Tassaduq Hussain Jilani, J.--This judgment shall dispose of Criminal Appeal No, 1067/2001 (Rehmat Shah Afridi vs. The State) and Crl. Appeal No, 297-J/2001 (Abdul Malik & Missal Khan vs. The State) as they arise out of the same judgment dated 27.6.2001 passed by,the learned Special Judge Anti-Narcotics, Lahore (in the case registered vide FIR No, 12/99 dated 2.4.1999 under Sections 9 and 115 of the Control of Narcotic Substances Act, 1997, Police Station ANF Lahore), vide which, having tried the appellants convicted them in the following terms:--
(a) Appellant Rehmat Shah Afridi was convicted under Sections 9(c)/15 of the Control of Narcotic Substances Act, 1997 and sentenced to death. He was further directed to pay a fine of Rupees one million in default whereof to undergo imprisonment for two years;
(b) Appellants Missal Khan and Abdul Malik were convicted under Section 9(c)/15 of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life each. They were further directed to pay a fine of Rupees two lac fifty thousand each in default whereof to undergo imprisonment for one year each. Benefit of Section 382-B Cr.P.C. was extended to them.
2. The prosecution story as given in the FIR briefly stated is that appellant Rehmat Shah Afridi (who was under arrest in the case registered vide FIR No, 11/99 dated 2.4.1999 under Sections 9(c)/15 of the Control of Narcotic Substances Act, 1997, Police Station ANF, Lahore), during investigation, disclosed that he had arranged an additional charas weighing sixteen mounds concealed in a truck parked at a place near Faisalabad and that he could lead to its recovery. Thereupon a team of Anti-Narcotics Force Officers consisting of complainant Rana Abad Ali Assistant Director (PW-5), Syed Hassan Ijaz Kazmi Deputy Director, Captain Hashim, Captain Nooruddin, Captain Mian Farooq Aziz, Assistant Director Muhammad Riaz Somro, Assistant Director Muhammad Younis Butt and certain other officials mentioned in the FIR was constituted which, while riding police vehicles mentioned in the FIR, proceeded to Faisalabad alongwith the appellant (at the point the appellant had indicated), the raiding party found a truck Bearing No, MRB 2373 parked on the left side of the road, on pointation of the appellant the raiding party arrested two persons (appellants. Abdul Malik and Missal Khan). Appellant Rehmat Shah Afridi himself boarded the truck from the rear side. All the three appellants pointed out the concealed area covered with a wooden plank. This was removed by the appellant with the help of a "PAANA" from where 31 plastic bags were recovered.
Each bag contained twenty packets of charas (there were in all twenty packets weighing 651 kilograms). From each packet ten grams of charas was separated to be sent to the office of the Chemical Examiner. Thus sixty two samples were taken which were sealed and each parcel was stamped with ANF.
2. During trial prosecution examined PW-1 who delivered the parcels of samples in the office of the Chemical Examiner. PW-2 is Muhammad Yaseen Moharrir/HC who deposited the case property in the Malkhana and sent the sealed parcels to the office of the Chemical Examiner. PW-3 is Nasir Aziz Inspector who formally recorded the FIR (Exh.PA/1). Dilawar Jhon SI appeared as PW-4 who attested the recovery . memo (Exh.PB) regarding the recovery of Charas and truck (Exh.PC) and Exh.PE respectively and Rana Abad Ali who conducted the investigation of the case.
3. The appellant/accused Rehmat Shah Afridi, when examined under Section 342 Cr.P.C., denied the prosecution story. According to him, no charas was recovered; that the 'samples taken were destroyed as there was no charas in them and that the entire prosecution is motivated by. malice.
In answer to the query as to why this case against him, he replied as under: "The ANF people were against for the publication of various news items against them in my Newspaper Frontier Post likewise the Govt. of Mian Nawaz Sharif were also against me for publication in the Frontier Post against them. The clippings of such news items may be red in evidence in my defence. I will make a detail survey of the above items in the statement u/S. 265- F(5) Cr.P.C."
Appellant Abdul Malik admitted that he was apprehended from the truck but explained that he was a crush labourer; that he boarded the truck for doing labour from Lahore; that he had no knowledge that narcotics were concealed in the truck and that he did not know Rehmat Shah Afridi his co-accused. Missal Khan appellant/co-accused, gave a similar statement but none of the appellants/accused produced any witness in defence.
4. Syed Ehsan Qadir Shah, Advocate for appellant Rehmat Shah Afridi, in support of his appeal, made following submissions:--
(i) That the case is false and product of malafides and since the appellant Rehmat Shah Afridi was Editor-in-Chief of the Frontier Post, which used to publish news against the sitting Government of Nawaz Sharif, he got annoyed and, therefore, he was involved in the instant false case;
(ii) That no independent evidence has been led to prove the charge against him; (iii)That the manner in which the alleged recovered narcotics were destroyed in purported exercise of Section 516-A Cr.P.C. makes the whole case doubtful;
(iv) That it is repellent to common sense that appellant would make a confession during investigation that he could lead to the recovery of Charas from a truck near Faisalabad and that there is nothing on record to indicate that the appellant had exclusive knowledge of the place of recovery.
5. Learned defence counsel appointed by the office, namely, Mr. Muhammad Amin Dar, Advocate did not appear, therefore, this Court was pursuaded to appoint Mrs. Erum Sajjad Gul, Advocate as defence counsel for appellants, namely, Abdul Malik and Missal Khan. In support of Cr1. Appeal No, 297-J/2001, she made following submissions:--
(i) That appellants did not have the knowledge about the narcotics substance having been placed in a hidden safe in the truck. That being so, the essential ingredient of a crime, namely, mens rea is absent. She referred to para 14 of the impugned judgment to contend that even the learned trial Court was conscious of the fact that the appellants may not have the knowledge of the narcotics;
(ii) That none of the appellants led to the recovery of the narcotics substance and it was appellant Rehmat Shah Afridi who according to the prosecution, got removed the wooden 'plank behind which was found the narcotics substance;
(iii) That the appellants were neither represented during trial nor before this Court, therefore, they deserve the indulgence of this Court.
In support of the submissions made, learned counsel relied on Nek Muhammad and another vs. The State (PLD 2003 Peshawar 130) and Syed Karim vs. Anti Narcotics Force (PLD 2003 Karachi 606).
6. Khawaja Sultan Ahmad, Advocate/Special Prosecutor for ANF defended the impugned judgment and contended as under:--
(i) That appellant Rehmat Afridi, during investigation when under arrest (in the case registered vide FIR No, 11/99 dated 2.4.1999 under Section 9(c)/15 of the Control of Narcotic Substances Act, 1997, Police Station ANF, Lahore), led the Anti-Narcotics raiding party all the way from Lahore to Faisalabad to a place on road-side where the truck in question was parked of which he had the exclusive knowledge and he, alongwith appellants Abdul Malik & Missal Khan, got recovered the narcotics by himself removing the wooden plank behind which it was hidden. The witnesses, who deposed before the learned trial Court about the initial disclosure and the ultimate recovery of narcotics, are independent witnesses with whom none of- the appellants attributed any enmity and there is no reason why they should be disbelieved;
(ii) That a huge quantity of narcotics i,e, sixteen maunds of Charas was recovered from the truck which was in exclusive possession of appellant Rehmat Shah Afridi and the co-appellants. It is in evidence that appellant Abdul Malik had key of the truck while from appellant Missal Khan Registration Book of the truck was recovered. The presumption under Section 29 of the Control of Narcotic Substances Act, 1997, in the afore-referred circumstances, would arise against all the appellants and they failed to explain the recovery or even about the truck. He, however, added that at best the benefit could be extended to the appellant from whom only Registration Book was recovered;
(iii) That both the appellants admittedly are residents of Peshawar. They had no lawful business/work to go all the way from Peshawar to Faisalabad in an empty truck except to deliver the narcotics substance to the agent with whom the principal accused, namely, Rehmat Shah Afridi had struck a deal;
(iv) That the prosecution having discharged the initial burden had proved the case beyond reasonable doubt. A presumption stood raised against the appellants in terms of Section 29 of the Control of Narcotic Substances Act, 1997. The onus, therefore, shifted on the appellants to disprove the presumption so raised. The appellants have failed to discharge the said onus. On question of sentence, he submitted that the law provides death as the maximum sentence and the arguments can be raised both in favour and against the award of death sentence to the principal accused, namely, Rehmat Shah Afridi appellant i,e, he is an educated person holding a respectable status in the society, it was not expected of him to indulge in such kind of heinous crime whereas equally strong argument can be raised that death sentence is harsh as the appellant is an educated person and that he be given a chance in life;
(v) That since no criterion' is laid down in law, it is for this Court to interpret and lay down the guidelines on question of sentence.
7. We have heard learned counsel for the parties, have gone through the evidence, the impugned judgment and have given anxious considerations to the submissions made at the bar.
8. Appellant Rehmat Shah Afridi (in Crl. A. No, 1067/2001) was in custody in connection with another case (FIR No, 11/99 dated 2.4.1999 under Section 9(d) of the Control of Narcotic Substances Act, 1997, Police Station ANF, Lahore), which is subject-matter of Criminal ,Appeal No, 1066/2001, when he disclosed that a truck Bearing No, MRB 2373 was parked on the Katcha Road Faisalabad and stated that the said truck contained sixteen maunds of Charas. It was on this disclosure that a raiding party of Anti-Narcotics Force officials took him to the afore-referred place. The appellant Rehmat Shah Afridi, alongwith co-accused/co-appellants Abdul Malik and Missal Khan, boarded the truck and as per PW-5 Rana Abad Ali, ".... Rehmat Shah Afridi then boarded on the truck on the rear side and pointed the place on the body of the truck which contained charas. Rehmat Shah Afridi and his two co-accused Missal Khan and Abdul Malik opened that cavity where from thirty one torras were recovered. On opening each torra, twenty, packets of charas from each torra were recovered which. weighed 651 kgm in total. I separated ten gm from each packet contained in each torra and made into 31 sealed parcels of the samples and thirty one sealed parcels of the remaining quantity. I took the same into my possession vide recovery memo Exh.PD signed by Captain Nooruddin, Captain Farooq Aziz and Dilawar Jhon SI. Vide same memo I also took into my possession the truck P-1". His statement was corroborated by the afore-referred Dilawar Jan who appeared as PW-4. Both these witnesses were subjected to lengthy cross-examination but not a single question was asked as to why they should depose falsely against the appellants. The report of the Chemical Examiner (Exh.PG) confirms that the narcotics recovered was Charas. The statement of ,appellant Rehmat Shah Afridi before PW-9 Rana Abad Ali would be admissible in terms of Section 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."
Appellants had the exclusive knowledge of the place at Faisalabad where the truck was parked and where the narcotic had been concealed. It was Rehmat Shah Afridi appellant who, alongwith the co-appellants, removed the wooden plank behind which a huge quantity of the narcotics was recovered from a hidden safe.
9. Learned counsel for appellants Missal Khan and Abdul Malik (in Crl. Appeal No, 297-J/2001) tried to plead lack of knowledge about the charas and stated that as per their statements recorded under Section 342 Cr.P.C. both these appellants had boarded the truck from Ravi Road, Lahore for doing the labour and they could not be saddled with the criminal intent. We note that Abdul Malik appellant is a resident of Char Sadda Peshawar whereas Missal Khan appellant is a resident of Tehsil Sarband, District Peshawar. They have given absolutely no explanation as to how they. came all the way from Peshawar to Lahore and then from Lahore to Faisalabad in an apparently empty truck. A huge quantity of charas weighing 651 kilograms was recovered from the truck which was in their exclusive possession and it is in evidence that they alongwith Rehmat Shah Afridi appellant led to its recovery from a hidden safe behind the wooden plank of the truck. In Nasir Khan and another vs. The State (1988 SCM R 1899), Heroin was recovered from a car which was being driven by Sadiq Jan convict and his co-accused was sitting beside him. It was concealed in the rear seat of the car and six other secret cavities specially made in both the bumpers, both the front mudguards, one more near the oil -tank and the other near the Silencer drum. The accused Sadiq Jan pleaded that he did not know as to who was the owner of the car; that he was given the task by Tohr Khan of Khyber Agency to take the car to Lahore; that a messenger brought the message that the said Tohr Khan had gone to Karachi and he should take car to. Karachi. He was on his way when he was apprehended. The co-accused pleaded that he was duped by the co-accused Sadiq Jan. The afore-referred pleas were repelled by the August Supreme Court and it was held as under: "...As being persons incharge of the vehicle for such a long journey they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions-are all dependant on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it ....
10.The prosecution has successfully proved the--posession of the narcotics from all the three appellants, namely, Rehmat Shall Afridi, Abdul Malik and Missal Khan. The appellants in disproof of the presumption under Section 29 of the Act neither appeared nor produced any witness in defence. In the afore-referred circumstances, we are of the view that the prosecution has successfully proved its case to sustain conviction. Crl. Appeal No, 1067/2001 (Rehmat Shah Afridi vs. The State) and Crl. Appeal No, 297J/2001 (Abdul Malik & Missal Khan vs. The State), having no merit, are hereby dismissed. However, coming to the quantum of sentence of death to Rehmat Shah Afridi appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, we have already considered the said question in a judgment of even date delivered in the connected Criminal Appeal No, 1066/2001 (Rehmat Shah Afridi vs. The State) wherein it was held as under: "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 a Court query, in all fairness, admitted that this part of the conversation could te 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 case of Charas."
11. In view of the above observations, we are persuaded to convert the sentence of death of Rehmat Shah Afridi appellant (in Crl. A. No, 1067/2001) to imprisonment for life. However, the amount of, fine and sentence in lieu thereof shall remain intact. All the appellants shall be given benefit of Section 382-B Cr.P.C. Coming to the question of sentence of fine to appellants Abdul Malik and Missal Khan we note there is nothing on record to indicate that they are men of means. In this view of the matter, ends of justice would meet if sentence of fine (to their extent only) is reduced from Rs, 2,50,000/- each to Rs, 20,000/- each only in default whereof they will further undergo RI for two months each. SENTENCE OF DEATH OF REHMAT SHAH AFRIDI APPELLANT IS NOT CONFIRMED.