1. ' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Attiq-urRehman son of Haji Kashkol Khan, caste Afridi Pathan, resident of Hawaldari Chowk, Tedi Bazar, Landi Kotal Road, Jamrud Khyber Agency, appellant along with Bahadur Khan, was involved in case F.I.R. No,48, dated 22-12-2002, offence under sections 9(c) read with section 15 of the Control of Narcotic Substances Act, 1997, registered at Police Station Anti-Narcotic Force, Lahore, and was tried by learned Judge Special Court, CNS, Lahore, who vide judgment dated 29-6-2004, convicted the appellant under section 9(c) of the Act and Sentenced him to death with direction to pay Rs,5,00,000 as fine and in case of nonpayment whereof, to further undergo one year S.I.
2. 2.Feeling aggrieved by the judgment of the learned trial Court, the appellant impugned the same through filing Criminal Appeal No, 690 of 2005, whereas, the learned trial Court forwarded Capital Sentence Reference No,3-N of 2005 for confirmation of the death sentence inflicted upon the appellant, in terms of section 374, Cr.P.C.
3. 3.As both the matters are arising out of the same F.I.R., therefore, we intend to dispose of the same through single judgment.
4. 4.The prosecution story as alleged in the F.I.R. (Exh.PA) recorded on the written complaint (Exh.PA/1) of Muhammad Saeed Dhillon, Assistant Director, ANF, Lahore (P.W.4) is that on 22-12-2002, the high ups of the Anti-Narcotic Force received an information through special Investigation Cell that Attiq-ur-Rehman and Bahadar Khan, both Pathan by caste have been running narcotics business jointly and they would transport in the secret chambers of vehicle Hiace No,RPT-2482, heavy quantity of narcotics along with pilot vehicle Pajero No,B-2246, from Peshawar to Multan and they would ensurate at afternoon, from Texali Chowk Lahore to Multan. A raiding party under the supervision of Maj. Shamshad Dar Deputy Director, was constituted, which besides other members of ANF including Rao Zahid Mahmood, Inspector (P.W.3) and Muhammad Saeed Dhillon, the then Assistant Director ANF (P.W.4). The raiding party along with the informer, Yasar Kaleem, Inspector and Dilawar Khan, SIE, reached at Texali Chowk on official vehicles. They were in the process of Nakabandi when in the meanwhile at 1-15 p.m. the aforementioned vehicles reached in Texali Chowk proceeding towards Yadgar Chowk. They were signaled to stop on the pointing out of informer but the drivers of both vehicles sped-up the vehicles. Having chased then on official vehicles both the vehicles were forced to stop near Yadgar Chowk. The person, who was occupying the driving seat of Hiace Van, was overpowered by the members of raiding party, but the person occupying the Pajero, taking advantage of rush at Yadgar Chowk, took to his heals, leaving behind the vehicle. The person apprehended from Hiace, disclosed his name as Attiq-ur-Rehman and disclosed the name of his co-accused Bahadar Khan. Having conducted the search of Hiace Van No,RPT-2482, from the secret cavities of the floor of the vehicle, 176 packets of charas and 24 packets of opium were recovered out of which each packet of charas and each packet of opium weighed 1-Kg. In total 176 Kgs. of charas and 24 Kgs. of opium were recovered. Having separated 1 gram from each packet of charas and 1 grim from each packet of. opium for chemical analysis and placing 40 packets each of remaining charas into 4 toras and 16 packets of charas in another tora and 24 packets of opium in one tora in total, 8 sealed parcels were prepared and impressed with the seal of ANF and secured along with Hiace Van RPT-2482 vide recovery memo Exh.PB.
5. Having conducted the search of Pajero, two packets of charas and one packet of opium were recovered lying underneath the driving seat. The packets of charas weighed 2-KGs and packet of opium weighed 1-KG. Having separated 10 grams of each packet of charas, 10-grams of each packet of opium for chemical analysis, 4 sealed parcels were prepared of the sample and remaining charas and opium were sealed with the seal of ANF and secured along with Pajero No, B-2246 Peshawar vide recovery memo. Exh. PC.
6. 5.Complaint in this regard was prepared by Muhammad Saeed Dhillon, Ex-Assistant Director A.N.F., which was sent to Police Station through Muhammad Bakhsh, constable for registration of formal F.I.R. The investigation was conducted by Muhammad Saeed Dhillon, Ex-Assistant Director, A.N.F.
7. P.W.4, who prepared site plan of the place of recovery Exh.PF. The Investigating Officer handed over the parcels of charas, opium and vehicles to Muhammad Yasin, H/C Moharar for safe custody in the Malkhana. On 24-12-2002, he sent the parcels of samples through Abdul Ghafoor, constable to the office of Chemical Examiner, Lahore. The Investigating Officer recorded the statements of the prosecution witnesses under section 161, Cr.P.C.
8. 6.Having found the appellant and his co-accused guilty, the Investigating Officer after preparing report under section 173, Cr.P.C, sent the challan to the court of competent jurisdiction.
9. 7.The appellant was charge sheeted by the learned trial Court on 12-5-2003 under section 9(c) read with section 15 of Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. Prosecution in order to prove its case produced as many as 4 witnesses.
10. Occular/recovery account in this case has been furnished through Zahid Mahmood Inspector (P.W.3) and Muhammad Saeed Dhillon, Ex-Assistant Director, ANF (P.W.4). The investigation of this case was conducted by Muhammad Saeed Dhillon Ex-Assistant Director ANF (P.W.4). Muhammad Yaseen Head Constable, (P.W.1) had drafted F.I.R. (Exh. PA) on the basis of complaint (Exh. PA/1).
11. 8.On 14-1-2004, Kashif Javed learned SPP, ANF, gave up Muhammad Afzal Asim, Inspector, P.W., being unnecessary.
12. 9.The appellant was also examined under section 342, Cr.P.C; wherein he opted to lead defence evidence, however, he did not opt to appear as his own witness as provided under section 340(2), Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence. To a question why this case is against him and why the PWs deposed against him, Attiq-ur-Rehman, appellant made the following deposition:-- "I am an educated person. I have done B.Sc., B.Ed. as well as I studied B.Sc., Engineering up to 3rd year. I belong to business. I am member of Chamber of Commerce Peshawar and also have the certificate of Import and Export. I tender, photocopy of membership certificate issued by Sarhad Chamber of Commerce and Industries, Peshawar, in the name of M.S. China Trading Co., Exh. DA, photocopy of certificate of Board of Intermediate and Secondary Education for qualifying Intermediate Examination, Exh.DB, Certificate for Secondary School Certificate Examination, Exh.DC and Degree of University of Peshawar of Bachelor of Science, photo copy, Exh.DD (Original compared and returned). Photo copy of Provisional Certificate of Bachelor of Education, University of Peshawar, Exh.DE (attested copy compared and returned). I then started import of Power Tools from China. Sometimes, I imported the tools under Afghan Trade Policy and some times from Sost Border. I was also dealing in electronic business. I proceeded from Peshawar on 21-12-2002. I dealt in Rawalpindi in electronics. On 22-12-2002, I proceeded from Rawalpindi for Lahore. Out of Lahore some persons were present for checking. I was driving a Nero jeep which I had taken on rent. I had taken on rent the said vehicle on 15-12-2002 for 15 days. I was having with me in the vehicle some Power Tools. We had exchanged hot words. The aforementioned persons made me to stand on the road side and said that the vehicle which was being driven by me was also a number two vehicle. I showed to them registration of the vehicle and showed to them the authority letter of rent-a-car.
13. They did not care to listen to me and after blind folding my eyes I was made to sit in a vehicle. I tender the authority letter of Rent-a-Car, Exh. DF. I was given. the fist blow in the vehicle and was taken to their office by the persons. In the office I was made to stand along the wall with my hands up and my personal search was taken over there. At that time I was blind folded. .I was taken inside cell. My blinds were removed. I was then called upstairs for investigation. I was told that I was carrying chars. I was then again taken to the cell. After 1/2 hours, I was again summoned for investigation. My address was got written. I was then told that I was involved in charas matter."
14. ' In defence evidence, statements of Dost Muhammad (D.W.1) and Rana Muhammad Afzal Khan (D.W.2) were recorded.
15. 10.After hearing the arguments advanced by learned counsel appearing on behalf of both sides, the learned trial Court while evaluating the evidence available on the record, found the case of the prosecution correct beyond any shadow of doubt, which resulted into conviction of the appellant as stated above.
16. 11.At the very outset, learned counsel for the appellant argued that all the prosecution witnesses are government functionaries. It was also argued that the evidence of the prosecution witnesses of the recovery account is not trustworthy as they are inconsistent about the weighment, spot and recovery of narcotic substance. Learned counsel vehemently contended that the samples were consolidated and the same were sent in that shape, therefore, the same cannot be used against the whole recovered contraband. Learned counsel stated that charas or opium is not lethal as heroine. Learned counsel while relying upon case law reported in Rehmat Shah Afridi v. The State (PLD 2004 Lahore 829) and Muhammad Tariq v. The State' (2009 5CMR 1220) argued that in similar situation, this Court had converted death sentence into imprisonment for life, therefore, keeping in view the dictum laid down in aforesaid reported cases, the appellant being first offender, the extreme penalty of death is not called for.
17. 12.On the other, learned Deputy Prosecutor-General stated that the appellant was arrested red handed having huge quantity of contraband charas and opium, which is not denied. Moreover, the recovery of narcotic substance fully connects him with the commission of crime alleged. It was also contended that the witnesses of the occular account are government officials and it cannot be said that they had any ill will against the appellant. In the given circumstances, it was the argument of the learned Law Officer that appellant is not entitled to any exception and the learned trial Court has rightly given dose to the appellant, which is in proportionate to the act committed by him.
18. 13.We have heard the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor-General and perused the record.
19. 14.We have gone through the prosecution evidence which is consistent, unbiased and confidence inspiring and has come from a source, which is independent squarely even the appellant has not alleged any animosity against the prosecution witnesses. All the prosecution witnesses remained consistent on the salient features of the prosecution version. Although they were subjected to lengthy cross-examination, however, the defence could not fetch anything in his favour. The report of Chemical Examiner is positive, which prima facie connects him with the commission of offeneP.
20. The argument of learned counsel for the appellant that all the prosecution witnesses are government functionaries, it is nowhere mentioned that statements of police officials cannot he taken into consideration and those are to be discarded straightway without any rhyme or reason.
21. Moreover, the prosecution witnesses had no against the appellant. Needless to mention that statement of police official is as good as the statement of public witnesses, if that is confidence inspiring. All these factors dipict that prosecution has ably established its case against the appellants. The defence version, on the other hand, as adduced by the appellant in his statement recorded under section 342, Cr.P.C. and in the shape of testimony of D. W.1 and D.W.2 is not confidence inspiring.
22. 15.So far as contention of learned counsel for the appellant that the samples were consolidated is concerned, we may observe here that admittedly out of 176 Kgs. Charas and 24 Kgs. of opium recovered from the Hiace, 176 grams charas (one gram- each from the packet) and 24-grams opium (1 gram each from every packet), was separated. Similarly, the contraband recovered from Pajero out of 2-Kgs. charas and opium 1-Kg., 20 grams of charas and 10-grams of opium was separated, however, they were consolidated into one parcel each and sent to the office of Chemical Examiner for analysis. In a similar situation in the case of Muhammad Hashim v. The State (PLD 2004 SC 856) the august Supreme Court of Pakistan held as under:-- ' "Record and recovery memo. showed that 4 grams of Charas was taken as sample out of total of 288 rods and nothing was available on record to show whether, the sample for examination by the chemical Examiner was taken out from each rod to ascertain that 288 rods were that of Charas or some other commodity, having resemblance with the colour of Charas like oil cake (Khal) etc.--- Stringent sentence having been provided under the Control of Narcotic Substances Act, 1997, if offences charged against the accused within any component of S.9 were proved, therefore, said Act had to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, were to be followed strictly in the interest of justice..."
16. As far as quantum of sentence is concerned, following principle was held in the reported judgment Rehmat Shah Afridi v. The State (PLD 2004 Lahore 829):-- "---Sentence---Section 9 of the Narcotic Substances Act, 1997, although does not create any distinction between various kinds of narcotic substances and prescribes only a minimum sentence in case the same exceeds ten kilograms, yet the Court has to consider cases in which sentence of death or the sentence of imprisonment for life should be awarded."
23. ' The same was affirmed by the august Supreme Court of Pakistan in the case of Muhammad Tariq v. The State (2009 SCMR 1220). It would be advantageous to reproduce the relevant portion of the same, which reads as under:-- "In our view, the imposition of punishment has been left upon the discretion of the Court, considering the facts and circumstances of each given case, there may be cases of different types of accused, who may be involved in the commission of the offence of section 9(c) of the Act, but their role, part, act or omission, character or conduct is such as to call for lesser punishment than of death. The case of first offender, who is not a drug baron can fall in this domain. An accused having no antecedents of any criminal case to his score, he being not an incorrigible, desperate, or hardened criminal, the punishment lesser to the death in such case can serve the purpose of dispensation of criminal justice. In such cases, the extreme penalty of death can be avoided to be handed down to the accused, to grant hi' a chance to mend his ways in his future life."
24. ' As far as recovery of charas and opium is concerned, although it is contraband charas and opium but it is not lethal as heroin especially when it is admitted that the appellant is the first offender and there is no previous record of similar nature at his credit. Therefore, in such like cases, where the contraband recovered is charas or opium, which is of lesser gravity and magnitude as compared to the other substances such as heroin, in such like cases it would be appropriate to meet the ends of justice while taking into consideration the dictum of safe administration of criminal justice, the infliction of sentence of imprisonment for life would be suffice to meet the dictates of justice.
17. In sequel to above discussion, Criminal Appeal No,690 of 2005 filed by the appellant is dismissed while modifying the sentence of death into imprisonment for life. Benefit of section 382-B, Cr.P.C. is extended to the appellant. The burden of fine as ordained by the learned trial Court shall remain intact. Capital Sentence Reference No, 3-N of 2005 fails, which is answered in Negative. Death sentence inflicted upon Attiq-ur-Rehman appellant is not confirmed.