2024 P Cr (PLP)

Zaheer-ud-Din Kakar, J.

Abdul Qadir, appellant, was tried by the Special Judge CNS/Additional Sessions Judge-I, Sariab Division, Quetta (the trial Court) in CNS Case No.11 of 2021, for the offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997 (the Act). After full-dressed trial, vide judgment dated 19.08.2022 (the impugned judgment), he was convicted under Section 9 (c) of the Act and sentenced to death. He was directed to pay fine of Rupees One Million, in default thereof to further undergo Six months SI. Death sentence awarded to the appellant was subject to the confirmation by this Court. The trial Court has made confirmation reference to this Court in terms of Section 374 Cr.P.C.

2. The prosecution case, as given in the FIR briefly stated is that on 26.02.2021, on spy information regarding transportation of huge quantity of narcotics by Abdul Qadir and Asmatullah in a Hino Truck bearing registration No.NAE-503 from Quetta to Sindh, the police party headed by SI/SHO Noorullah, started checking of the vehicles at Western Bypass near Akhtar Abad Bridge. At 01.00 a.m. they intercepted the said truck. During interrogation, the person on driving seat disclosed his name as Abdul Qadir, whereas the other person sitting near to him disclosed his name as Asmatullah. On search, from secret cavities of the truck the police party recovered 574 packets of charas, each packet containing 1000 gram, total weighing 574 Kilograms, and 07 packets of opium, each packet containing 1000 gram, total weighing 07 Kilograms, were recovered, which recovered, which were taken into possession through recovery memo, 5 grams of charas from each packet was separated for chemical analysis and sealed in parcel Nos. 1 to 574, whereas 5 grams opium from each packet was also separated for chemical analysis and sealed in parcel Nos. 575 to 581, whereas the remaining were also sealed into parcels. The accused were arrested, murasila was drafted and sent to the police station for registration of the case.

3. After formal investigation, report under Section 173 Cr.P.C was submitted before the trial Court and the appellant was sent to face the trial. The trial Court seized with the matter, framed charge on 20.04.2021 against the appellant, to which he pleaded not guilty and claimed trial. Thereafter, the prosecution was directed to produce its evidence to substantiate the accusation against him.

4. During the trial, the prosecution produced as many as following five witnesses. PW-1 Noorullah SI/SHO, was complainant of the case, and produced his murasila Ex-P/1-A. PW-2 Bashir Ahmed Mashwani SI, was the witness, who kept the recovered narcotics in Malkhana and made entry in Register No.19. PW-3 Safar Khan SI, was a witness of the recovery memo of charas, opium and truck and produced the same as Ex-P/3-A. The whole recovered narcotics, except the parcels which were sent to chemical examination, was produced by him in court in sealed parcels during the trial as a case property. PW-4 Mujahid Abbas SI, 1st Investigating Officer, conducted investigation of the case. He recorded statements of witnesses, produced incomplete challan and FIR as Ex-P/4-A and Ex-P/4-B, respectively. PW-5 Muhammad Idrees SI, 22nd Investigating Officer, produced supplementary challan and FSL reports as Ex-P/5-A and Ex-P/5-B-1 to ExP/5-B-581, respectively.

5. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded innocence and denied all the allegations levelled against him. He recorded his statement on oath under Section 340(2) Cr.P.C and stated that: "I do not remember the date, month and year. I was sitting near Hotel situated at Akhtar Abad. Meanwhile, the police arrived and took me along with Asmatullah to the police station and foisted charas and opium upon me. I do not know who is the owner of the vehicle and recovered material." The appellant produced Abdul Manan in his defence who stated that: "On 26.02.2021 at about 4:30 p.m., I was present at my petrol pump situated at Western Bypass, meanwhile police came and drove a ten wheeler vehicle, after two days I came to know that from the said vehicle, charas has been recovered." On conclusion of trial the trial Court convicted and sentenced the appellant in terms mentioned in para supra, however, acquitted the co-accused Asmatullah. Hence, appellant filed this appeal and the trial Court sent the Reference under Section 374 Cr.P.C. By this single judgment, we intend to dispose of the aforesaid appeal as well as the Reference under Section 374 Cr.P.C.

6. Learned counsel for the appellant contended that the appellant has been falsely implicated in this case and the Police has planted a fake case against him; that the complainant and PWs being police officials are interested and set-off witnesses; that the evidence of such interested witnesses requires independent corroboration, which is lacking in the present case; that the trial court has failed to appreciate the evidence in its true perspective, particularly, failure of the prosecution to establish safe custody and transmission of the contraband, but the trial Court did not consider such essential aspect of the case and has drawn its conclusion contrary to the evidence; that there are material contradictions in the evidence of prosecution witnesses. He lastly contended that the prosecution has failed to prove its case against the appellant, therefore, the appellant is entitled to his acquittal. Conversely, learned APG, while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant who was transporting a huge quantity of contraband, which was recovered from the secret cavities of the truck; that the police party had no enmity to foist such a huge quantity of narcotics upon the appellant at their own. Lastly he prayed for dismissal of the appeal.

7. We have heard learned counsel for the parties and have gone through the record. After having gone through the entire evidence by keeping the defence version in juxta position, we have no hesitation in our mind to hold that the prosecution has proved the factum of recovery on the basis of forthright and convincing evidence. The statements of prosecution witnesses namely Noorullah SI/SHO complainant (PW-1), who reiterated what he had reported in Murasila (Ex-P/1-A), Bashir Ahmed Mashwani SI (PW-2), Incharge of Malkhana, who kept the recovered narcotics in Malkhana and made entry in Register No.19 for onward transmission to the chemical examiner and Safar Khan SI (PW-3) mushir of the recovery memo, have been trashed out in depth who all have supported the prosecution versions and stood firm to the test of cross-examination and nothing beneficial could be elicited casting any doubt on their veracity. The appellant was apprehended at the spot from driving seat of Hino Truck bearing registration No. NAE-503, and on search from the secret cavities of the truck 574 Kilograms charas and 07 Kilograms opium were recovered and samples from the alleged recovered materials were separated for chemical analysis without any loss of time, which were found Hashish Pukhta and Opium. No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motive which was never alleged. In view of the overwhelming prosecution evidence, the defence version has rightly be discarded which otherwise is denial simplicitor and does not appeal to logic and reason.

8. Adverting to the contention of learned counsel for the appellant that despite prior information regarding transportation of narcotics no private person was joined in recovery proceedings, which is clear violation of section 103 Cr.P.C. There appears no force in the contention of learned counsel as application of section 103 Cr.P.C, has been excluded by section 25 of the Act, in narcotic cases. The Hon'ble Supreme Court in number of cases has held that police officials are also competent witnesses and their testimonies cannot be discarded merely for the reason that they are employees of police force. In this regard, reliance is placed on the cases of Zafar v. The State.

9. The learned counsel for the appellant had argued that there are major contradictions in the statements of PWs, which shatter not only their credibility but the very veracity of their statements. However, we could not find that there is any major contradiction which will impeach or affect the credibility of the prosecution witnesses. It is settled that minor contradictions, inconsistencies or improvements on trivial matters, which do not affect the core of the prosecution case, should not be made a ground, on which the evidence can be rejected in his entirety.

10. During course of arguments, learned counsel for the appellant contended that the prosecution could not prove safe custody of the allegedly recovered narcotics and its safe transmission to the Police Station and then to the Laboratory for chemical analysis. However, this argument is of no help to the appellant. The prosecution to substantiate the safe custody and transmission produced SI Bashir Ahmed Mashwani (PW-2) Malkhana In-charge. According to him on 26.02.2021. He was posted as Head Moherer in Police Station, Shalkot. At about 5:40 a.m. SI Mujahid Abbas I.O (PW-4) handed over parcel Nos. 1 to 581 and 1-A to 581-A and truck No. NAE-503, whereof he made entry in Register No.19 and kept in safe custody in Malkhana. Perusal of record reveals that thereafter, on 01.03.2021. Mujahid Abbas SI/IO (PW-4) sent the parcels to Federal Narcotics Testing Laboratory (FNTL), Balochistan, Quetta. The Chemical Examiner after presumptive and confirmative tests, results of tests were found positive. Further, the reports of FNTL (Ex-P/5-B-1 to Ex-P/5-B-581) testifies the fact that sealed parcels were received on 01.03.2021, which were found to be Hashish Pukhta and Opium.

11. As per FIR and statements of PWs, the appellant Abdul Qadir was driving the truck at the time of alleged recovery of contraband while accused Asmatullah was sitting near to him. It is well-settled principle of law that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same. Further when a person is driving vehicle, he is Incharge of the same and it would be under his control and possession, hence whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the cases of Nadir Khan v. The State and Kashif Amir v. State.

12. We have also examined the defence version with care and caution, which is nothing but denial simplicitor with plea of false implication. In the case of Safdar Ali v. Crown, it has been held that in a criminal case it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. While following the above principle, we have examined the versions of both the parties. The version put-forth by the prosecution seems to be trustworthy, based on unimpeachable and tangible evidence. We have minutely scrutinized the statements of appellant and DW and found them not to be consistent, cogent and reliable. Thus, the same are excluded from consideration.

13. After critical analysis, we have arrived at a conclusion without any doubt in mind that the prosecution has successfully proved the case to the hilt. The evidence on record has rightly been appreciated by the trial Court while drawing the judgment impugned herein, suffering from no error of fact, except the quantum of sentence.

14. So far as the quantum of sentence i.e. capital punishment of death is concerned, we do not find in agreement ourselves with regard to the same, for the reasons that neither there is any saza slip nor anything to establish that the appellant is previously involved in any similar criminal case. Even, during the course of trial nothing could be brought on record by the prosecution in this regard. Hence it can safely be held that the appellant is first offender. Thus, in these circumstances, the death sentence awarded to the appellant is quite harsh. The offence was committed on 26.02.2021, at that time in Section 9 (c) of the Act, both death sentence as well as, imprisonment for life have been mentioned. Therefore, the trial Court awarded death sentence to the appellant. In Rehmat Shah Afridi's case, the Lahore High Court held the following principle: "

Sentence

Section 9 of the Narcotic Substances Act, 1997, although does not create any distinction between various kinds of narcotic substances and prescribes only a minimum sentence in case the same exceeds ten kilograms, yet the Court has to consider cases in which sentence of death or the sentence of imprisonment for life should be awarded. The same was affirmed by the Hon'ble Supreme Court in the case of Muhammad Tariq v. The State. 15. Besides, through the recent amendment in Narcotic Substances Act i.e. the Act No. XX of 2022 promulgated on 06.09.2022 and subsequently amended Act No. XXXVIII of 2023 promulgated on 05.08.2023, Death punishment has been omitted and now the maximum punishment in narcotic cases is life imprisonment with fine. 16. For what has been discussed above, while dismissing the appeal, we are persuaded to convert the sentence of death of the appellant Abdul Qadir son of Lal Muhammad into imprisonment for life. The sentence of fine and sentence of imprisonment in lieu thereof, however, shall remain intact. Benefit of Section 382-B Cr.P.C is also extended in favour of the appellant. Death sentence of the appellant is not CONFIRMED and Murder Reference No.14 of 2022 is answered in Negative. JK/47/Bal Sentence modified.