1996 PLP 1894 (SCMR)

RAJA AFRASIAB KHAN, J.

On 22nd of April, 1987 at 2-00 p.m., a case under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order) was registered on the statement of Abdul Karim Memon, Excise Inspector, Ubauro with Excise Circle Ubauro against Dost Muhammad, Mukhtiar Ahmad, Mian Muhammad and Qurban Ali on the allegation of possession and transportation of contraband drug through Jeep No. PRK 4509. The Jeep was stopped and checked by the raiding party. In the result, drug was found to have been concealed in it. The recovery of 180 bags of heroin was effected in presence of P.Ws. Dost Muhammad was driving the Jeep while Mukhtiar Ahmad was sitting on the front seat. Mian Muhammad and Qurban Ali were sitting on the rear seat. The Jeep and 180 bags of heroin were taken into possession by the party which consisted of Abdul Karim Memon, Excise Inspector Ubauro, Jamadar Nisar Pathan, Sawar Allah Dayao, Sawar Fazal Din, Constable Abdul Ghani and Constable Bashir Ahmad. The investigator found the accused to be guilty. A challan against them was sent to Court. Prosecution produced Abdul Karim and Jaffar Ali P.Ws. The accused denied the allegations levelled against them while making statements under section 342, Cr.P.C. and also pleaded their innocence. They produced Muhammad Waris, D.W. 1 and Suresh Kumhar, D.W. 2 in support of their defence plea. On 8-5-1988, a learned Additional Sessions Judge, Sukkur held that the offence under Articles 3/4 of the Order had been proved against the appellants. In consequence, he convicted and sentenced the accused to imprisonment for life plus 20 lashes each. They were ordered to pay fine of Rs.10,000 each or in default to suffer R.I. for one year. The convicts appealed against their conviction and sentence. On 22-12-1988, a Division Bench of Federal Shariat Court dismissed the appeal and upheld the conviction and sentence of the appellants. Qurban Ali filed Jail Petition No.5(S) of 1992 while his co-accused Mukhtiar and others instituted Jail Petition No.39(S) of 1993 before this Court. Leave to appeal was granted to the appellant Qurban with the following reasons:

Leave to appeal was also granted to Mukhtiar Ahmad and others with the following order:

Learned counsel submits that there is no evidence to connect the appellants with the commission of crime and as such they are entitled to be released. He argues, in the alternative, that age of Qurban is less than 16 years and as such, his sentence may be reduced substantially to meet the ends of justice. According to the learned counsel, Mukhtiar Ahmad was traveling with Qurban and there was no evidence to demonstrate that he participated in the commission of the crime. The prosecution was required to prove that Mukhtiar traveled knowing that in the vehicle contraband drug was concealed. This duty was not discharged by the prosecution. After hearing the learned counsel for the appellants and reading the record, we find that prosecution had succeeded to prove its case against appellants beyond any reasonable doubt. A consignment of 180 bags of heroin was recovered from the vehicle No.PRK 4509 in which Qurban and Mukhtiar etc. were traveling together. Bashir Ahmad and Jaffar Ali P.Ws supported the prosecution plea that the recovery of heroin was effected in their presence from , the appellants. The appellant Qurban admits in his statement that he is the owner of the Jeep from which heroin was recovered by P.Ws. A half-hearted attempt was made by the appellant by stating that the contraband drug was planted upon them. We do not believe that such a huge quantity of drug would be foisted to falsely implicate the appellants. We will not accept this type of afterthought defence plea. Argument is, therefore, turned down. It may also be observed that no evidence was brought on record to show that appellant, Qurban was of tender age at the time of commission of crime. He appeared to be of mature age and certainly understood the legal consequences of the heinous offence he had committed alongwith other appellants. In such a situation, he does not deserve any leniency merely on ground of young age. Similarly, the remaining accused also acted in unison with Qurban, appellant. They are all equally responsible for the commission of crime. The offence of this magnitude could not have been committed single handedly. They were, thus, suitably sentenced. Prosecution evidence does inspires confidence and is worth reliance. No case for interference could be made out by the learned counsel. The appeals fail and are dismissed. N.H.Q./Q-62/5 Appeals dismissed.