' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Aamir son of Atta-ur-Rehman, Caste Qureshi and Abdul Qasim son of Abdul Nazeer, caste. Awan, both residents of village Jahangira, Tehsil Chhota Lahor, District Sawabi, appellants, were involved in case F.I.R. No,27, dated 16-1-2005, offence under section 9(c) of the Control of Narctoic Substances Act, 1997, registered at Police Station Pirwadhai, District Rawalpindi, and were tried by learned Addition and Sessions Judge, Rawalpindi, who vide judgment dated 15-12-2009, convicted the appellants under section 9(c) of the Act and sentenced each of them to death with direction to pay Rs, 2,00,000 each as fine and in case of nonpayment whereof, to undergo two years' S.I.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants impugned the same through filing Criminal Appeal No,523 of 2009, whereas, the learned trial Court forwarded Capital Sentence Reference No,10-N of 2009 for confirmation of the death sentence inflicted upon the appellants, in terms of section 374, Cr.P.C. As both the matters are arising out of the same F.I.R., therefore, we intend to dispose of the same through single judgment.
3. The prosecution story as alleged in the F.I.R. (Exh.PC/2) recorded on the written complaint (Exh.PC/1) of Muhammad Razzaq, Inspector/SHO, Police Station, Pirwadha , District Rawalpindi (P.W.5), is that on 16-1-2005 he along with Zafar Iqbal, ASI (P.W.3), Muhammad Afsar 495/LHC, Muhammad Akram 4599/HC, Riasat Ali 1376/C and Muhammad Arif 167/C was present at Adda Pirwadhai in connection with patrol duty. The informer passed on information that two persons having huge quantity of charas were coming towards Adda Pirwadhai and if picket is established near Corner Hotel, they could be arrested. As per information, police made a picket near Corner Hotel and started surveillance. At about 10-30 p.m. Two persons having each bag/tora on their respective shoulders came in front of the Corner Hotel from the street. They were apprehended and they disclosed their names as Muhammad Amir son of Atta-ur-Rehman, Caste Qureshi, resident of Mohallah Jahangira Village, Tehsil Chhota Lahor, District Sawabi and Abdul Qasim son of Abdul Nazeer, Caste Awan, resident of Mohallah Jahangira village, Tehsil Chhota Lahor, District Sawabi.
On the search of bag carried by Muhammad Aamir the police recovered two black shopping bags which were containing charag in the shape of litters, which were 443 in number and the charas was weighed and found to be 45 Kgs. Out of the recovered charas 50 grams each from each litter was separated for chemical analysis. On the search of tora carried by. Abdul Qasim, the police recovered two shopping bags of black colour, which were containing charas. One shopper was weighed and was found containing 27-Kgs. Charas whereas from the second shopping bag 21- Kgs. Charas was recovered. Out of the recovered narcotic, the police separated 50 grams each for the purpose of chemical analysis. The complainant drafted complaint (Exh.PC/1) and sent the same, to Police Station through Muhammad Arif C/167 for registration of formal F.I.R. (Exh. PC/2).
4. After registration of the' case, the Investigating Officer inspected the spot, prepared the rough site plan (Exh.PE) of the place of occurrence, recorded the statements of prosecution witnesses and on his return to Police Station handed over the case property to The Moharrar Malkhana for its safe custody and onward transmission to the quarter concerned. Having found the appellants guilty, the Investigating Officer after preparing report under section. 173, Cr.P.C, sent the same to the court of competent jurisdiction.
5. The appellants were charge-sheeted by the learned trial Court on 12-5-2003 under section 9(c) of Control of Narcotic Substances Act, 1997 to which they pleaded not guilty and claimed trial.
Prosecution in order to prove its case produced as many as 5 witnesses. Occular/recovery account in this case has been furnished through Muhammad Razzaq, Inspector/SHO (P.W.5) and Zafar Iqbal, ASI (P.W.3). Besides Muhammad Razzaq, Inspector (P.W.5) had also conducted partial investigation of the case. Azhar Hussain Shah, S.I. (P.W.4) had also partially investigated the case.
Statements of rest of the prosecution witnesses are formal in nature.
6. On 11-12-2009, learned DDPP gave up Muhammad Afsar, 495/LHC, P.W. Being unnecessary and after tendering in evidence the report of Chemical Examiner regarding recovered charas from Muhammad Amir accused (Exh.PF), report of Chemical Examiner regarding recovered charas garda from Abdul Qasim accused (Exh.PG) and charas recovered from Abdul Qasim accused (Exh.PH), he closed the prosecution evidence.
7. The appellants were also examined under section 342, Cr.P.C.. Wherein they neither opted to lead defence evidence nor opted to appear as their own witnesses as provided under section 340(2), Cr.P.C. In disproof of the allegations levelled against them. To a question why this case is against him and why the P.Ws. Deposed against him, Abdul Qasim appellant made the following deposition:-- "All the P.Ws. Are police officials. No public witness from the Hotel or passerby was asked to join the recovery proceedings. Though it was admitted during cross-examination that many people from the public gathered at the spot when I was apprehended by the police. All the witnesses are interested witnesses are for that reason they deposed against me in the court".
' To a similar question Muhammad Aamir appellant made the following statement:-- "The P.Ws. Are highly interested witnesses. No public witness and disinterested witness was produced against me. The Investigating Officer admitted during cross-examination that he joined public witnesses in the investigation but no independent witness from public was produced against me and I have been falsely implicated in the case".
8. 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 appellants as stated above.
9. At the very outset, learned counsel for the appellants 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 articles used for weighing the contraband charas and the time consumed in the recovery proceedings. 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 charas.
Learned counsel vehemently stated that charas 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 Twig v. The State (2009 SCMR 1220) argued that in similar situation, this Court had converted death sentence into imprisonment for fife, therefore, keeping in view the dictum laid down in aforesaid reported cases, the appellants being first offenders, the extreme penalty of death is not called for.
10. On the other, learned Special Prosecutor ANF stated that the appellants were arrested red handed having huge quantity of contraband charas, which is not denied. Moreover, the recovery of narcotic substance fully connects them 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 against the appellants. In the given circumstances, it was the argument of the learned Law Officer that appellants are not entitled to any exception and the learned trial Court has rightly given dose to the appellants, which is in exact proportionate to the act committed by them.
11. We have heard the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor-General and perused the record.
12. 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 appellants hate not alleged any animosity against the prosecution witnesses. All the prosecution witnesses remained consistent on the salient features of the A prosecution version. Although they were subjected to lengthy cross-examination, however, the defence could not fetch anything in their favour. The report of Chemical Examiner is positive, which prima facie connects the appellants with the commission of offence. The argument of learned counsel for the appellants that all the prosecution witnesses are government functionaries, it is nowhere mentioned that statements of police officials cannot be taken into consideration and those are to be discarded straightway without any rhyme or reason. Moreover, the prosecution witnesses had no against the appellants.
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 depict that prosecution has ably established its case against the appellants. The defence version, on the other hand, as adduced by the appellants in their statement recorded under section 342, Cr.P.C. Is not confidence inspiring.
13. So far as contention of learned counsel for the appellants that the samples were consolidated is concerned, we may observe here that admittedly out of ninety three Kgs. Charas recovered from both the appellants, which was consisting 443 litters/slabs of the narcotic recovered from Muhammad Aamir and garde charas and charas in the shape of salai recovered from Abdul Qasim, only 150 grams was separated 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 5.9 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..."
14. 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."
' 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 him a chance to mend his ways in his future life."
As far as recovery of charas is concerned, although it is contraband charas but it is not lethal as heroin especially when it is admitted that the appellants are the first offenders and there is no previous record of similar nature at their credit. Therefore, in such like cases, where the contraband recovered is charas, 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.
15. In sequel to above discussion, Criminal Appeal No,923 of 2009 filed by Muhammad Aamir and Abdul Qasim appellants is dismissed while modifying the sentence of death into imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to the appellants. The burden of fine as ordained by the learned trial Court shall remain intact. Capital Sentence Reference No,10-N of 2009 fails, which is answered in NEGATIVE. Death sentence inflicted upon Muhammad Aamir and Abdul Qasim appellants is NOT CONFIRMED.