Abdul Shakoor Paracha, J.--Rooh-ul-Amin son of Said Rehman and Rozi Gul son of Faqir Gul impugn the judgment dated 15.7.2003 passed by the Sessions Judge/Judge, Special Court (CNS)
Rawalpindi, whereby each of the appellants was found guilty under Section 9(c) read with Sections 14/15 of the Control of Narcotic Substances Act, 1997, and sentenced to 7 years R.I with a fine of Rs, 50,000/-, and in default of payment thereof undergo six months R.I. They were, however, extended the benefit of Section 382-B Cr.P.C. This was done in case FIR No, 7 dated 4.7.2002 registered at Police Station A.N.F, Attock.
2. Facts in brief, as disclosed in the FIR, are that on 4.7.2002 Taimur Khan Mahsud (PW-5), Inspector of Police Station ANF, Attock, alongwith Bashir Ahmad Anjum Inspector (PW-6), Muhammad Ramzan ASI (PW-4), Amjad Ali ASI (given up PW) and other officials of ANF under the supervision of Tehseen Dil Khan Assistant Director, Incharge P.S. ANF Attock while present at G.T. Road opposite Police Station Attock Khurd, when at about 4:30 p.m., Force Commander ANF, Rawalpindi, on telephone informed him that Laiq Shah, Roohul Amin and Rozi Gul alongwith their other companions would transport by carry-Suzuki Bearing No, LHV-2452 huge quantity of Heroin while taxi car Bearing Registration No, LHP-9394 would act as pilot for, that vehicle. On this information a raiding party Was constituted and Nakabandi was tightened at that point; at 5 p.m. the said pilot vehicle reached there from Peshawar side in which Ziarat Khan son of Izzat Khan as driver, alongwith Ghani Jan son (sic) conducting the search from inside the said vehicle registration was recovered; the articles of Jamia Talashi from these accused alongwith the car etc. were secured vide recovery memo Ex.. PB and both the accused disclosed that in a short while their companions in Carry Suzuki No, LHV-2452 would reach there while transporting the Heroin; Carry Suzuki (Exh.
P.14) at 6:55 p.m reached there which was stopped and driver Laiq Shah, Roohul Amin and Rozi Gul accused were found present in it who were apprehended; on interrogation accused Rozi Gul disclosed that his co-accused Laiq Shah and Roohul Amin had concealed heroin underneath their seats and thereafter both of these accused brought out one packet each of Heroin and on weighing each packet found containing one Kgm Heroin. It was further mentioned in the FIR that the complainant separated one gram Heroin from each packet, prepared two sealed sample parcels, while the remaining Heroin was sealed in parcels (Exh. P. 15 and P. 16) and secured alongwith other articles/vehicles etc. vide recovery memo Exh. PE attested by Muhammad Ramzan and Amjad. Ali ASIs; he drafted the complaint Exh. PA, on the basis of which FIR was registered. The accused were arrested and after investigation report under Section 173 Cr.P.C. was submitted in Court.
3. All the five accused were charged under Section 9(c) read with Articles 14 and 15 of the Control of Narcotic Substances Act, 1997, to which they pleaded not guilty and claimed trial.
4. To prove the recovery, prosecution produced Muhammad Ramzan, ASI, one of the recovery witnesses, as PW-4. Taimur Khan Mahsud, Inspector, complainant of the case, appeared as PW-5, who narrated the contents as alleged in the complaint Exh. PA. Bashir Ahmad Anjum, Inspector, the Investigating Officer of the case, appeared as PW-6, Report of the Chemical Examiner was produced in evidence as Exh. PK, which was in positive.
5.Statements of the five accused under Section 342 Cr.P.C. were recorded. Ziarat Khan, accused, in his statement while denying the allegations of acting as driver of the pilot car stated that actually Car No, LHP-9394 owned by Gul Muhammad was being plied by him as taxi; on 4.7.2002 at about 7 a.m. his co-accused Ghani Jan hired that taxi from Peshawar for Bari Imam Islamabad and he alongwith his wife and children was traveling and at 9 a.m. they were stopped at Attock bridge by ANF officials who demanded the documents for checking; family members of Ghani Jan accused were allowed to go back to Peshawar and subsequently they were taken to police station, ANF, Attock and for the first time they saw their co-accused in police station at the evening time. He further stated that the accused of other vehicle were not known to him previously. He denied the report of the chemical examiner as correct and claimed innocence. He did not appear as his own witness under Section 340(2) Cr.P.C.
6. Accused Ghani Jan in his statement under Section 342 Cr.P.C. also narrated the same version as produced by his co-accused Ziarat Khan. He denied the recovery of anything from his possession as well as his connection with the accused of the other vehicle. This accused also opted to lead defence evidence as well as to appear as his own witness.
7. Accused Liaq Shah in his statement under Section 342 Cr.P.C. also did not admit the allegations leveled by the prosecution about carrying heroin in Suzuki carry. He also showed his ignorance about the alleged pilot car Exh. PI and presence of his co-accused in that car. In reply to Question No, 3 he stated that, "In fact I am the driver of said vehicle owned by Muhammad Ayub son of Aitebar Gul r/o Hayat Abad Peshawar. On 4.7.2002 this taxi was hired by Roohul Amin and Rozi Gul my co-accused from taxi stand Peshawar for Rawalpindi. Those accused were having with them a T.V. The fare was fixed as Rs, 1500/, When we reached near Aman Garh the vehicle went out of order and we got repaired this vehicle and when we reached Attock Khurd and ANF officials stopped the vehicle and I stopped the same. They conducted search inside the vehicle and brought down the T.V. I told them that this T.V. belonged to the passengers. Those officials had exchanged hot words with Roohul Amin and Rozi Gul my co-accused, as ANF officials asked to leave the T.V. there. Thereafter we were taken to Police Station ANF, Attock and subsequently it transpired that we were falsely involved in the case."
8. Accused Roohul Amin took the same plea as by his two co-accused, namely, Laiq Shah and Rozi Gul. Accused Laiq Shah, Ghani Jan and Ziarat Khan opted to lead defence evidence. Accused Laiq Shah did not appear as his own witness on oath while rest of the accused in their statements under Section 342 Cr.P.C. refused to do so. Accused Ghani Jan in his statement under Section 340(2)
Cr.P.C. on oath stated that, "It was Thursday and date was 4.7.2002. My wife was pregnant and I promised to distribute a Daig at the Bari Imam. I came to bus stand at New Bus Stand at Peshawar and contacted my co-accused for reaching Islamabad Bari Imam by taxi. My wife and children were with me and we started our journey by taxi at about 7 a.m. and when we reached Attock Bridge there near to the police station some police officials were present who signaled to stop and the taxi was stopped. The driver Ziarat Khan accused went down from the taxi and he was inquired about the appears etc. When that conversation lingered on I also went down and asked those police officials that my wife and children are with me therefore they should allow us to leave. Those police officials however exchanged hot words with the driver and those police officials sent back my wife and children to Peshawar by a bus and myself and my co-accused were taken to police station. There we were told that after getting checked the documents we would be released within 20 minutes but subsequently we were falsely involved in this case. I am innocent."
9. Accused Ziarat Khan in his statement under Section .340(2) Cr.P.C. stated that, "I am a taxi driver.
I use to drive the taxi bearing Registration No, LHP-9394 owned by Gul Muhammad resident of Peshawar. On 4.7.2002 at 7 a.m. Ghani Jan accused alongwith his wife and three children and hired my taxi from Naya Adda Peshawar for Bari Imam Islamabad and fare was fixed as Rs, 2500/-.
When the taxi reached Attock it was stopped by police for checking of the registration book and driving licence and they also asked that the vehicle should also be checked from a computer. I asked the policemen that there is reason to get checked the vehicle from computer because it is a taxi cab and i would get it checked on my return and due to this reason I had exchanged hot words with the police and I was taken to police station. In police station I was told that after 20 minutes we would be released. The wife and the children of accused Ghani Jan were sent back to Peshawar from the place where we were apprehended. I am innocent sand have no concern with the alleged recovery as well as with other co-accused."
10. Gul Muhammad son of Sher Muhammad appeared' as DW-1 whereas Mst. Shahida wife of Ghani Jan accused appeared as DW-2. After completion of evidence of both the sides the, trial Court convicted the appellants and their co-accused Laiq Shah as aforesaid, whereas Ziarat Khan and Ghani Jan were acquitted of the charge.
11. Before us, learned counsel for the appellants contends that there are major contradictions in the statements of the prosecution witnesses and the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt; that the trial Court failed to appreciate the defence version of the appellants and gave undue weight to the prosecution evidence; that only 1/1 gram out of the alleged recovered heroin was sent to the chemical examiner therefore at the maximum the case falls under Section 9(a) of the CNSA which is punishable only for two years.
Reliance is placed on the cases titled Nasir Khan vs. The State and Khaskheli Begum vs. The State (Criminal Appeals Nos, 90/97 and Crl. M. No, 679 if 1996), wherein a Division Bench of this Court held that the punishment can be awarded only to the extent of quantity of Narcotic sent to the chemical examiner; that not a single independent witness from the locality was associated despite the fact that the alleged search of the appellants was conducted at Grand Trunk Road in presence of the general public.
12. On the other hand, the learned counsel for the State contends that the. prosecution witnesses had no enmity with the appellants; they were apprehended while carrying heroin in huge quantity; the statement of the recovery witness Muhammad Ramzan, PW-6, is corroborated by the statement of Taimur Mahsud Khan, Inspector, complainant of the case, who appeared as PW-5 and reiterated his stand taken in the complaint Exh. PA. The recovery witness's statement is corroborated by the statement of PW-6 Bashir Ahmad Anjum, Inspector, who conducted the investigation and appeared as PW-6. The appellants have admitted the traveling by them on the G.T. Road and also admitted search made by the ANF Staff. Their defence is not plausible. He states that it is not mandatory for the ANF people to take more quantity of Heroin from each packet for sending the same to the Chemical Examiner. To substantiate his arguments, the learned counsel has placed reliance on Section 36 of the CNSA, 1997 and the case reported as Mst. Anwar Bibi vs. The State (2004 P.Cr.L.J. 692) and Ali Muhammad another vs. The State (2003 SCM R 54). The recovery of heroin was made from the Suzuki Carry presence of which heroin was disclosed by Rozi Gul and his statement under the law is admissible who stated that the heroin is lying underneath the seats of his co-accused.
13.We have heard the learned counsel for the parties and perused the record. Prosecution has relied on the recovery witness Muhammad Ramzan, ASI, who appeared as PW-4 and stated that at 4.7.2002 he alongwith Taimur Khan Mahsud, Inspector, PW-5, Bashir Ahmad Anjum, Inspector, PW-6, Muhammad Ramzan, ASI, PW-4 and Amjad Ali, ASI, (given-up PW) as well as other officials of ANF was present at G.T. Road, opposite Police Station Attock Khurd under the supervision of Assistant Director Incharge P.S. ANF, Attock. On the information of the Force Commander ANF, taxi car bearing Registration No, LHP-9394 was apprehended, which was being driven by Ziarat Khan accused while Ghani Jan was present with him. Necessary articles were taken into possession vide recovery memo Exh. PB. He further stated that on interrogation by Taimur Khan Mahsud, Inspector, both the accused disclosed that in a short while their companions in Suzuki Carry bearing Registration No, LHV-2452 would reach there while transporting the heroin at about 5:30 p.m. carry Suzuki (Exh. P14) reached there, which was being driven by Laiq Shah while his co-accused Roohul Amin and Rozi Gul accused (the appellants) were also present in the said vehicle. On interrogation accused Rozi Gul &closed that his co-accused Laiq Shah and Roohul Amin had concealed heroin underneath their seats and thereafter both of these accused brought one packet each of herein, and the said each packet on weighing contained one K.G. heroin, which was recovered, and the total recovered heroin was 2 K.G. Taimur Khan Mahsud, Inspector separated 1 gram from each of the packets and sealed it into two sample parcels while the remaining heroin was sealed into separate two parcels Exh. P-15 and P.16 while affixing the seals of TK and secured alongwith other articles/vehicles etc., vide recovery memo Exh. PE. The statement of this witness is corroborated by the statement of Taimur Khan Mahsud, Inspector, complainant who appeared as PW-5 and narrated the whole story as contained in the complaint Exh. PA. PW-6 Bashir Ahmad Anjum, Inspector, who also investigated the case, also confirmed the recovery of hug quantity of the heroin from the vehicle which was being driven by the appellants and their co-accused. Report of the Chemical Examiner E.. PK is also in the positive. The appellants in their statements under Section 342 Cr.P.C. have admitted their travelling at the relevant time in the vehicle and their apprehension. There is no requirement of law that one gram from the total recovered narcotic cannot be separated. Section 36 of the CNSA reads as under: "36. Reports of Government Analysts. The Government Analyst to whom a sample of any narcotic drug, psychotropic substance or controlled substance has been submitted for test and Analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority, as may be prescribed. (2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall unless rebutted; be conclusive."
14.In the case reported as Mst. Anwar Bibi vs. The State (2004 P.Cr.L.J. 692) it has been ruled that: "Ss. 9(c) and 36--Appreciation of evidence--Quantity of recovered substance to be sent for Chemical Examination--Contention of the accused was that out of entire lot i,e, 13-1/2 Kgs. Heroin only a negligible quantity had been dispatched to the Chemical Examiner by police and report though was in positive, should be considered to that extent only--Contention was repelled in view of S. 36 of Control of Narcotic Substances Act, 1997 as sample was always part of the total and it would not require that whole quantity should be sent to examiner for the purpose of test."
15.In this view of the matter, we are led to the conclusion that the prosecution was able to prove its case against the appellants beyond reasonable doubt. They have rightly been found guilty under Section 9(c) of the Control of Narcotic Substances Act, 1997 and convicted in accordance with law. No interference by this Court is called for in the well-reasoned judgment of the trial Court.
Resultantly, this appeal fails and the same is dismissed.