TASSADUQ HUSSAIN JILANI, J. - Appellant Rehmat Shah Afridi son of Haji Khilji Khan Afridi was tried by Syed Kazim Raza Shamsi, Special Judge, Anti- Narcotics, Lahore (in the case registered vide F.I.R.
No. 11/1999, dated 2.4.1999 under Section -9(c) of the Control of Narcotic Substances Act, 1997, Police Station ANF, Lahore) and vide the judgment dated 27.6.2001, he was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to death. He was also burdened with a i.e of rupees one million in default whereof he was further directed to undergo S.I. For two years.
2. The prosecution case, as given in the FIR, briefly stated is that the appellant was involved in smuggling of narcotics at international level; that his activities were being monitored; that on the fateful night at about 1.30 a.m. On an information received to the effect that the appellant, having narcotics, was to come out of the Pearl Continental Hotel, a raiding party was constituted consisting of several officials of the Anti-Narcotics Force, at about 3.45 a.m. Appellant's car came from the Hotel side which was intercepted, the appellant was on the driving seat who introduced himself as Editor-in-Chief of the daily newspaper Frontier Post, he was being accompanied by two others i. e. Naik Muhammad sitting on his side and Lai Saeed sitting on the rear seat. All the three were arrested. Rehmat Shah Afridi appellant himself opened the Diggi of the car from where twenty packets (Total weight: 21 Kilograms) of charas were recovered lying underneath the spare wheel of the car. The Investigating Officer separated ten grams of charas from each packet as samples and prepared twenty sealed parcels for onward transmission to the office of the Chemical Examiner. A Kalashnikov along with three magazines containing twenty bullets each were recovered from Naik Muhammad, while a Kalashnikov along with three magazines containing twenty rounds each were recovered from Lai Saeed. From the Dashboard of the car, aa pistol .30 bore along with two magazines containing i.e rounds each, the licence of the Pistol, Registration- Book of the car and other documents were taken into possession. During investigation, the appellant allegedly disclosed that sixteen maunds of Charas sealed in a truck had been parked near Faisalabad and he could have it recovered. The Investigating Officer sent complaint (Exh.PA) to the Police Station of ANF on the basis of which Nasir Aziz, SI registered formal FIR (Exh.PA/1).
3. During trial prosecution examined nine witnesses. PW1 is Abdul Ghafoor, Constable who stated that having received twenty sealed parcels of charas, delivered those to the office of the Chemical Examiner the same day. PW2 is Muhammad Yaseen, HC.' According to him, in his capacity as Moharrir Malkhana, he received twenty sealed parcels on 2.4.1999 containing charas from Rana Ibad Ali (PW9) which he kept in Malkhana in safe custody and on 5.4.1999 were handed over to Abdul Ghafoor, Constable. PW3 is Nasir Aziz who lodged the formal FIR. PW4 is Major Abdul Rab. He, at the time, was Deputy ^Director of Anti-Narcotics Force. He acted as under-cover officer with the assumed name of Khalid. He got introduced to Rehmat Shah Afridi through one Javed. He held' telephonic conversation with the appellant (which was duly taped) and held meetings with him in PC Hotel in Rooms Nos. 601 and 603 which were also fully video tapped. The audio and video cassettes were duly exhibited along with transcripts (Exh. A/1-8 and V/1-4) and the record of mobile phones used by the appellant was also tendered in evidence (Exh.PD/1-50). Copies of reservation of rooms were placed on record as Exh.PE/5). He deposed that the appellant agreed to supply charas to him for a consideration of $ 100 per kilogram for delivery in Pakistan and $ 200 per kilogram for delivery in USA. He further deposed that the appellant entered into an agreement with him for supply of 1300 kilograms of charas; that latter told him that half of the consignment was reaching Faisalabad that day and that payment of the price of charas i.e. Rs.66,30,000/- shall have to be made to him in Pearl Continental Hotel. He further told that he had brought some charas with him in his car ns a gift. PW5 is Captain Muhammad Hashim Dogar who prepared the audio and video cassettes (A/1-8 and V/1- 4. He certified the preparation of the transcripts of the afore- referred audio and video, exhibits. PW6 is Asif Muzammal Assistant Manager Coordination, Mobil Link who proved the record pertaining to the mobile telephone number of the appellant and of Captain Muhammad Hashim Dogar which was used by Major Abdul Rab, Deputy Director ANF Lahore (PW4) bearing No. 550716. PW7 is Syed Hasnain Raza who was the Manager of Pearl Continental Hotel, Lahore. He produced record pertaining to Rooms Nos. ,439, 441, 601 and 603. PW8 is Captain Mian Faruq Aziz, Assistant Director, Police Station ANF, Punjab who was member of the raiding party.. He arrested the appellant and the co-accused on the. Day of occurrence. He is a witness to the recovery memo, of Charas (Exh.PG) and of the recovery memo, of some of the articles (Exh.PH). PW9 is Rana Abad Ali. He is also a recovery witness, complainant and the Investigating Officer. The report of the Chemical Examiner with regard .To the samples was found to be positive and the same is Exh.PL. Exh.PJ and Exh.PK are orders passed by the learned Trial Court with regard to the destruction of the case property under Section 516-A, Cr.P.C.
4. In support of this appeal, learned counsel for the appellant Syed Ehsan,/their Shah, Advocate, submitted as under:-
(i) That there is^nothing on record to indicate that PW4 Major Abdul Rab was duly appointed or authorized by the Federal Government in. Terms of Section 24 of the Control of Narcotic Substances Act-, 1997 to act as an under-cover-officer in ; absence of which all proceedings prior to the raid were illegal and cannot be used as evidence against the appellant;
(ii) That no audio or video cassette was prepared prior to the registration of case. If those had been prepared, same would have find mention in the case registered;
(iii) That even if the story preceding the raid is accredited with truth; the same is of no avail as Charas allegedly recovered was allegedly brought by the appellant as a gift whereas the conversation leading to the raid suggests that there was a sale transaction between the appellant and one Mr. Rich for whom Major Abdul Rab (PW4) was an assumed agent;
(iv) That the transcripts of audio and video cassettes are not incriminating because, firstly, there is nothing in the conversation to indicate that any charas was being given as a gift to Major Abdul Rab (undercover officer) and, secondly, there is nothing in those cassettes to indicate that Major Rab (PW4) left Rehmat Shah Afridi appellant in the Hotel room and himself went out to bring the money for the alleged deal;
(v) That the case property was not produced before the learned Trial Court and that the same was allegedly destroyed in absence of the appellant by an order of the Court passed without hearing him and that the manner in which the case property was destroyed indicates no such narcotics substance was recovered;
(vi) That no samples of charas were taken into possession prior to being destroyed under Section 516-A, Cr.P.C, which is violative of the mandatory provision of law. In support of the submissions made, reliance was placed on Shahmore v. The State (PLD 2003 Kar. 230), Muhammad Tayyab v. The State (2002 P.Cr.L,J. 1889), Naik Muhammad v. The State , (2003 PCrR (Pesh)*471), Syed Karim v. Anti Narcotics force. (PLD 2003 Kar. 606) and Nawab Ali v. State (PLJ 1995 FSC 90).
5. Learned Special Prosecutor for Anti Narcotics Force, Khawaja Sultan Ahmad, Advocate defended the impugned judgment and contended as under:-
(i) That the Control of Narcotic Substances Act, 1997 is a special Act and the evidence on record has to be examined in the light of the special law. In terms of Section 29 of the said Act, once the prosecution establishes that an accused was found in possession of any narcotic drug, psychotropic substance or control substance or any cannabis resin or opium poppy plant on a land cultivated by the accused, or any apparatus used for the production or manufacture of any of the afore referred articles, then a presumption of guilt would arise against the accused in the event of his failure to satisfactorily account for the same;
(ii) That the prosecution produced ample evidence to prove the case i.e. Through witnesses, audio and video cassettes, Chemical Examiner's report. The onus thereafter shifted on the accused/appellant to satisfactorily explain the recovery of narcotics which burden of proof he has failed to discharge.
(iii) That the audio and video cassettes were duly exhibited, It proved the conversation between the accused and the under-cover officer preceding the recovery of the narcotics substance;
(iv) That copies of those Exhibits and their transcripts were delivered to the accuser before the commencement of trial along with the statements of the- prosecution witnesses, recorded under Section 161, Cr.P.C. Those exhibits, according to him, are relevant also because there is evidence to indicate that the appellant had a business of narcotics both within and outside the country. These exhibits stand proved, he contended, for following reasons:-
(a) The person who had conversation with the accused appeared as PW4 (Major Abdul Rab);
(b) The person who recorded the conversation appeared as PW5. (Captain Muhammad Hashim Dogar);-
(c) That the witnesses appeared to state that the audio and video cassettes remained in safe custody;
(d) That the recovery of narcotics was proved beyond reasonable doubt by PW1 Abdul Ghafoor, PW2 Muhammad Yasin, PW9 Rana Abad Ali and the report of the chemical examiner.
(v) That in the face of the afore-referred evidence, a heavy burden was cast on the accused/appellant to explain as to how he was in possession of such huge quantity of narcotics.
To discharge the said heavy burden, the appellant did not adduce any evidence whatsoever but relied on his own statement under Section 342, Cr.P.C, and did. Not even appear as his own witness; ,
(vi) That the learned Trial Court was well within its power in terms of Section 516-A, -Cr.P.C, to direct destruction of the narcotics and the Court did pass the order on 22.6.2000 on the Application of the Assistant Director Anti .Narcotics Force dated 30.5.2000 in which notice was issued to the appellant, the same day i.e. For 16.6.2000, the application could not be taken-up on 17.6.2000 as the Presiding Officer was on leave "and it was allowed on the next date of hearing i.e. 22.6.2000. Pursuant to this order, Judicial Magistrate Section 30, visited Police Malkhana, examined 31 sealed parcels, descaled them and randomly selected parcels Nos. 15, 20, 25 and 31 and took one slab from each parcel whereafter he resealed all the parcels and on 27.11.2000 under his own supervision those slabs were destroyed. On the afore-referred date, the Magistrate issued certificate (Exh.PH/1) to the effect that "parcels bearing 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". At no stage the appellant challenged the recovery or the contents of the packets/parcels recovered from him;
(vii) That in his statement under Section 342, Cr.P.C, he admitted that the car in question (Exh.PH) was his car and that the mobile telephone from which conversations took place which was taped belonged to him. In these circumstances the recovery against the appellant stands proved beyond any shadow of doubt to sustain the impugned conviction;
(viii) 0n Court query with regard to the quantum of sentence, learned Special Prosecutor Khawaja Sultan Ahmad, in all fairness, admitted that the sentence of death is rather harsh but nevertheless this sentence is provided under the law. However, he further added that under Section 9(C) of the Control of Narcotic Substances Act, 1997, the Court has the discretion to award either of three kinds of sentences i.e. Death, imprisonment for life or imprisonment which may extend to fourteen years and also i.e which may be up to one million rupees. The minimum sentence as provided in the same section is that in case the narcotics substance exceeds ten kilograms, the punishment shall not be less than imprisonment for life, In absence of any guideline, he further added, the Court can keep in mind the nature of narcotics substance recovered, the quantity and the previous convictions, if any.
6. Ch. Muhammad sulman, Additional Advocate-,. General Punjab, who was called to assist the Court, on the question of sentence, submitted that the law does not create any distinction between various kinds of narcotics so far as the question of sentence is concerned and if the quantity recovered falls within the mischief of Section 9(c) ibid then the maximum sentence of death is neither harsh nor illegal. On a Court query, he conceded that so far no High Court has ever confirmed death sentence in a case in which the narcotics substance recovered was Charas.
7. Having heard learned counsel for the parties, the learned Law Officer and having gone through the evidence on record we are of the view that this appeal raises following propositions for consideration:-
(i) Whether the prosecution has successfully raised the presumption of guilt in terms ol Section 29 of the Control of Narcoti:: Substances Act, 1997 and whether th appellant has discharged the onus to rebut th<; said presumption?
(ii) What is the evidentiary value of the video and audio tape conversation. Has the. Said conversation brought to light the antecedents of the appellant in narcotics trade and has the effect of proving the subsequent transaction i. e. The recovery of narcotics from appellant's car?
(iii) Whether' destruction/disposal of property in terms of Section 516-A, Cr.P.C, has substantially prejudiced the case of the appellant and had the effect of vitiating the trial or in the facts and circumstances of this case is an irregularity which stood cured by the evidence led and the conduct of the appellant during trial?
(iv) Whether the statement of Major Abdul Rab (PW4), who acted as an under-cover officer, without the permission in writing of the competent authority under Section 24 of the Control of Narcotic Substances Act, 1997, is admissible and whether he was an accomplice not worthy of credit?
(vi 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 Narcotic Substances Act, 1997 and what guidelines this Court lay down in these proceedings?
PROPOSITIONS (I) & (II):
(i) Whether the prosecution has successfully raised the presumption of guilt in terms of Section 29 of the Control of Narcotic Substances Act, 1997 and whether the appellant has discharged the onus to rebut the said presumption?
(ii) What is the evidentiary value of the video and audio tape conversation. Has the said conversation brought to light the antecedents of the appellant in narcotics trade and have the effect of providing the subsequent transaction i. e. The recovery of narcotics from appellant's car?
8. Drug trafficking is a menace both at domestic and global level. Countries all over the world' have enacted special laws to combat this crime. Promulgation of the Control of Narcotic Substances Act, 1997 is a special law which reflects the resolve of law-maker to deal with these offences, It has spelt out the offences, has laid down procedure for the arrest of the accused, for inquiry, investigation and trial of those offences. Realizing that the ambit of contraband activity and the criminal transactions may entail sophisticated conspiracy and methodology, the procedure laid down under this law has certain special features. For instance Section 29 of the Act raises a presumption in law that an accused has committed an offence if he is found in possession of any narcotic drug/substance or material mentioned therein unless he satisfactorily explains and proves to the contrary. But to raise such a presumption in law, the initial burden continues to be on the prosecution, It is only when the persecution has successfully discharged its burden of proof that the onus would shift on the, accused to rebut the said presumption, which the law has raised, In the case in hand, the prosecution has produced the following set of evidence to discharge the initial burden of proof:-
(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 and 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 PW8 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 PW8 Captain Mian Faruq 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 PW8 is further corroborated by the statement of PW9 Rana Abid Ali, Assistant Director A-not-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 can but not on the Plantation 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 (PW4) 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 had 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. Rich of USA. On latter's behalf he struck a deal with the appellant, In term$ 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 Crl. Appeal No. 1067/2001 and Crl. A. No.297-J/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. I, at page 545, 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 of 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 nosographic 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 expressions, ne was offering to supply a less harmful-narcotics (Charas) and said that even if he was offered a billion dollars, he would not deal in the deadly narcotic (Heroin). He told PW4 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 (PW5) 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' refers to all kinds 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.
Wight 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 night 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 a 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 AH R. v. Ashiq Hussain (1965 2 All E. R.), S. Partap Singh v. State of Punjab (AIR 1964 S.C. 72), R.M. Ma/kani v. State of Maharashtra (AIR 1973 S.C. 157)^ and Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehr a and others (AIR 1975 S.C. 1788);
(ix) Appellant's learned counsel laid down 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 (PW4) 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 PW8 Captain Mian Faruq Aziz, who was a serving Army Officer and a one of the witness 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 and 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 S.C.
568) relied on tape recorded conversation between Senator Saifur Rehman In charge 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 his 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 PW4 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, he 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 tides 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.
PROPOSITIOIM(III):- 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 AH 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 the Presiding Officer was on leave and the case was adjourned to 30.6.2000. However, on 22.6.2000, the learned Trial 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 this 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 In charge of the Police Sitation 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 Nos. 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 In charge of Police Station, Anti-Narcotics Force, Lahore for safe custody and further proceedings under Section 516-A, Cr.P.C."
Ultimately, after i.e 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 Farm Defence Road near Headquarters Pakistan Rangers (Punjab) Lahore, the '"in charge Police Station Anti- Narcotics Force Lahore produced 17 sealed parcels containing Charas involved in the subject case before me for destruction. Parcels bearing 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 17.6.2O0O, 8.7.2000, 24.7.2000, 15.8.2000,28.8.2000, 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 his 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 and 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 PW9 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 AH 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 Malik Ta/ib Hussain v. The State (1998 M LD 506) wherein, at page 51 3, 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 51 6-A, Cr.P.C, to which the proviso is togged 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 as it may, and 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 sit is shown to have resulted in grave injustice or 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 case is not disputed nor it is disputed or denied that the same was taken as sample from 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 (PW4), who acted as an under-cover officer, without the permission in writing of the competent authority under Section 24 of the Control of Narcotic Substances 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 (PW4), 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 (PW4) acted as under-cover officer without any authorization in writing by the competent authority under Section 24 of Control of Narcotic Substances 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 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 out by me in Ambujam v. The State, 1953 Mad., W.N. Cr. 156: AIR 1954 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 dos 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 Narcotic Substances 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 provisions of Sections 6, 7 or 8 shall be punished with-
(a) imprisonment which may extent to two years, or with i.e, 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 i.e, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds I one hundred grams but does not exceed one kilogram;
(c) Death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to i.e 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 kilogram 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) often 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 31A provides death penalty for certain offences after previous conviction.
16. It is not the prosecution case that the appellant is a previous ,convict. The transcripts nt the video tape conversation placed on record indicate that the appellant expressed abhorrence tor trading in Heroin even if he was offered a hefty price. Learned Special Prosecutor Khawaja Sultan Ahmad, Advocate, on a 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 sulman 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 i.e and sentence of imprisonment in lieu thereof, however, shall remain intact. He shall be given benefit of Section 382- B, Cr.P.C. DEATH SENTENCE OF APPELLANT IS NOT CONFIRMED.