1. JUDGMENT M.A. ZAFAR, J.- This judgment will dispose of Criminal Appeal No. 66 of 2004 filed by Sher Afser appellant, who was convicted and sentenced by Judge Special Court (CNS), Rawalpindi vide impugned judgment dated 31.1.2004 as under:- Under Section 9 of ) of CNSA. 1997.
2. Death and a fine of Rs. 200,000/- (two lac) or in default thereof to further undergo one year's R1.
2. Shah Nawaz Akhtar Inspector PW.5 on 27.1.2001 at 5.30 p.m. While present at Taxila Excise check post recorded complaint Ex.PA wherein he mentioned that on that day at 12.00 noon he alongwith Naseer Haider Zaidi, SI PW.6, Muhammad Nawaz constable PW-4, Muhammad Iqbal and Noor Muhammad constables were present opposite Excise Check Post Taxila when at 1.00 p.m. He received a message, from Regional Director Rawalpindi that he had received a spy information that on that day in a vehicle bearing registration No. AD-602 while concealing in secret cavities huge quantity of narcotics would be transported towards Punjab side. On receipt of this information he put the Naka Bandi and in the meanwhile Excise Inspector Manzer Khalid posted at Excise Check Post Taxila also reached there and he also joined with the raiding party. At 2.00 p.m.
3. Above-mentioned vehicle was seen coming to that spot from Peshawar side, which was stopped and found on the driving seat accused Sher Afser. On checking the vehicle on the driving side towards the rear wheel a secret cavity was found, which was opened and from it recovered 148 packets containing charas while 10 packets containing opium. On weighing the charas recovered it became 148 kilograms while opium as 9.600 kilograms. He further stated that he secured small quantity of charas from each packet total 10 kilograms of charas and made the same into sealed sample parcel while remaining charas was sealed in parcel Ex. P2. From the each packet of Opium small quantity total one kilogram opium was separated sealed into a sample parcel while remaining opium was sealed in parcel Ex. P3. All the parcels were sealed with the seals of SA. On personal secrtri of accused Sher Afser Rs. 3500/- Ex. P4/1-5, identity card Ex. P5, driving license Ex.
4. P6, and a chit of excise and taxation Ex. P7 were recovered, which were secured alongwith the above- mentioned parcels and car Ex. P.l vide recovery memo. Ex.PB and Ex.PC.
3. After completion' of the investigation, the challan was submitted against the accused in the Trial Court where after providing the copies as required u/s 265-C, Cr.P.C the accused was charged u/s 9(c) of CNSA 1997 on 29.8.2001 to which he pleaded not guilty.
4. The prosecution examined total six witnesses out of which PW1 Bashir Ahmad, Inspector recorded formal FIR Ex.PA/1, PW.2 Muhammad Ashraf H.C kept the parcels of charas and opium in Malt Khana, PW.3 Asad Mahmood constable deposited the said parcels in the office of Chemical Examiner, PW.4 Muhammad Nawaz constable one of the recovery witness of narcotics, PW-5 Shah Nawaz Akhtar Inspector reiterated his stand mentioned in complaint Ex.PA while PW.6 Naseer Haider Zaidi, SI investigated the case.
5. No one has entered appearance on behalf of the parties and we ourself have gone through the record. According to case of the prosecution, on receipt of spy information on 27.1.2001 vehicle No. AD/602 coming from Peshawar was stopped, Sher Afser was driving the vehicle and on checking the vehicle 148 Kilograms of charas and 9.600 kilograms of opium was recovered from the secret cavities. 10 kilograms, of charas and one kilogram of opium were sent for chemical analysis.
6. Prosecution in order to prove its case produced six witnesses in all. The learned District Attorney tendered in evidence report of Chemical Examiner Ex.PE. All the prosecution witnesses have fully supported the case of prosecution though they were put to the test of lengthy cross-examination but nothing in favour of the appellant could be brought on record rather the defence while cross- examining Inspector Shah Nawaz PW.5 itself brought on record that there was secret cavity in the vehicle. The sentence is reproduced:- "I cut a piece of 1 foot x 1 foot where from secret cavity was discovered however7 did not secure this piece through recovery memo The report of the Chemical Examiner establishes the material to be contraband charas and opium. .The accused in his statemented/s. 342, Cr.P.C, pleaded false implication and stated as under in reply to questions Nos. 2 & 4. (page 49 of the paper book).
7. "I was not arrested by the PWs as shown by the prosecution. I am driver of one Gulab Sher. On the alleged day of recovery I was asked by said Gulab Sher to accompany Haji Mangel to police station Attock Sadder where his vehicle was apprehended and I should get that vehicle and take the same to Lahore. I reached Attock Sadder Police Station along- with said Haji Mangel. I after reaching Police Station Haji Mangel told me that he did not bring his identity. Card from his house therefore, I should produce my identity card before police authorities for getting released the vehicle. We got the vehicle at 10.00 am. From that police station and when we reached from Fateh Jang about 12 kilometers towards Rawalpindi Haji Mangel asked me to stop the vehicle as he had to urinate. As soon as I stopped the vehicle excise officials reached there and they apprehended me as well as said Haji Mangel, blindfolded us and took to Margalla. Thereafter I do not know when and where Haji Mangel was released however in my presence nothing was recovered from vehicle.
8. Ex.PL Vehicle Ex. PI belongs to said Haji Mangel. Articles of Jamia Talashi however belongs to me. I can say on oath that I am innocent in this case.
9. 'The PWs arid the police actually released the actual culprit and I have been falsely involved in this case and in order to prove their false case PWs have deposed against me."
10. The defence set up by the appellant is after-thought and concocted one. This was never the first version of the appellant before the Investigator. Even no suggestion was made to the Investigator that the defence set up by the appellant in his statement u/s. 342, Cr.P.C, was bis first version, it has come on record that vehicle No. AD/602 was registered/transferred in the name of the appellant on the day when he was apprehended along with, huge quantity of narcotics.
11. Appellant also appeared as his own witness as required u/s. 340(2), Cr.P.C, and also produced two witnesses in defence, namely, Muhammad Nawaz. DW.1 Mehmood Ahmad FC DW.2 and himself appeared as DW.3. Two witnesses namely, Muhammad Riaz, Excise and Taxation Inspector and Pervaiz Akhtar were examined as Court witnesses CW.1 and CW.2. The defence witnesses supported the plea of the appellant whereas Court witness proved that on the day of occurrence vehicle in question was registered in the name of Sher Afser appellant.
12. All the prosecution witnesses are Government Officials/police officials and no private person was associated to be a witness of recovery but the law is now well-settled that the members of Police force are competent witnesses in the eyes of law and can be credited with veracity unless they are demonstrated to be false witnesses having maliciously accused an innocent person of the commission of an offence for ulterior motives. The witnesses had no enmity or ill-will to falsely depose against the appellants. Even no such suggestion was put to the PWs by the defence. The appellant was not even known to the witnesses. The appellant himself did not allege any enmity with the witnesses to let off the actual culprit and implicate him.
13. After going through the evidence brought on record we are of the considered opinion that the prosecution has proved its case against the appellant beyond any shadow of doubt.
14. The only question to be decided is whether it is a case of capital punishment or not. It is not the case of the prosecution that the appellant has any previous criminal record or is a previous convict. A Division Bench of this Court also in the Case of Rehmat Shah Afridi Versus The State (PLD 2004 Lahore 829), converted the sentence of death into imprisonment for life on the ground that the appellant was not a previous convict and narcotics substance was not heroin.
15. For what has- been stated above, we dismiss the appeal filed by the convict-appellant, maintain the conviction recorded against him by the learned Trial Court vide impugned judgment but reduce the sentence of death into Imprisonment for Life with the benefit of Section 382-B, CrP. C.
16. The sentence of fine is however maintained. The order confiscating the vehicle is also maintained.
17. The death sentence of the appellant is NOT confirmed and Capital Sentence Reference is replied in the NEGATIVE.