Abdul Hameed Dogar, CJ.--Through this judgment, we intent to dispose of Criminal Appeal Nos, 28 of 2004 and 625 of 2006 filed against judgment dated 24.12.2003 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeals No, 162 filed by appellant against his conviction and sentence and 1538 of 2001 against confiscation of his properties were dismissed.
The sentence of appellant was enhanced from 10 years to life imprisonment with increase of fine from Rs, 5 lacs to Rs, 10 lacs.
2. Briefly stated facts are that on 27.5.1997, case was registered on the complaint of Syed Rahat Ali Shah, Inspector, ANF Lahore stating that he received secret information that appellant Mehmood Hussain Harvi in consultation with the international smugglers had smuggled charas to Canada in 50 cartons in medicinal balls through M/s. Champ Sports, Sialkot to M/s. Sears Canada Inc. 3075 Thimens Village St.Laurent Montreal Qued, Canada through air way Bill No, 020-32484712 of Lufthansa Cargo Flight No, IH-902 which was checked at Dubai and on search out of the medicinal balls 400 kilograms Hashish was recovered. On this a raiding party comprising of complainant, Cap. Nooruddin, AD, Sahib Khan, SI and others headed by Lt. Col. Muhammad Younas, Joint Director ANF, Lahore was arranged and raid was conducted on Husnain Cargo Agogike Road, Sialkot from where Asif Javed was apprehended and on disclosure that hashish belong to Gul Zaman, who booked the consignment was also apprehended from Fine Sports Centre, Sialkot,
3. After completion of investigation respondents were sent upto face trial before learned Special Judge, Anti Narcotics, Lahore.
4. The prosecution in order to prove its case examined ten witnesses at the trial.
5. In his statement recorded under Section 342 Cr.P.C. appellant denied the case of prosecution and pleaded false implication. He neither opted to record his statement on Oath as required under Section 340(2) Cr.P.C. nor produced any thing in their defence.
6. On the conclusion of trial, the learned trial Court vide judgment dated 12.12.2000 convicted appellant under Section 15 of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act') and sentenced him to 10 years R.I. with fine of Rs, 500,000/- and in default thereof to further under go six months R.I.
7. Feeling aggrieved appellant filed Criminal Appeal No, 162 of 2001 before learned Lahore High Court, Lahore. During pendency of appeal learned trial Court vide order 03.8.2001 confiscated the assets of appellants in favour of Federal Government. This order was challenged by appellant through Criminal Appeal No, 1538 of 2001. Both the appeals were dismissed vide impugned judgment as stated above.
8. It is contended by Mr. S.M. Zafar, learned Sr.ASC appearing in Criminal Appeal NO. 28 of 2004 that learned High Court while enhancing the sentence of appellant has not appreciated the facts and circumstances of the case in minute particulars. According to him, the appellant has been involved in this case on mere presumption and no solid proof of his involvement in the case has been produced. He further contended that documentary evidence in the shape of audio and video cassettes could not be based for recording conviction against appellant. According to him, the learned High Court enhanced the sentence on the basis of an unproved photo copy of a fax communication (Ex.PN) purportedly transmitted by a travel agent who was not produced as witness to an ANF officer with design to show purchase of a ticket on alleged telephone request of the appellant in the name of a person not connected with the offence as charged. He contended that learned High Court has misconstrued the provisions of Section 30 of the Act as the said provision cannot be construed to make admissible in evidence photo-copy of document (Ex.PN) and that too without production of either the scribe/sender or the recipient thereof as a witness in the case. He further stated that even otherwise Ex.PN cannot be used as an evidence against the appellant as its admissibility was neither decided by the learned trial Court nor it was specifically put to the appellant as an incriminating piece of evidence as mandatory required under the law.
9. Mian Abdul Rauf, learned ASC appearing in Criminal Appeal No, 625 of 2006 contended that impugned judgment was passed in his absence as the appellant was not provided with a reasonable opportunity to submit his reply to the show-cause notice issued by the learned trial Court for confiscation/forfeiture of his assets pursuant to his conviction. According to him, notice was served upon appellant when he was undergoing sentence in jail and no efforts were made by the learned trial Court to procure his attendance before the Court. He further contended that it was incumbent upon the learned trial Court to record evidence before passing any order forfeiting the appellant's property. According to him, the fact has not been considered by the Court below which resulted in miscarriage of justice.
10. On the other hand, Mr. Niaz Ahmed Rathore, learned Special Prosecutor ANF controverted above contentions and supported impugned judgment. He contended that learned High Court after going through the material produced on record has rightly enhance the sentence of appellant. He contended that prosecution has proved its case against appellant without any shadow of doubt.
11. We have gone through the contentions raised at the bar and have also gone re-appraised the evidence in minute particulars. Appellant in this case has been involved on the spy information received by complainant and thereafter machinery of law was put in action. It is pertinent to mention here that learned trial Court convicted appellant under Section 15 of the Act and sentenced to ten years R.I. with fine of Rs, five lacs and the learned High Court has enhance the sentence to imprisonment for life and fine was also enhanced to Rs, ten lacs. The contentions raised by learned counsel for the appellant seems to be convincing as the learned High Court erred in enhancing the sentence of appellant. Especially Ex.PN has been totally misread by the Court below in its true perspective which is an unproved document and without producing either scribe/sender or the recipient of the same. Accordingly, Criminal Appeal No, 28 of 2004 is partly allowed, the impugned judgment of the learned High Court is set aside and that of the learned trial Court is restored.
10. So far as Criminal Appeal No, 625 of 2006, the order of confiscation was passed by the learned trial Court in absentia as at the relevant time appellant was in jail and no opportunity of hearing was provided to him to substantiate his ease. In view of above, Criminal Appeal is allowed and order dated 03.8.2001 passed by leaned trial Court is set aside.
11. These are the reasons of our short order of even date.
Sd/- Chief Justice Sd/- Judges I have appended a separate note.
Ch. Ejaz Yousaf, J.--I have the advantage of going through the judgment authored by the Hon'ble Chief Justice of Pakistan Mr. Justice Abdul Hameed Dogar, proposed to be delivered in the instant case and concurred by my learned brother Mr. Justice Ijaz-ul-Hassan, J.
It would be pertinent to mention here that in the instant case the appellant was convicted by the Special Judge, Anti-Narcotics, Lahore, and sentenced to undergo ten years R.I. along with a fine of Rs, 5,00,000/- or in default to further undergo six months R.I. On appeal, though the conviction recorded against the appellant was maintained by the High Court, yet, his sentence of imprisonment was enhanced from ten years R.I. to that of life imprisonment. The amount of fine was also increased from Rs, 5 lac to Rs, 10 lac. The instant appeal was filed by the appellant through his counsel whose wakalatnama, as pointed out by the office, is available on record, yet, record is silent as to whether the appellant in pursuance of judgment of the High Court had ever surrendered or was taken into custody. Hence maintainability of appeal, in my view, is under jeopardy in view of the law laid down by this Court in the cases reported as (i) Karam Ellahi v. The State (PLD 2007 SC 260) and (h) Chan Shah v. The Crown (PLD 1956 FC 43).
I would further life to add that allegation/charge against appellant Muhammad Hussain Harvi, at the trial, precisely was that he had on telephone directed M/s. Shakeel Air Express, Karachi, to issue a ticket to one of the accused persons, namely, Haji Said Alam Malik, who was allegedly involved in transporting the contraband material. Although copy of Ex.P.N., the memo. prepared in pursuance of the direction allegedly made by the appellant to the Traveling Agency, was produced at the trial yet, neither original thereof was tendered in evidence, nor compared with Ex.P.N, nor author thereof was examined so as to prove the same, therefore, presumption could not have been drawn that the document in question was genuine. Having been questioned that notwithstanding the above discrepancy, if the document in question is presumed to be true even then as to what offence on the basis thereof is made out, the learned Special Prosecutor candidly conceded that case of the appellant was covered by Section 15 of the Control of Narcotic Substances Act, 1997, as only allegation of aiding, abetting and facilitating the co-accused persons was attributed to him. In such view of the matter, it was held that case of the appellant was covered by Section 15 of the C.N.S. Act, instead of Section 13 and therefore, the judgment of the trial Court was restored.