Court which is also evident from the cross-examination of P.W.8 who, at page 59 of the Paper Book said, "it is correct 20 packets of separated hashish are present in Court today": (iii) The afore-referred recovery was witnessed by P.W.8 Captain Mian Farooq. Aziz who was at that time a serving Army Officer and was on deputation with the Anti-Narcotics Force since 1-5-1998 and with whom the appellant, at no stage, attributed enmity or any motive for false implication. This witness was subjected to a lengthy cross-examination but the factum of recovery of twenty packets of Charas from the Diggi of the car was nowhere challenged during the cross-examination; (iv) Statement of P. W.8 is further corroborated by the statement of P.W.9 Rana Abad Ali, Assistant Director Anti-Narcotics Force who too was subjected to cross-examination at length but no motive for false implication was attributed to him either. The trend, of cross-examination of this witness indicates that the case of the appellant was that the Charas was recovered from the car but not on the pointation of the appellant but on the search made by the raiding party itself. The precise answer of this witness to the query made by the appellant s learned counsel is suggestive of this trend. He stated that " The charas was not recovered as by searching the car rather Rehmat Shah Afridi himself got recovered the same from the Diggi of his car "; (v) Major Abdul Rab (P.W.4) who is yet another serving Army officer on deputation with Anti-Narcotics Force, further corroborates the recovery of narcotics. He is a witness who not only bad telephonic conversation with the appellant but also had meetings with him in the Pearl Continental Hotel which were video taped. This witness stated that he posed himself as an agent for one Mr. Richi of USA. On latter's behalf he struck a deal with the appellant. In terms of the said deal, the appellant was to supply 1300 kilograms of Charas, half of the consignment was to reach Faisalabad the same night (which ended in conviction and is subject-matter of Criminal Appeal No.1067 of 2001 and Criminal Appeal No.297-J of 2001), appellant demanded full payment of the afore-referred amount of Charas (Rs.66,30,000) and brought a gift of Charas in the car for the said witness. Statement of this witness is admissible in evidence in terms of Article 40 of the Qanun-e-Shahadat order which reads as under:-- "

40. How much of Information received from accused may be proved.

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved". In the Commentary of Qanun-e-Shahadat Order by Justice Munir, as adapted by Mr. Justice (R.) Khalil-ur-Rehman Khan, Vol. 1, at page 545, t relying on precedent case-law, it was commented as under:-- " For purposes of Article 40, the word custody' does not necessarily mean detention or confinement. Submission to custody by word or action under section 46(1), Cr.P.C., may be taken to amount to custody. The expression police custody' does not necessarily mean formal arrest, it also includes police surveillance and restriction of the movements of the person concerned by the police. Detention of a person by the police as a suspect amounts to his being in police custody. As soon as an accused or suspected person comes into the hands of a Police Officer, he .is, in the absence of clear evidence to the contrary, no longer at liberty, and is, therefore, in custody within the meaning of Article 40 of the Qanun-e-Shahadat Order (vi) Copies of the audio/video tapes (Exh. PM) were duly delivered to the appellant at the time of delivery of statements of prosecution witnesses under section 161, Cr.P.C. This exhibit was played during trial as also before this Court and it was never challenged that the person on the video tape was not the appellant. But the learned counsel contended that the voice was dubbed. However, admittedly, at no stage, during trial or in appeal, appellant or his learned counsel made any request for a sonographic test of the voice in question. In corroboration of the video and audio tapes, their transcripts, were also placed on record by the prosecution as Exh.PM; (vii) This Court watched the video to comprehend the conversation with the help of transcripts. Some parts of it may be difficult to discern but broadly one could make out that the appellant was apprehensive of being under surveillance of the agencies, he was using coded expression, he was offering to supply a less harmful narcotic (Charas) and said that even if he was officer a billion dollars, he would not deal in the deadly narcotic (Heroin). He told P.W.4 that the delivery of first instalment of Narcotic was to be made at a city starting with word "F" (Faisalabad) and that Major Rab, should arrange payment for the entire consignment which was to be supplied; (viii) The person who taped audio/video conversation of the meetings was Captain Muhammad Hashim Dogar (P.W.5) who too was a serving Army Officer on deputation with the Anti-Narcotics Force. Tape recorded conversation is by now a well accepted form of 'real evidence' which a party may produce to prove a fact in issue. The expression 'real evidence . In Evidence Commentary and of evidence, other than oral and documentary. Tape records, charts, photographs, finger prints and tracker dogs are some instances of the `real evidence'. In Evidence Commentary and Materials by P.K. Waight and C.R.Williams (Third Edition), a detailed reference is made to the precedent case-law from Australian jurisdiction. In Butera. v. D.P.P. (VIC), High Court of Australia (1987) 62 A.L.J.R.7, relied on the tape recording conversation chief Justice Mason, who authored the judgment is quoted to have said:- .......... Of course a conversation can be proved by the oral testimony of anyone who heard it but that is not the only mean by which a conversation might be proved. The Courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape " The tape recorded conversation can be proved by the testimony of person who was part of the conversation or who recorded the conversation or even transcripts were considered as proof of the conversation in R v. Maqsud Ali R v. Ashiq Hussain (1965) 2 All E.R.); S. Partap Singh v. State of Punjab (AIR 1964 Supreme Court 72), R.M. Malkani v. State of Maharashtra (AIR 1973 Supreme Court 157) and Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others (AIR 1975 Supreme Court 1788). (ix) Appellant's learned counsel laid much stress on the point that since the statement attributed to the appellant that he had brought a gift of Charas for Major Abdul Rab (P.W.4) is missing in the video and its transcripts, therefore the very recovery of 21 packets of Charas from the Diggi of the car is doubtful. This argument is fallacious for more than one reasons. Firstly, every element of conversation between the two is not discernible because of T. V music was being played in the Hotel. Secondly, the absence of this part in the transcript defeats the argument that the video conversation was dubbed or its transcript was doctored. Had it been so, this part of conversation could have been easily added. Thirdly, the recovery of Charas from Diggi of the car stands proved irrespective of this missing part of video conversation. Fourthly, P.W.8 Captain Mian Farooq Aziz, who was a serving Army Officer and a one of the witnesses of recovery was never suggested that no Charas was recovered from Diggi of the car; (x) The record of the Mobilink was produced as (Exh.PC & PD/ 1-50) and the appellant in his statement under section 342 Cr.P.C., admitted that he was using the said Mobile number; (xi) The august Supreme Court of Pakistan in Asif Ali Zardari and another. v. The State (PLD 2001 Supreme Court 568) relied on `tape recorded conversation between Senator Saifur Rehman Incharge Ehtesab Bureau and two learned Judges of this Court to hold that the trial was biased;

9. In the light of the discussion in the preceding paragraphs we are of the view that the prosecution has successfully discharged its onus of proof. A presumption stands lawfully raised against the appellant that he not only was indulging in trafficking of Charas but also led to its recovery. The question which begs answer and which is part of the first proposition is as to what evidence the appellant led to rebut the presumption raised against him. In. this statement under section 342, Cr.P.C., he denied the prosecution case. He did not specifically deny that the voice in audio tape was his voice. Similarly, he never took up the plea that the person conversing with P.W.4 Major Abdul Rab was not the appellant but only stated that:- " . It is incorrect that the video have been forged and the copy given to me are indiscernible The Video have been forged and do not contain my speech. My figure has also been forged. The speech in the video is not mine and even otherwise speech is indiscernible " He even denied his arrest outside the Pearl Continental Hotel in the early hours of the fateful day. About the ownership of the car, which he was driving, appellant took up the plea that " the said car belongs to Frontier Post "of which admittedly he was the owner. In answer to the question as to why this case had been registered and why the prosecution witnesses were deposing against him, be attributed false implication to some articles published in the Frontier Post against Anti Narcotics Force, the alleged enmity of Government of Nawaz Sharif against him because he had been writing against the said Government and their misdeeds and soft corner for the smugglers and other outlaws etc, Not a word of mala fides or personal enmity was attributed to any of the prosecution witnesses. Except the afore-referred statement under section 342 Cr.P.C., the appellant did not opt to appear himself in his defence. He did not lead any evidence either to rebut the presumption raised against him on account of the prosecution evidence. Whether destruction/disposal of property in terms of section 516-A Cr.P.C has substantially prejudiced the case of the appellant- and have the effect of vitiating the trial or in the facts and circumstances of this case is it an irregularity which stood cured by the evidence led and the conduct of the appellant during trial?

10. Coming to the third proposition, a reference to section 516-A, Cr.P.C., would be in order which reads as under:-- "516-A, Cr.P.C. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of". Appellant's learned counsel relied on a judgment of the Federal Shariat Court reported in Nawab Ali v. The State (PLJ 1995 FSC 90 and NLR 1995 SD 374) to contend that since the narcotics were destroyed without notice to the appellant and not in front of the learned trial Court, the appellant had been prejudiced and merits acquittal. To better appreciate this point, certain important dates have to be kept in mind i.e application was filed by the Anti-Narcotics Force for disposal/destruction on 30-5-2000 and notice was issued to the appellant the same day for 16-6-2000. 16-6-2000 appears to be a holiday and the case was taken up on 17-6-2000 on which date Presiding Officer was on leave and the case was adjourned to 30-6-2000. However, on 22-6-2000, the learned trail Court passed the following order:- "1 This application has been moved under section 516-A Cr.P.C for the destruction of narcotics recovered in the case.

2. Since the case property falls under definition of Narcotics, the property be destroyed in accordance with the provisions laid down under section 516-A Cr.P.C., after retaining necessary samples.

3. Mian Ghulam Hussain, Special Magistrate, Police Station ANF Lahore is deputed to get prepared the sealed samples from the case property under his direct supervision. He shall submit a certificate in this context in the Court giving details of the proceedings". Despite the afore-referred order, the property was not destroyed forthwith and the concerned Judicial Magistrate, who was directed by the trial Court to destroy the narcotics in terms of section 516-A Cr.P.C., after retaining necessary samples passed the following order after three months on 22-9-2000 (Exh.PJ):- "

1. In compliance with the orders of the Special Judge (Anti Narcotics) Lahore dated 22-6-2000, the undersigned reached at Police Station, Anti-Narcotics Force Lahore today where Incharge of the Police Station produced 20 sealed parcels containing Charas total weighing 20.800 kgs before me for drawing necessary sample/samples.

2. On examination these sealed parcels duly numbered have been found intact and correct in weight. I de-sealed and opened all the parcels and randomly selected parcel No. 1, 8 and 15 from the above parcels and separated the same as samples.

3. I have sealed these samples of narcotics and the remaining parcels under seal bearing words M.G. Hussain Magistrate Section 30 and handed over all the sealed parcels pertaining to this case to the Incharge of Police Station, Anti-Narcotics Force, Lahore for safe custody and further proceedings under section 516-A, Cr.P.C. Ultimately, after five months of the trial Court's order, on 27,11-2000 and having destroyed the samples, Mian Ghulam Hussain, Judicial Magistrate Section 30, Lahore, issued Certificate (Exh.PK) which is to the following effect:-- "Today on 27-11-2000 at Plot No. 6 of Military Dairy arm Defence Road near Headquarters Pakistan Rangers (Punjab) Lahore, the Incharge Police Station Anti-Narcotics Force Lahore produced 17 sealed parcels containing Charas involved in the subject case before me for destruction. Parcels being my seal have been found intact and correct in weight. Consequently, I have caused and ensured the destruction of the Charas contained in the said parcels through burning, hence this' certificate" A resume of the afore-referred orders pertaining to the destruction of the property would show that notwithstanding the order for destruction on 22-6-2000 it was given effect to by the concerned Judicial Magistrate on 27-11-2000. During this period appellant and his learned counsel had been appearing before the learned trial Court. No objection whatsoever was raised with regard to the order dated 22-6-2000. The appellant was represented before the learned trial Court on 17-6-2000, 8-7-2000, 24-7-2000, 35-8-2000, 28-8-2000, 9-9-2000, 19-9-2000, 14-10-2000, 11-11-2000 and on 7-12-2000.

11. The objection to the destruction of the narcotics would have been relevant if, firstly, the appellant had disputed that the contents of the parcels recovered whereas the appellant ever since leis arrest never raised such a plea either before the Judicial Magistrate who granted physical remand during investigation or at the time of framing of the charge by the learned trial Court or when his statement under section 342 Cr.P.C., was recorded. This irregularity or illegality in the afore referred circumstances would not vitiate trial in view of Explanation to section 537, Cr.P.C. Secondly, if the Judicial Magistrate had not issued certificates (Exh. PJ & PK) in terms of section 516-A, Cr.P.C that the samples were retained and the remaining property was directed to be destroyed in terms of the order of the learned trial Court. Thirdly if P. W.9 Rana Abad Ali had not appeared to testify that the properties had been destroyed and their samples retained in his presence. The precedent case-law reported in Nawab Ali v. State (PLJ 1995 FSC 90) relied upon by the appellant's learned counsel is distinguishable on factual plane. In the said case, there was not much time gap between the date of the order of destruction of its implementation. Secondly, no evidence had been produced to show that the property had actually been destroyed.

12. Even otherwise, the said judgment has been revisited by the Hon'ble Federal Shariat Court in Maiik Talib Hussain v. The State (1998 MLD 506) wherein, at page 513, it was observed as under:-- "

The Proviso is not independent and 'The Court' used therein can 'only be interpreted with reference to 'any criminal Court' in the main provision. The third proviso enacted in the year 1991 also leads to same inference. It appears that the main provision of section 516-A, Cr.P.C., to which the proviso is tagged was not placed before the Honourable Judge in case of Nawab Ali v. The State reported in NLR 1995 FSC 374, and the proviso was not interpreted in the light of the main provision ......" A similar kind of objection was raised by the appellant in the afore-referred case which was repelled by the Hon'ble Federal Shariat Court and on the same page, it was held as under:- "Be that us it may, anti notwithstanding the above, the main question for consideration is whether any defect in or deviation from the strict compliance of proviso would vitiate the trial or adversely effect the result thereof, unless it is shown to have resulted in grave injustice otherwise caused any serious prejudice to the accused. There is nothing of the sort, however, appearing from the proceedings nor has the learned counsel for the appellants shown anything in the contraband material contained in the samples in the ease is not disputed nor it is disputed or denied that the same was taken as sample front the Eight Kilograms of Heroin seized and recovered from the bag in the case. We, therefore, feel that the technicalities, procedural or otherwise, if any, should not be given serious thought if the case stands otherwise proved " PROPOSITION(iv): Whether the statement of Major Abdul Rab (P.W.4), who acted as an under-cover officer, without the permission in writing of the competent authority under section 24 of the Control of Narcotics Substance, Act, 1997, is admissible and whether he was an accomplice not worthy of credit?

13. Appellant's learned counsel was very critical of the manner in which the trap was laid and contended that the entire action from the alleged trap laid by Major Abdul Rab (P.W.4), to appellant's arrest was unauthorized and illegal and evidence so collected was inadmissible. His precise objection is two fold. Firstly, that Major Abdul Rab (P.W.4) acted as under-cover officer without any authorization in writing by the competent authority under section 24 of Control of Narcotics Substance Act, 1997 and secondly, this witness was an accomplice and his evidence cannot be relied upon. Admittedly, this witness did not have written permission of the Federal Government in terms of the afore -referred' section to act as an: under-cover officer. But this is an enabling provision catering to primarily a different situation. Its non-compliance would not make the evidence inadmissible provided it is otherwise admissible under the Qanun-e-Shahadat Order and it has not prejudiced the case of the appellant either. So far as the argument with regard to the evidence of an accomplice is concerned, the Court has to consider this aspect in the facts and circumstances of each case. This witness was not a private individual, negotiating some illegal transaction for some private gain. He was .a serving Army Officer on deputation with Anti-Narcotics Force who, on a tip, was trying to spy over and gather some information about the illegal narcotic trade of the appellant. The practice of deploying detectives and spies to detect crime is in vogue in Police Department since long. It .has assumed greater importance on account of various complicated facets of crime in the modern age. Narcotic and drug smuggling is one of those crimes which has serious, magnitude. The l Police and the Anti-Narcotics Force are obliged to resort to such techniques which cannot be taken exception to unless some malice is shown or prejudice is proved on record. In P.P. V. A. Thamas (AIR 1959 Madras 166), use of such methods was approved by High Court. It observed as under:- "To sum up as pointed by me in Ambujam v. the State, 1953 Mad, W. N.Cr.156: AIR 1854 Mad 326, unfortunately owing to the increasing nature of the special enactments and the impossibility of procuring evidence in any other way and the paramount necessity of putting down offences of this kind, the use of trap witness has become widespread and indispensable. The employment of trap witnesses is in accordance with the best Hindu, Muslim administrative traditions. I have traced its historical genesis in the aforesaid decision. A trap witness is not an accomplice and he does not come under the category of persons whose evidence cannot be accepted in the absence of material corroboration. But at the same time as the system of employing trap witness will lend itself to abuses, Court will closely scrutinize his testimony. The weight to be attached to his evidence will depend upon the character of each individual trap witness". PROPOSITION(v): What is the effect of the absence of any guidelines with regard to the award or otherwise of the maximum/capital punishment as provided in section 9(c) of the Control of Narcotics Substance Act, 1997 and what guidelines this Court lays down in these proceedings?

14. It would be pertinent to refer to the penal provision of the Control of Narcotic Substances Act, 1997 i.e. section 9 which reads as under:- Punishment for contravention of sections 6, 7 and 8.

Whoever contravenes the provision of section 6, 7 or 8 shall be punished with (a) imprisonment which may extend to two years, or with fine, or with both. if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less: (b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram. (c) Death or imprisonment for life, or imprisonment for a term which may extend to four teen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b): Provided that if quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life". Although this provision does not create any distinction between various kinds of narcotics substance and prescribes only a minimum sentence in case the narcotics substance exceeds ten kilograms yet this Court has to consider as to in what cases death should be awarded and in what cases the imprisonment for life. It is conceded before this Court that Heroin is the deadliest narcotic and if a quantity of narcotics falls within the mischief of the afore-referred provision, then the accused should be visited with the maximum penalty. Yet another circumstance for awarding the capital punishment could be if a convict undergoing life imprisonment under section 9(c) of the Control of Narcotic Substances Act, 1997 is convicted for the second time under the same provision. There is no provision in our Control of Narcotic Substances, Act, 1997 but in the Indian Narcotics and Drugs and Psychotropic Substances, Act, 1985 (Act No.61 of 1985), section 31-A provides death penalty for certain offences after previous conviction.

15. It is not the prosecution case that the appellant is a previous convict. The transcripts of the video tape conversation placed on record indicate that the appellant expressed abhorrence for trading in Heroin even if he was offered a hefty price. Learned Special Prosecutor Khawaja Sultan Ahmad, Advocate on Court query, in all fairness, admitted that this part of the conversation could be considered as a mitigating circumstance with regard to the quantum of sentence. The learned Additional Advocate-General Punjab Ch. Muhammad Suleman conceded before this Court that irrespective of the quantity of Charas recovered, no High Court in Pakistan has ever affirmed death sentence in cases where Charas was recovered.

16. In the afore-referred circumstances, while dismissing the appeal we are persuaded to convert the sentence of death of Rehmat Shah Afridi appellant into imprisonment for life. The sentence of fine and sentence off imprisonment in lieu thereof, however, shall remain intact. He shall be given benefit of section 382-13 Cr.P.C. Death Sentence of appellant is not confirmed. N.H.Q/R-65/L Sentence reduced.