JUDGMENT SAGHEER AHMED QADRI, J.--Asif Ali, convict-appellant along with two others was tried by the learned Judge, Special Court, Control of Narcotic Substances, Rawalpindi in case F.I.R. No.1 registered at Police Station ANF-1, Rawalpindi on 28-1-2008 under section 9(c) read with sections 14/15 of the Control of Narcotic Substances Act, 1997 on the report of Taimur Khan Mahsud, Inspector/ complainant (P.W.2).
2. The F.I.R (Exh.PD/1) was recorded on the basis of complaint (Exh.PD) lodged by P.W.2 Taimur Khan Mahsud, Inspector/complainant whereby it was mentioned that on 28-1-2008 a secret informer came to him at 1-00 p.m. And disclosed that one Asif along with his companions is coming to Islamabad Airport on his vehicle bearing Registration No.BC-3603 with huge quantity of narcotics to smuggle the same out of country. On this information a raiding party consisting of the complainant, Abbas Ali A.S.-I., Arshad Mahmood, Abdul Waqar, Aftab Ahmed, Irshad Waseem, Jahan Kamal and Saif Ullah, Constables proceeded to the Islamabad International Airport on official vehicles under the supervision of Abid Zulifqar A.D. Incharge Police Station ANF No.1, Rawalpindi. Having found the vehicle above mentioned parked in the drop lane area of the Airport the raiding party apprehended two persons with a black polythene bags who subsequently disclosed their names as Asif Ali (the present appellant) and Maroof Gul son of Muhammad Gul.
The polythene bag which was in the lap of Asif Ali, appellant when checked it contained 3 packets of Heroin each weighing one kilogram out of which small quantity from each packet was separated for chemical analysis which was subsequently sent to the office of Chemical Examiner for report. On further search the raiding party also got recovered one more packet of 50 grams Herein wrapped in polythene bag out of which one gram was separate for analysis. Besides this they also recovered some other articles like registration book of vehicle No.BC-3603, mobile phones, passport, air tickets, etc. On this report the instant case was registered.
3. The appellant was produced before the learned. Judge, Special Court (CNS), Rawalpindi who charged-sheeted the accused on 25-6-2008 under section 9(c) read with sections 14/15 of the Control of Narcotic Substances Act, 1997 to which the accused pleaded not guilty and claimed trial.
4. During trial, the prosecution produced as many as five witnesses, Faqir Muhammad, Constable appeared as P. W.1 and proved safe transmission of four sample parcels each containing one gram heroin for onward transmission to the office of Chemical Examiner, Rawalpindi. Tamur Khan Mashud A.D. Appeared as PW-2. He is the complainant as well as the Investigating Officer of the case. He prepared the necessary police papers including recording of the statements of P. Ws. And on receipt of positive report of Chemical Examiner submitted challan in Court. P.W.3 Abdul Waqar, Constable supported the version of the complainant as set out in the F.I.R. (Exh.PD/1). He also proved recovery memos Exh.PB and Exh.PC P.W.4 Muhammad Munir Abid, S.-I. Recorded F.I.R.
(Exh.PD/1). P.W.5 Jawad Altaf, S.-I. Proved safe custody of four sample parcels and then on 30-1- 2008 its transmission to the office of Chemical Examiner through Faqir Muhammad, Constable. On 11-9-2009 the learned SPP gave up Saif Ullah, Constable being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PG) closed the prosecution case.
5. After closure of the prosecution evidence the learned trial Court examined the appellant on 4-11- 2009 under section 342 Cr.P.C. Wherein he simply denied the allegations levelled against him. In defence he produced DW-1 Iftikhar ul Hassan Naqvi, Law Officer, ASF, BB International Airport, Islamabad who instead of favouring the appellant deposed against him. The appellant also relied on documentary evidence in the shape of Exh.DB and Exh,DC.
6. The learned . Trial Court after conclusion of trial vide judgment dated 27-3-2010 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to five years' R.I. With fine of Rs.5,00,000 and in default of payment of fine to undergo further simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant.
7. Feeling aggrieved by that judgment the appellant has challenged his conviction and sentence through this criminal appeal.
8. Learned counsel for the appellants argued that the appellant is innocent, he has been falsely involved in this case. Learned counsel for the appellant referred the statement of the appellant recorded under section 342., Cr.P.C. Whereby he specifically denied his arrest from the alleged place of recovery shown by the prosecution; that there is no such entry in the Events Register being maintained at the Airport by ASF to prove that the appellant was taken into custody from airport premises; that in violation of the provisions of section 103, Cr.P.C. The alleged recovery was effected as no recovery witness from any of the agency present at the Airport particularly the officials of ASF were joined with the recovery process although it was shown that recovery was effected from appellant's possession at Islamabad International Airport; that the prosecution evidence brought on record was discrepant, self-contradictory and unreliable who all belong to Anti-Narcotic Force; that there was ample evidence available on record to the fact that the appellant's presence was not shown in the Events Register being maintained by ASF at the Airport in which no such incident like recovery of heroin from appellant's possession was registered and that the prosecution was not able to prove the charge against the appellant and the learned trial Court although there was no sufficient evidence convicted him without any lawful justification. Prayed that this appeal be accepted while setting aside the impugned judgment of the learned trial Court and acquit the appellant.
9. On the other hand learned Special Prosecutor for ANF has vehemently opposed this appeal on the grounds that huge quantity of Heroin has been recovered from the possession of the appellant which cannot be termed as fake recovery; that the recovery was proved through the statements of P.W.2 Taimur Khan Mahsud A.D. Inspector/ complainant and P.W.3 Abdul Waqar, Constable; that the report of the Chemical Examiner is positive; that no defence evidence was led to falsify the prosecution story, therefore, the prosecution was able to prove the charge under section 9(c) of the Control of Narcotic Substances Act, 1997, therefore, he was rightly convicted. Prayed that this appeal be dismissed.
10. We have heard the learned counsel for the parties and perused the record.
11. It is already mentioned above that according to P.W.2 Taimur Khan Mahsud, Inspector/complainant on spy information he along with other members of the raiding party including P.W.3 Abdul Waqar, Constable raided at Islamabad International Airport where on a drop lane on spy information they found the appellant Asif Ali son of Sher Muhammad present on the driving seat of the vehicle bearing Registration No.BC-3603 Mitsubishi Inter Cooler along with Maruf Gul son of Muhammad Gul (co-accused/convict on the basis of confessional statement) were found, present. The appellant Muhammad Asif was in his possession/lap a black coloured shopping bag containing heroin weighing 1 K.G. Each in three packets out of which one gram heroin was separated as sample and remaining heroin was secured vide memo Exh.PB. Both the accused were apprehended.
12. In order to prove the charge against the appellant prosecution has examined total five witnesses out of which Faqir Muhammad P.W.1 as already mentioned took four sample parcels of heroin weighing one gram each for onward transmission to the office of Chemical Examiner, Rawalpindi which he deposited intact. P.W.2 Taimur Khan Mahsud, Inspector/complainant as well as the Investigating Officer of this case has reiterated his stand mentioned in the F.I.R. Exh.PD/1. He was cross-examined by the learned defence counsel in respect of the ownership of the vehicle to which he replied that although he sent a request to the relevant Motor Registration Authority but no information was provided. He was further cross-examined by the defence counsel that to explain the reason why the accused persons were keeping the heroin in their lapses instead of keeping the same some where inside the vehicle. This fact he replied that it was for the accused themselves to explain. The defence version put forward by the accused-appellant was that he was not arrested from the alleged place of recovery i.e. Drop lane of Islamabad International Airport rather he was apprehended from Karachi Company, Islamabad. In order to prove this version the learned defence counsel has referred the document Exh.DA/1 which is a photostat copy of extract of Events Register maintained inside the Airport by ASF. In support of his plea the appellant got examined DW-1 Iftikhar ul Hassan Naqvi, Law Officer, ASF who however, denied authenticity of the photostat copy (Exh.DA/I). This witness was declared hostile who in his cross-examination submitted that although an Events Register maintained by ASF but that only relates to the recording of events/matters of the airport. During cross-examination he refused the suggestion that he is intentionally denied the correctness of the document Exh.DA/1 produced by the learned defence counsel in the trial Court on behalf of the appellant.
13. The main stay of learned counsel for the appellant was that as no such event was recorded in the Events Register by ASF, therefore, the appellant was not arrested at the spot and the story put forward by the prosecution was just fake and fabricated. No other major discrepancy was pointed out by the learned counsel for the appellant during whole of his arguments. As far as plea raised by the appellant that he was not arrested from the Airport is concerned rather he was arrested from Karachi Company, Islamabad, the learned trial Court has thoroughly discussed this aspect of the case in the impugned judgment. Further, the co-accused of the appellant namely, Maroof Gul who confessed his guilt before the trial Court on 11-8-2008 deposed as under:- "I hereby confess that on 28-1-2008 at about 13-30 hours I along with co-accused was apprehended by ANF officials from drop lane of Islamabad Airport when we were sitting in Mitsubishi Intercooler vehicle No.BC-3603 silver colour and recovered one packet containing one kilogram of heroin from the shopping bag in my possession."
Thus the confessional statement of Maroof Gul further connects the appellant Asif Ali with the recovery of heroin that has been alleged against him which left no doubt that the appellant was arrested from the Airport as alleged by the prosecution. By mere denial and raising of plea is not sufficient to disprove the evidence brought on record by the prosecution as mentioned above.
14. The other objection raised by learned counsel for the appellant was that although allegedly recovery of heroin took place inside Islamabad International Airport but no witness of the recovery other than ANF officials was cited or produced by the prosecution. It is clarified that by virtue of section 25 of the Control of Narcotic Substances Act, 1997 the provision of section 103, Cr.P.C. And is applicability to cases of instant nature has been excluded. Firstly, the alleged recovery is shown from drop lane of Islamabad International Airport and secondly in view of section 25 Control of Narcotics Substances Act, 1997 it is not necessary for the prosecution to associate any private witness in the recovery process. Reference in this context can be seen by a judgment passed by the Hon'ble Supreme Court of Pakistan in Fida Jan v. The State (2001 SCM R 36).
15. Resultantly, this appeal, being devoid of any merits, is hereby dismissed.