JUDGMENT CH. MUIHAMMAD TARIQ, J.-- Through this single judgment, we intend to dispose of Criminal Appeal No.255 of 2007, Criminal Appeal No.246 of 2007 filed by the appellants-convicts Ghalib Hussain and Javed Iqbal against their conviction and sentence under section 9(c), Control of Narcotics Substances Act, 1997, awarded by learned. Judge Special Court (C.N.S.), Rawalpindi vide judgment dated 27-7-2007 as under:--
(1) GHALIB HUSSAIN Death with fine of Rs.10 lacs and in case of failure in payment of tine, to further undergo 6 months' S.I.
(2) JAVED IQBAL Life Imprisonment with fine of Rs.10 lacs and in case of default of payment of fine, to further undergo 6 months' S.1.
2. Capital Sentence Reference No.5/ RWP/2009 sent by learned trial Court for confirmation or otherwise of death sentence Of Ghalib Hussain convict shall also be answered through this judgment.
3. The prosecution story as contained in case F.I.R. 24, dated 27-6-2004 is that on spy information that huge quantity of narcotics would be supplied from Manser Camp Attock to Hussain Abdal, naka bandi was made. At about 7-00 a.m., Suzuki Pick-up No.3919 came from Peshawar side. The officials in uniform gave them signal to stop but the driver tried to run away with the vehicle, however, he was made to stop forcibly with the help of official vehicles. Javed Iqbal was sitting on driving seat while Ghalib Hussain was on front seat. On query, they admitted presence of charas, opium and heroin in the vehicle. Ghalib Hussain handed over bags containing heroin charas, charas gardah and opium. On weighing, heroin, charas, charas gardah and opium were found as 1600 grams, 37.200 Kg, 6.600 Kg and 10 Kg respectively. The recovered heroin was in two packets each containing 800 grams, the, charas consisted 31 packets in shape of litters, the charas gardah comprised of 6 packets packed in polythene envelopes while 8 packets of opium in shape of tablets were recovered. Small quantity of heroin was separated from both packets total weighing one gram as sample for analysis. Out of recovered charas litters, charas from each packets weighing 10 grams was separated as sample for analysis. Some charas gardah was also separated from each packet total weighing 10 grams as sample for analysis. Some opium from each packet weighing 10 grams as sample was also separated. From the dash board, Registration Book of the vehicle was recovered. Samples as well as remaining, bulk of narcotics were secured through 18 sealed parcels. On physical search of the aforesaid persons, cash and other articles were also recovered.
4. During interrogation, both the said persons voluntarily disclosed that the recovered narcotics belonged to one Malik Maalik son of Malik Qadoos (since P.O.) and as per his direction, the narcotics were to be supplied to a specific customer at Hassan Abdal. However, Malik Maalik, became fugitive from law.
5. After completion of investigations, the challan was submitted in the trial Court by showing Malik Maalik as absconder under section 173, Cr.P.C. The appellants Ghalib Hussain and Javed Iqbal were charged under section 9(c) read with section 14/15 of C.N.S. Act, 1997 to which the appellants pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as six witnesses.
6. P.W.4 Amjad Ali P.W.5 Taimur Khan. Mahsud Inspector and P.W.6 Syed Naseer Haider Zaid S.-I. Are recovery witnesses who reiterated the contents of F.I.R. During the trial. P.W.6 is also I.O. Of this case who proved the investigation of this case. -P.W.1 to P.W.3 are formal witnesses and need not to be discussed here.
7. When examined under section 342, Cr.P.C. Javed Iqbal accused denied the allegation that contrabands were recovered from him. According to him, he was apprehended by ANF on 26-6- 2004, one day before registration of the present F.I.R. And Registration Book was also taken over by the police from him on the same day. He also deposed that in fact the complainant in the case namely Taimur Khan Mahsud Inspector wanted to book my Suzuki vehicle on 26-6-2004 and when I demanded fare, the said Taimur Khan Mahsud annoyed and due to altercation, Taimur Khan Mahsud with the help of other subordinate police officials apprehended him. The alleged recovery was made from Malik Maalik who was let free by the police and involve him (Javed Iqbal) whereas he has no concern With the alleged offence. Javed Iqbal also claimed that his past is very clean and he was never involved in such-like cases.
8. When examined under section 342, Cr.P.C. Ghalib Hussain accused denied the allegations levelled against him and deposed as under:- "I am innocent. In fact the owner of the alleged recovery was one Malik Maalik who is notorious in drug who was let free by the police and I have been falsely involved in the instant case."
9. Both the accused did not opt to appear as their on witnesses on oath as required under section 340(2), Cr.P.C.
10. Javed Iqbal examined DW-1 Tariq kizwan, DW-2 Iftikhar Hussain and also produced letter dated 23-10-2004 Exh. DA along with alleged copy of his application and closed his defence evidence.
Ghalib Hussain did not produce any evidence in his defence.
11. After culmination of the trial, learned Judge Special Court (CNS), Rawalpindi convicted and sentenced the appellants Ghalib Hussain and Javed Iqbal as mentioned above. Hence these criminal appeals.
12. Learned counsel for the appellant-convict Ghalib Hussain inter alia contends the appellant was roped in the case mala fide of the police. In fact, the alleged narcotics was the property of one Malik Maalik accused/P.O. Who is a notorious drug dealer but the police has joined hands with the said Malik Maalik and let him free and involved the appellant who had no nexus with the contrabands recovered by the police. There is no past criminal record of the appellant. Further contends that despite the fact that the appellant informed the high-ups about the occurrence but no one had even associated the said Malik Maalik nor he was investigated by the high-ups.
Learned counsel has emphasized more that it is a case of substitution. The real culprit was allowed by the police to flee away and the appellant was apprehended in his place. The appellant is an innocent person, he has not committed any offence. Further argues that only 1 gram of narcotics was sent to Chemical Examiner which brings the case of the petitioner under section 9-A Control of Narcotic Substances Act, 1997. There are material discrepancies amongst the statements of P. Was.
Learned counsel has pointed out that P.W.5 himself is the complainant as well as the Investigating Officer of the case which is not warranted under the law. Learned counsel for the appellant has also challenged the report of Chemical Examiner and has prayed that the appeal be accepted and the appellant be acquitted.
13. Learned counsel for the appellant-convict Javed Iqbal argues that he was merely driving Suzuki Pick-up from which the narcotics were allegedly recovered by the police. The appellant is a poor person who purchased the Suzuki Pick-up on instalments and has been earning his livelihood while running his Suzuki Pickup. Learned counsel further contends that the allegations against the appellant are false. According to prosecution story, there is a joint recovery which is not recognized under the law. Further avers that the appellant is a mere driver and he had no knowledge as to what was inside the packets or cartons being carried by a passenger. There is no allegation that the narcotics were recovered from the secret cavities of the vehicle. Further contends that the vehicle from which the narcotics were allegedly recovered has not been produced in the court.
Further contends that no entry of recovery of narcotics was made in Roznamcha or about arrival of informer which makes the case of the prosecution doubtful. Further contends that the area from where the alleged recovery was effected is a populous area consisting of shops and hotels but no private person was associated with the recovery proceedings which is a glaring violation of section 103, Cr.P.C. In the circumstances, the appeal be accepted and the appellant be acquitted.
14. Conversely, learned Special Prosecutor of Anti-Narcotics Force has vehemently opposed these criminal appeals With the averments that a huge quantity of contrabands was recovered from the convicts-appellants. Learned counsel for the appellants have failed to point out any animosity amongst the complainant and the convicts. Further contends that in the cases of narcotics, the provision of section 103, Cr.P.C. Is not stricto sensu applicable and the police officials are considered as good witnesses as private witnesses. All the grounds raised by learned counsel for the appellants were fully dealt with by learned trial Court who have delivered an elaborate and well-reasoned judgment. Learned Law Officer asserts that these appeals are without any merit, therefore, these be dismissed.
15. We have heard the arguments advanced by learned counsel for the parties and have also perused the record with their able assistance.
16. Perusal of record highlights that a huge quantity of narcotics was recovered from the appellants. The recovered narcotics 1600 gram of heroine, 37.200 Kg of charas in shape of litters, 6.600 Kg of charas garda and 10 Kg of opium were taken into possession through recovery-memo Exh. PB. The vehicle P5 and its Registration Book P6 were also' taken into possession through recovery memo Exh. PB which was duly attested at the place of occurrence by Naveed Ahmed Constable.
17. The contention of learned counsel for the parties that it is a joint recovery which is not warranted under the law is misconceived as both the accused persons have admitted the recovery of contraband items from above said Suzuki Pick-up, However, they have taken plea that it belongs to one Malik Maalik. The statements of convicts made under. Section 342, Cr.P.C. Show that they are eye-witnesses of recovery proceedings. The contention of learned counsel for the appellant Javed Iqbal, that Javed Iqbal is a mere driver who purchased the Suzuki Pick-up on instalment for earning livelihood for himself as well as for his family and he does not know about what material a passenger is carrying in his packets or cartons etc. Is misconceived and self contradictory as no such plea was raised earlier before the learned trial Court or before the Investigating Officer. Rather both the convict persons have not only admitted their presence at the place of B occurrence but also have admitted the recovery of contrabands.
18. In their statements under section 342, Cr.P.C., they have taken plea that the contrabands belong to one Malik Maalik. After taking this plea of substitution, which is a rare phenomenon, none of the accused persons made a statement on oath under section 340(2), Cr.P.C. Though Javed Iqbal convict was driving Suzuki Pick-up but he had full knowledge of narcotics and he cannot be absolved from his responsibility because a driver is fully responsible for the narcotics being transported through his vehicle. So he is equally responsible for the smuggling of narcotics.
Reliance is placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case titled as, "Ghulam Qadir v. The State", reported as PLD 2006 SC 61.
19. The next contention of learned counsel for the convicts is that provisions of section 103, Cr.P.C.
Were not complied with as the place from where the narcotics were recovered is a thickly- populated area is misconceived because by virtue of, section 25 of Control of Narcotic Substances Act, 1997, non-citing of a public witness was not fatal to prosecution case because section 103, Cr.P.C. Had been specifically excluded from its application in cases of narcotics. In this regard, we have benefited from the law laid down by the Hon'ble Supreme Court of Pakistan in case titled as, "Muhammad Khan v. The State", reported as 2008 SCM R 1616.
20. A huge quantity of narcotics was recovered from the possession of both the convicts. It is not a case against an individual rather it is a case against the society. There is no material discrepancy amongst the statements of P.Was. The prosecution has proved its case beyond any shadow of doubt. Learned counsel for the appellants have failed to point out any illegality or material discrepancy in the B impugned judgment.
21. For what has been discussed, above, the Criminal Appeal No.246 of 2007 filed by Saved Iqbal is dismissed. Since appellant Ghalib Hussain is a first offender, therefore, in die light of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled as, "Muhammad Tariq v. The State", reported as 2009 SCM R 1220, Criminal Appeal No.255 of 2007 is partially allowed and death sentence of appellant convict Ghalib Hussain is converted into life imprisonment. Benefit of section.
382-B, Cr P. C. Already extended and fine imposed shall continue C.S.R. No.05/RWP of 2009 sent by learned trial Court for confirmation or otherwise of death sentence of Ghalib Hussain is answered in NEGATIVE..