' TANVIR BASHIR ANSARI, J.--- Gul Afsar Khan appellant Muhammad Mohsin Ali Khan Khalid and Kamran Gul were tried under sections 9(c), 14, 15, C.N.S.A.
1997. Vide judgment, dated 28-9-2000, the Special Judge, C.N.S. Islamabad convicted and sentenced the appellant under section 9(c) to imprisonment for life with a fine of Rupees one million and in default to further undergo 2 years' R.I. And under section 15 of the Act, 1997 to undergo life imprisonment. Benefit under section 382-B, Cr.P.C. Was given to him. Co-accused Kamran Gul absconded during the trial. He was proceeded against under sections 87/88 and 512, Cr.P.C. Was declared a P.O. A perpetual warrant of arrest was issued against him. The third co-accused Muhammad Mohsan Ali Khan Khalid was, however, acquitted of the charge as it was found that the prosecution did not establish its case against him. Gul Afsar Khan appellant has preferred this appeal against his judgment of conviction and his sentence.
2. Briefly according to the prosecution upon receiving spy information by Col. Sana Ullah Raja Regional Director A.N.F. Rawalpindi Cantonment, a raiding party consisting of Javed Iqbal S.-I.
Complainant, Mehmood Ahmed Butt, Assistant Director . Shahzad Alamgir, Shah Nawaz Akhtar etc. Was constituted and at about 7-30 p.m. On 20-8-1997 the raiding party reached Shop No,8 Usman Plaza /I/10 Markaz Islamabad which was found locked. Upon information that shop was under the control of Muhammad Yousaf Khokhar P.W.4, the lock of the said shop was opened. Upon search 46 plastic sealed drums of Blue colour were found. The drums were opened and were found to contain Charas in the shape of litters which were packed in ploythene bags. Each drum contained 130 Kgs.
Of Charas. The total weight of Charas so recovered was 5980 Kgs. 500 grams of the substance was taken out from each drum for chemical analysis. Upon the report of the Chemical Examiner, the substance was found to be Charas. The prosecution during the course of investigation discovered that Charas in question was firstly brought to a store of Plot No,146-1/10, Islamabad about three months earlier and were shifted to Shop No,8 Usman Plaza only a few days prior to the raid. The Chowkidar of Plot No,146 stated that Kamran Gul, Gul Afsar and Muhammad Mohsin Khalid had obtained the store on rent on a monthly rental of Rs,4,000. It was also disclosed that the Charas was brought to the said store in an Oil Tanker from which the same was unloaded within a period of 5/6 days. All the three accused were formally charged on 22-4-1998. All the accused denied the charge and claimed trial. As earlier stated Kamran Gul co-accused absconded during the trial.
3. In order to prove its case the prosecution examined Shahzad Alamgir F.I.O. As P.W.1, Muhammad Sadiq/C, P.W.2, Muhammad Hayat/C P.W.3, Muhammad Yousaf Khokhar P.W.4, Iqbal Hussain Janjua P.W.5, Muhammad Azeem P.W.6, Mehmood Ahmed Butt, Assistant Director, A.N.F. P.W.7, Waseem Khan/C, P.W.8, Munir Ahmad S.-I. P.W.9, Riaz Pervaiz P.W.10 Alif Allah P.W.11, Muzaffar Hussain, A.S.-I.
P.W.12 and Javed Iqbal Inspector/Investigating Officer P. W .
13.
4. Besides this oral evidence, the prosecution also placed on the record memos. Of recovery Exh . P.
A . , Exh. P. B., Exh.P.0 . , Exh . P. D . , Exh. P E. , Exh. P. F. And Exh. P. G.
5. After the close of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C. The appellant denied that any narcotic substance was recovered from his possession. It was stated that the actual culprits had been let off and that Yousaf Khokhar P.W.4 has falsely implicated the appellant in order to save his own skin. The appellant, however, did not opt to appear as his own witness under section 340(2), Cr.P.C. Or to produce any defence evidence.
It may be important to note at this juncture that Muhammad Yousaf Khokhar was joined in the investigation but as no nexus was found between him and the offence, the said Muhammad Yousaf Khokhar was discharged by the police. In view of the evidence of the prosecution and the defence version of the appellant, the learned trial Court proceeded to convict and sentence him as hereinbefore stated. Kamran Gul was declared as a proclaimed offender while Muhammad Mohsin Khalid was acquitted of the charge.
6. Muhammad Saleheen Mughal, Advocate for appellant has assailed the impugned judgment on the ground that there was no cogent or concrete evidence produced by the prosecution thereby the appellant could be convicted. According to him the recovery of the narcotic substance was made in the absence of the appellant. The Charas in question was recovered from a shop which was under control of Muhammad Yousaf P.W.4 and that the conviction of the appellant on the basis of the testimony of the said Muhammad Yousaf was illegal. It is further submitted that the appellant had been convicted and sentenced both under sections 9(c) and section 15 of the C.N.S.A., 1997 and has been sentenced separately under each section to undergo life imprisonment on each count. This according to the learned counsel is unsustainable at law. It is finally submitted that even if the sentence of life imprisonment be granted on both these counts the learned trial Court has erred in not specifying as to whether the sentences shall run concurrently or consecutively.
7. On the other hand, the learned Special Prosecutor, A.N.F. Assisted by the learned State counsel submits that although Muhammad Yousaf Khokhar was arrested as an accused as the Shop No,8 in question was reported to be under his control and possession, however, upon investigation no case was found to be made out against the said Muhammad Yousaf Khokhar and he was discharged. He contended that in such circumstances the status of Muhammad Yousaf Khokhar cannot be that of an approver under section 337, Cr.P.C. And cannot be, judged as such. It is submitted on behalf of the respondent State that the evidence produced by the prosecution is cogent and consistent and that the learned trial Court has objectively appreciated the said evidence and came to the right conclusion.
8. We have heard the arguments of the parties and perused the record.
9. P.W.1 Shahzad Alamgir F.I.O. Was a Member of the raiding party. According to his testimony, he along with raiding party reached Shop No,8 Usman Plaza 1/10 Islamabad and in company of Muhammad Yousaf Khokhar opened the lock of the shop and found 46 plastic drums. Upon opening each drum was found to contain 130 Kgs. Of Charas weight of which came to 5980 Kgs.
500 grams from each of the drums was separated for the chemical examination. According to him in this manner 23 Kgs. Charas was sent for chemical examination. According to the report of the Chemical Examiner the same was reported positive for Charas. Muhammad Sadiq/C was another Member of the raiding party and appeared as P.W.2. He fully supported the statement of P.W.1.
Muhammad Yousaf Khokhar appeared as P.W.4. He is running the business under the name and style of Khokhar Enterprises as a Property Dealer. He stated that he had given the shop in question on rent to Muhammad Akram and identified Gul Afsar appellant to be the real tenant who described himself as Muhammad Akram initially. He confirms that the shop was opened by the raiding party and that the drums as detailed by P.W.1 and P.W.2 were found in the said shop. He further stated that drums were transported from Plot No,146 1/10.3 to the shop in question. This P.W.
Who was initially arrested was discharged on 26-8-1997. Iqbal Hussain P.W.5 and Muhammad Azeem P.W.6 deposed that Plot No,146 1/9, Islamabad was taken on lease by Gul Afsar appellant from one Muhammad Afzal Shah. He further stated that Total Cargo is owned by Kamran Gul accused and Gul Afsar appellant and Mohsin Ali Khalid were arrested from the office of Total Cargo, Islamabad by the police in his presence. Kamran Gul accused was also arrested who later absconded. The prosecution case was further supported the statements of Mehmood Assistant Director A.N.F. Who appeared as P.W.7. Waseem Khan/C P.W.8, Munir Ahmed S.-I. P.W .9. Riaz Pervaiz P.W.10, Alif Khan P.W.11 and Javed Iqbal Inspector/ Investigating Officer P.W.13. P.W. Muhammad Sadiq has made a categoric statement confirming the recovery of the narcotic substance from the shop in question. He was not cross-examined by the learned counsel for the appellant. P.W.4 whose statement has been challenged categorically stated that the person who obtained Shop No,8 on rent from him gave out his name as Muhammad Akram but was in fact Gul Afsar who was present in the Court. This statement has not been effectively cross-examined by the accused. We have minutely examined the evidence of the prosecution detailed hereinbefore and the learned counsel for the appellant has not been able to indicate any material discrepancy in the statements of the various prosecution witnesses. Even in the statement under section 342, Cr.P.C. The appellant has not denied that the huge stated quantity of Charas was recovered from the shop in question. We do not find force in the submission of the learned counsel for the appellant that the evidentiary value of P.W. Would be lacking as the said P.W.4 was merely an approver. We find from the record that although Yousaf Khokhar was arrested in the first place, he was discharged by the police and was no more an accused. As stated earlier charge was framed against the appellant and his co- accused Kamran Gul and Muhammad Mohsin Ali Khalid.
10. The appellant has not urged any ulterior motive against the police or the prosecution. We are also convinced that the cumulative effect of the evidence on the record is sufficient to pinpoint the appellant who through this evidence has been proved to have been directly concerned with the offence. The affidavit of the appellant has established beyond any shadow of doubt as the person who had obtained on rent both Plots in 1-9 and Shop No,8 in Usman Plaza.
11. After perusing the entire evidence on the record we find that the appreciation of evidence conducted by the trial Court does not suffer from any misappreciation of the same. We do not find ourselves persuaded to take a view different from the one expressed by the learned Special Judge.
12. There is no force in this appeal which is hereby dismissed. However, we find that the sentences passed by the learned trial Court must be construed to run concurrently and the learned trial Court had erred in omitting to specify the concurrent nature of the sentences. We are persuaded to supply, this omission made by the learned trial Court and the sentences awarded to the appellant shall be construed to the concurrent.