JUDGMENT SYED HASAN AZHAR RIZVI, J.---The appellant being aggrieved and dissatisfied by the impugned judgment dated 25-5-2010 passed by the Judge Special Court No.1 (CNS), Karachi in Special Case No.93 of 2009 The State v. Muhammad Yaseen son of Noor Hussain, who was convicted and sentenced to suffer R.I. For five years and also pay fine of Rs.50,000 (Rupees fifty thousand only) and in default of payment of fine he will suffer S.I. For three months, has filed the present Jail Appeal.
2. The brief facts given rise to the present Jail Appeal are that ANF received spy information that two persons Yaseen and Mukhtar will smuggle Heroin to Dacca Bangladesh by Flight No.BG-032 from Jinnah International Airport, Karachi to abroad. On that information Sub-Inspector Salman Shaukat of Police Station ANF-C, Karachi, constituted a raiding party consisting upon him and other ANF staff duly armed with official weapons and vehicle proceeded from Police Station vide Entry No.12 at about 0530 hours and reached at about 0600 hours outside the International Departure Lounge, JIAP, Karachi. They met with spy and started secret surveillance over there. On the pointation of spy they saw two persons having trolley bags in their hands coming towards the departure gate, they rushed to apprehend them, but due to rush of people, one of them disappeared by leaving his trolley bag, whereas the other one was captured. Persons present there were asked to act as witness, but they excused, therefore, PC Amir Mukhtar and PC Naeem Arshad of ANF were nominated as musheers. On inquiry, apprehended person disclosed his name as Yasin son of Noor Hussain. He also disclosed the name of escapee as Mukhtar son of Iqbal. He was having blue color trolley bag. On checking of the trolley bag they found two white plastic thellies containing Heroin weighing 2,200 Kilograms. On search of accused Yasin they had recovered one passport, air ticket from Karachi to Dacca, Dacca to Karachi, photocopy of NIC, one mobile phone Nokia, brown color, purse containing 2000 takka, Cash Rs.1040. They had also checked the trolley bag left by the escapee and found that white Heroin weighing 02 Kilograms. Total weight of the Heroin was 4.200 Kilograms recovered from the bag of the present appellant and from the bag of the escapee. They had drawn the samples weighing 10 grams from each recovery and sealed.
Accused Yasin arrested at the spot. Such masheernama of recovery and arrest was prepared there. Samples in sealed parcel were sent to the Chemical Examiner. Chemical Report received in positive.
3. On completion of investigation Challan of the case was submitted before the Special Court-I, Control of Narcotics Substances, Karachi.
4. The appellant was supplied copies of documents, receipt obtained, charge was framed against appellant who, plead not guilty. Evidence of complainant P.W.1, S.I, Salman Shaukat was recorded, who produced the memo of arrest and recovery, Roznamcha Entry of Departure and Arrival, Report of Chemical Examiner, Passport and Air Ticket of the appellant. P.W.2 Amir Mukhtar, Masheer of arrest and recovery was examined before the trial Court. Accused was examined under section 342, Cr.P.C. Who refuted the allegations and claimed himself to be innocent, neither he was examined himself on oath nor produced any evidence in his defence.
5. While placing reliance upon authority reported in 2008 SCM R 865 Gul Raeef Khan v. The State, the trial Court considering the fact that the appellant is first offender having no involvement in such like cases earlier and sole bread earner of his family. The trial Court after hearing the counsel for the appellant and the Special Prosecutor for the State convicted and sentenced the appellant to suffer R.I. For five years and to pay fine of Rs,5000 and in default of payment of fine he will suffer SI for three months. The trial Court has also granted benefit of section 382, Cr.P.C. To the appellant.
6. The appellant sent the present Criminal Jail Appeal along with an application for condonation of delay in filing the appeal on 9-9-2010. One of us Mr. Justice Amir. Hani Muslim directed the office to fix the matter in Court, call the R&P, issue notice to the Special Prosecutor ANF and number the appeal. On 4-10-2010 the appellant was produced in custody before us.
7. We have heard the arguments of the appellant and Ms. Abida Parveen Channar, the Special Prosecutor ANF.
8. The appellant present in Court submits that P.W.2 Amir Mukhtar, Masheer of recovery and arrest in his evidence admitted that no contraband was recovered from appellant Yasin, but when we perused the cross- examination of P.W.2 Amir Mukhtar who deposed before the trial Court that, "it is incorrect that no contraband was recovered from the bag of present accused Yasin." The appellant further submits that the sentence awarded by the trial Court is not proved from the material brought on record and the trial Court has not taken into consideration the contradictions between the statement of prosecution witness and the complainant.
9. Ms. Abida Parveen Channar, Special Prosecutor, ANF supported the judgment of the trial Court and contended that the judgment is proper, 2,200 Kilograms Heroin was recovered from the bag of the appellant during the surveillance by ANF Officials, the charge has been fully proved by the prosecution witnesses, the samples were sealed and packed in khaki envelopes at the spot and were sent for chemical analysis and the report of the Chemical Examiner is in positive.
10. After hearing the appellant who is present in Court in person and Ms. Abida Parveen Channar, Special Prosecutor, ANF, we have also perused the record.
11. The complainant 5.-I. Salman Shaukat and PC Amir Mukhtar, the Masheer of recovery and arrest, who are the eye-witnesses supported the prosecution case and stated that on the pointation of the spy the appellant was apprehended and on checking of his trolley bag 2.200 Kilograms of Heroin was recovered. Both the prosecution witnesses were subjected to lengthy cross- examination by the defence counsel, but their evidence remained unshaken, un-shattered, uncontroverted and consistent throughout. No significant and material contradiction, discrepancy improvement and exaggeration have been noticed by us in the evidence of both the prosecution witnesses. The appellant has failed to show us from the record that the prosecution witnesses, or the raiding party of ANF had any hostility, enmity, or personal grudge with the appellant to implicate him falsely. Nor we found any omission or commission by the ANF authority which could render the impugned judgment nullity. The samples which had been taken from each packet from recovered were sealed at the spot and were sent to the chemical analyzer and the report of Chemical Examiner found in positive. The entire case property was produced before the trial Court.
Recovery of passport and air ticket of the appellant and currency from the appellant fully establishing the presence of appellant at airport.
12. The discrepancies mentioned in the Memo of Jail Appeal and pointed out by the appellant before us at the time of arguments were insignificant and had no material bearing on the fate of this appeal. The judgment of the trial Court is well reasoned, comprehensive and based on the evidence produced before it. The trial Court has already taken a lenient view while awarding sentence in line with the judgment of Gul Raeef Khan v. The State, reported in 2008 SCM R 865 that the appellant was the first offender having no involvement in such like cases previously and was the sole bread earner of his family.
13. We for the aforesaid reasons by our short order, dated 4-10-2010 had dismissed the appeal.