Muhammad Akhtar Shabbir, J.--Muhammad Arshad Qayyum appellant was tried by the learned Addl. Sessions Judge. Rawalpindi in a case FIR No. 606 dated 28 11.2004 under Section 9/C of C.N.S.A.
1997 registered at Police. Station Airport. Rawalpindi, who vide judgment dated 14.1.2006 had convicted the appellant under Section 9/C C.N.S.A 1997 and sentenced him to imprisonment for 14 years R.I. with a fine of Rs 1,00,000/- or in default thereof to undergo further one year R.I. The benefit of Section 382-B Cr.P.C. was also extended to the appellant.
2. Succinctly, the prosecution story as narrated in the FIR by Muhammad Sadiq Qureshi is that on 28.11.2004 he was posted as Inspector Custom at Islamabad Airport. On the same day, Muhammad Nasir-ud-Din Mehboob Collector Customs Rawalpindi, received secret information that heroin may be smuggled through Flight No.PK-785 from Islamabad to London. A raiding party was constituted headed by Malik Amjad Bhutta, Superintendent Custom, Tanvir Naqvi Deputy Supdtt. Custom. Mst.
Rizwana Mdti, Hamad Nawaz, Inspector Custom, Amam Ali Hawaldar custom and Muhammad Sadiq Qureshi. At about 10:30 a.m. during the crearance of flight No.PK-785, a passenger, whose name later on came into his knowledge through British passport and PIA Air Ticket as Muhammad Arshad Qayyum son of Abdul Qayyum r/o Batora Ghurghushti Tehsil Hazro District Attock. At that time, accused was holding 'maroon colour' suitcase and a black colour hand bag. He checked suitcase and hand bag During the search he felt the bottom of suitcase heavy. He broke the bottom of suitcase and an envelope was recovered from the bottom of "maroon colour suit case".
The envelope was wrapped by tape/celophone when he opened and searched the envelope in presence. of PWs, heroin was recovered. He weighed recovered heroin in presence of PWs and its weight was 2500 grams. 10 grams heroin was separated for chemical analysis. He prepared two separate sealed parcels Recovered heroin P-1 was taken into possession vide recovery memo Ex.PA attested by Syed Tanvir Naqvi and Hamad Nawaz PWs. He also took into possession suitcase P2, 30 suit pieces P-3/1-30, turban P-4, five books P-5/1-5, sherwani P-6, pajama P-7 through recovery memo Ex. PA. During the personal search of accused British passport P-7/A, PIA ticket P-8, purse P- 9, key P40, Pakistani currency P-11 (Rs. 1000), British currency (200 pounds) P-12, I.D. card P-13, he secured the same through recovery memo Ex. PB. From the search of hand bag P-14. sweater P45, T-shirt P-16, belt P47, audio cassettes P-18, 107, DVD P-19/1-3, Cigarette letters P-20/1-10, and secured- the same through recovery memo Ex-PC in presence of afore mentioned PWs. He was sent for trial.
3. The charge was framed under Section 9-C of CNSA 1997, against the appellant to which, he pleaded not guilty and claimed trial.
4. To bring home the guilt of the accused-appellant, the prosecution had examined as many as five PWs namely, Muhammad Sadiq Qureshi Custom Inspector PW-1, Syed Tanvir All Naqvi PW-2.
Asghar Ali Saleem Custom Inspector PW-3, Khalid Javed Custom Inspector PW-4 and Muhammad Ashraf SI/PW-5.
5. Ocular account of the incident was furnished by the complainant Muhammad Sadiq Qureshi PW-1, and he was supported by Syed Tanvir Hussain Naqi PW-2, the eye-witness of the occurrence.
6. Asghar Ali Saleem Custom Inspector/PW-3 after conducting, investigation of the case had found the appellant guilty and challaned him.
7. When examined under Section 342 Cr. P.C, the accused-appellant had refuted the prosecution case against him, alleging that he has falsely been involved in this case. The appellant opted not to appear under Section 340(2) Cr. P.0 as his own Witness. He however produced certain documents in his defence.
8. Learned counsel for the appellant contends that as per FIR, the offence was committed on 28.11.2004. According to the record, the date of the FIR is mentioned as 29-11-2004. In this regard, he has also referred the statement of Muhammad Sadiq Qureshi PW-1, wherein, he has stated that he has despatched the complaint Ex.PD on 28.11.2004 at 11.00 a.m. all the date on the recovery memos.
Ex.PA, PC.PD. as well as in the said FIR is mentioned as 29-11-2004 but he admitted that this note is not of his own hands; Learned counsel further argued that out of huge quantity of heroin of 2500 grams only 10 grams was separated for chemical analysis which is insufficient proof to establish that the recovered material was heroin or something else. He lastly argued that there are material discrepancies in the statements of the prosecution witnesses and the prosecution has failed to establish the case against the appellant beyond any shadow of doubt.
9. On the other hand, learned A.P.G has vehemently opposed the arguments of learned counsel for the appellant, contending that the appellant was checked and hauled up at the Air port and from his personal search and luggage, huge quantity of heroin was recovered from his possession and further no enmity or mala-fide on the part of custom authorities against the appellant has been established by the learned counsel for the appellant.
10. We have heard the learned counsel for the parties and perused the record.
11. As per prosecution story, the appellant was going to London on 28-11-2004 through PIA Flight No.PK 785 from Islamabad to London; a secret information was received by Collector Custom, who had constituted a raiding party which had intercepted the appellant and made search of his luggage on the said date. After completing the legal formalities, he sent the report Ex. PA for registration of the case, and on the same day, FM No.606 (Ex.PD/1) had been lodged. The recovery memos Ex. PA, PB and PC were prepared at the Custom house on the said date i.e. 28-11-2004. The date on all the exhibits/documents i.e. complaint, FIR and recovery memos prepared by PW-1 Inspector Custom, have been attested on the same date and those bear the signatures of attesting witnesses as well as the date which is 28.11.2004. After perusal of these documents, we find that while completing the file of the case against the reference of the case, the date has inadvertently been been mentioned by some police officials as 29-11-2004, it would not mean that the occurrence has taken place on 29-11-2004. So far as this contention of learned counsel for the appellant is concerned that on the heading of these documents, the date is mentioned as 29-11- 2004 while this factual position of the case cannot be ignored that in the FIR and bottom of the recovery memos under the signatures of the executants and the attesting witnesses the date is mentioned as 28.11.2004, therefore, this argument of learned counsel for the appellant being mis- conceived is repelled.
12. The other aspect of the case is that the appellant was going to London through PIA Flight No.PK 785, he was checked by the Custom staff on the said date at Airport and not only heroin was recovered from his suit case rather his PIA ticket for the said date, Purse, Key, Currency notes valuing Rs. 1000/- British currency valuing Rs. 200/- pounds, women cloths books, sherwani pajama etc, Ex.P1 to P30 have also been recovered from the possession of the appellant. Had the appellant not intended to travel on 28-11-2004 and not reached on the said date and if according to the learned counsel for the appellant these recoveries were effected on 29-11-2004 for what purpose the appellant was found and hauld up on the said date while there was no proof of his traveling to abroad on 29.11.2004.
13.The statement of Muhammad Sadiq Qureshi Custom Inspector-PW-1 that he intercepted the appellant and made personal search and luggage of the appellant, was also supported by attesting witness of recovery Syed Tanvir Hussain PW-2, who deposed in line with PW-1, l'W-5 Muhammad Ashraf SI also stated that he received complaint Ex. PD on 28.11.2004 and converted the same into FIR Ex. PD/1. He identified his signatures on the FIR.
14.Learned counsel for the appellant has not been able to point out any material contradiction except the date which was inadvertently written by one of the police employee against case FIR No. 606/2004 as 29-11-2004 instead of 28.11.2004. Further the Chemical Examiner report Ex. P.E is also in positive.
15.The recovery evidence supported by the Chemical Examiner Report is beyond doubt and confidence inspiring. Furthermore, the accused-appellant had not challenged the nature of recovered substance other than the sample separated for chemical analysis being not 'heroin' or 'narcotics' before the trial Court or this Court. Neither the parcel of narcotics material has been tampered with nor it was demanded by the appellant to open that parcel in the Court to substantiate that it was other than narcotics material. Moreover, no question was put to PWs at the trial stage by the appellant that remaining parcel of heroin produced in the Court was not of same nature. So much so, it has also not been prayed before the Court below that entire material be sent to the Chemical Examiner office for report as to challenge that it was not a narcotics substance. In this respect, reference can be made to case of Ali Muhammad vs. State (2002 SCMR 54).
16.The factum of arrest of the appellant had also not been denied. The PWs who are the Custom Employees have made consistent statements on material points and the appellant had miserably failed to point out any discrepancy in, their statements. Minor discrepancy with regard to the date pointed out by the appellant, 'is not sufficient to discard the statements of prosecution witnesses and the documents itself.
17.In his statement under Section 342 Cr.P.C. the appellant has admitted and claimed his British passport. Identity card, hand bag, sweeter, tea shirt, belt, Audio cassettes, Cigarettes letter etc. He also admitted his presence at the Airport while taking defence plea that at the counter during his personal search some altercation took place between him and Custom officials and stated that the alleged narcotics material was recovered from the possession of some one else.
18. The most important feature of the case is that the learned counsel for the appellant has not urged any rancour or animosity against the custom officials/PWs with the accused appellant who was not known to them earlier and in such like case no presumption can be drawn that the custom witnesses were lying. It is already settled law by the superior Courts that police witnesses are competent witnesses in the eyes of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate the accused, their testimony could not be discarded only because they happened to be employees of police/Custom department. Reference in this context, can be made to case of. Feroze Shah vs. State (2002 P.Crl. LJ 1470).
19. Pursuant to above discussion we find that prosecution has brought sufficient material on record to connect the appellant with the commission of the crime and consequential guilt. The defence has miserably failed to extract any material discrepancies or contradictions from the statements of PWs. The appellant did not appear as his own witness as required under Section 340(2) Cr.P.C. to contradict the prosecution story which is also fatal to him. Having considered. these circumstances and given our anxious consideration to all the aspects of the case we are unable to find any extenuating circumstances that can be urged in favour of the accused-appellant. Resultantly, this appeal fails and is dismissed accordingly.