' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Iqbal son of Muhammad Amin Ghuman, resident of Leather Pushion Football Factory, Bhabrianwala Phatak, Pir Kakay Ali Shah, Post Office New Adalatgarh, Tehsil and District Sialkot, appellant, alongwith Sail Khan, Mukhtiar Ali and Muhammad Naseer alias Qazi (all convicted separately) was involved in case F.I.R. No, 1, dated 25- 3-2008, offence under section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Sialkot and was tried by Mr. Ishtiaq Ahmad, learned Judge, Special Court Control of Narcotic Substances, Lahore. The learned trial Court seized with the matter in terms of judgment dated 9-2-2011 convicted the appellant under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to death. He was also held liable to pity Rs,20,00,000 as fine and in case of default in payment thereof, to further undergo S.I. For two years.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellant impugned the same through filing Criminal Appeal No,26-J of 2011, whereas, the learned trial court forwarded Capital Sentence Reference No,9-N of 2011 for confirmation of death sentence inflicted upon the convict, in terms of section 374, Cr.P.C. As both the matters are arising out of the same judgment of the learned trial Court, therefore, these are being disposed of through single judgment.
3. The prosecution story as contained in the F.I.R. (Exh.PA/1) recorded on the written complaint (Exh.PA) of Sher Ali Shah Sherazi, 5.-I. (P.W.3)/complainant is that on 25-3-2008, on the direction of the superior officers of ANF with regard to spy information that Iqbal, Mukhtiar and Sail Khan engaged in smuggling/trafficking of narcotic substance and that Sail and Mukhtiar were expected to visit Sialkot with huge quantity of narcotics on which a raiding party headed by the complainant, Subedar Iqbal, Gull Shad, Hafeez, Ansar Sepoy, Jahangir Khan/constable, Aftab constable, Nawaz, Munawar driver and other officials of ANF was constituted. The raiding party in the company of informer reached near Shahban 'Phattak" while boarding in official vehicle and started surveillance of suspected car. At about 8-00 a.m. Car Toyota Corolla bearing Registration No,LXR/2966 reached there from Wazirabad side. On the pointation of informer, the car was intercepted and the accused were captured. During interrogation the person on driving seat disclosed his name as Sail Khan son of Barra, whereas person on front seat disclosed his name as Mukhtiar Awan. When interrogated about the narcotic substance, Sail Khan accused brought out plastic bag from the nepha of his shalwar and presented to the complainant, which was found contraband heroin weighing 1200 grams. Out of the recovered narcotic substance, the complainant separated five grams and made into sealed parcel for chemical analysis. Mukhtiar accused also produced a packet containing 1200 grams heroin out of which the complainant/ Investigating Officer separated five grams for chemical analysis. Both the accused also disclosed that in the cylinder of car heroin was lying on which the gas cylinder was chopped out of which three plastic bags of heroin each weighing 1200 grams (total 3600 grams) was recovered out of which the Investigating Officer separated 5/5 grams heroin from each packet and made into sealed parcel for chemical analysis. The accused made disclosure that the recovered contraband heroin was handed over to them by Shahid son of Habib Afridi, resident of Jamrud Agency for transporting the same to Muhammad Iqbal Ghuman at his factory situated at Bhabarianwala Phattak and that they used to smuggle the heroin abroad while hiding in secret cavities inside the footballs. On this disclosure after arresting both the accused the raiding party While riding on official vehicle reached Leather Pushion Factory situated at Mauza Bhabhrian Wala, Railway Crossing where Iqbal and Muhammad Naseer were present in a room and busy in packing the contraband heroin pieces in the footballs. At that time thousands of leather pieces were lying there for the preparation of the footballs. The raiding party caught Iqbal and Naseer on which Iqbal disclosed his identity as Muhammad Iqbal son of Muhammad Ameen, caste Guhman, owner of the factory. The other accused disclosed his name as Naseer Ahmed alias Kami son of Abdul Haq, who was hired to stitch the footballs. The complainant chopped the stitched footballs and the pieces lying there out of which contraband heroin was recovered, which was amalgamated into one bag and it was found 15-KGs white heroin out of which the complainant separated 5 grams and made into sealed parcel for chemical analysis. The remaining heroin was also made into sealed parcel by the Investigating . Officer and took into possession vide recovery memo Exh.PB attested by Aftab and Jahangir constables. On disclosure of the accused, the complainant checked a 'Tora, which contained ten packets filled with heroin.
Every packet contained 1-KG contraband heroin and the total contraband heroin was 10-KGs. The complainant separated five grams heroin from each packet and made into separate sealed parcel for chemical analysis. The remaining contraband heroin was packed in the same Tora (P-2) and taken into possession by the Investigating Officer vide recovery memo Exh.PC. On personal search of Muhammad Iqbal, the Investigating Officer recovered Rs,4,000 consisting four currency notes each denomination Rs,1,000 (P-3/1-4), a cell phone (P-4), visiting card (P-5), passport (P-6), three expired passports (P-7/1-3), CNIC (P-8) and took into possession vide recovery memo Exh.Pb, attested by the P.Ws. He also recorded their statements under section 161, Cr.P.C. On the personal search of Naseer accused, the Investigating Officer recovered one currency note of 10 rupees (P-9), made into sealed parcel and took into possession vide recovery memo Exh.PE. Thereafter, the complainant/ Investigating Officer secured footballs and pieces into four cartons (P-10/1-4) and made into sealed parcel and took into possession vide recovery memo Exh.PG. The complainant drafted complaint (Exh.PA) and sent the same to Police Station for registration of formal F.I.R.
' On his return to Police Station the Investigating Officer deposited the case property with Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. He also recorded the statements of the Moharrar and the courier of the parcels under section 161, Cr.P.C. Having found the appellant guilty, the Investigating Officer after preparing report under section 173, Cr.P.C, sent the same to the court of competent jurisdiction.
5. The appellant was charge-sheeted by the learned trial Court on 9-2-2010 under section 9(c) 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 four (4) prosecution witnesses.
' Sher Ali Shah Sherazi, S.-I. (P.W.3) is the complainant, as well, Investigating Officer of the case, whereas, Aftab Ahmed HC (P.W.4) is the recovery witness. On presentation of complaint Muhammad Akram Head-Constable (P.W.2) had chalked out formal F.I.R. Without any addition or omission. Saparash Khan constable (P.W.1) had deposited sealed parcel in the office of Chemical Examiner.
6. On 14-1-2011 learned Special Public Prosecutor gave up Jahangir, Farrukh Saeed and Rana Muhammad Sarwar constables being unnecessary and after tendering in evidence the reports of Chemical Examiner (Exh.PG and Exh.PH), he closed the prosecution evidence.
7. The appellant was also examined under section 342, Cr.P.C.; wherein he opted to appear as his own witness in terms of section 340(2), Cr.P.C. And also opted to lead defence evidence. While replying to a question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "I was arrested on 25-3-2008 at 7-00 p.m. From the Rauf Tower Hotel from China Chowk Sialkot where I was having a dinner with my friends. Asmatullah arrested me from there. No narcotics were ever recovered from me or my Factory. I was roped in this case by AD Asmatullah who had taken away heavy machinery, fixtures and other gadgets and misappropriated the same. Sher Shah Sherazi was never an I.O. In this case. He was introduced as I.O. In this case by Asmatullah AD simply to evade his exposure during the trial. The P.Ws. Are subordinates of the complainant and they have deposed against me for the sake of their jobs."
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 proved beyond any shadow of doubt, which resulted into conviction of the appellant as stated above.
9. Learned counsel for the appellant while advancing his arguments submitted that the impugned judgment has been passed in a 'slipshod/sketchy manner and while recording conviction the learned trial Court committed grave misreading and non-reading of the prosecution evidence available on the record, therefore, the same is liable to be set aside on this score alone. Learned counsel vehemently contended that the appellant had no concern whatsoever with the recovered narcotic substance. As a matter of fact, learned counsel for the appellant urged, on 25-3-2008 the appellant was arrested from Rauf Tower Hotel at 7-00 p.m. When he was having dinner along with his friends, by Asmat Ullah Assistant Director. Learned counsel added that said Asmat Ullah took away heavy machinery installed in the factory of the appellant and in order to evade himself from the liability, he introduced Sher Ali Shah Sherazi S.I. (P.W.3) as Investigating Officer. Learned counsel further submitted that even P.W.3 being a Sub-Inspector was not authorized to investigate the case. Learned counsel forcefully argued that as per prosecution own version nothing was recovered trom the appellant and the whole narcotic substance was recovered from other co- accused. Learned counsel agitated that pursuant to their confessional statements Sail Khan and Mukhtiar Ali co-accused were sentenced to 6 years' R.I, whereas, Naseer co-accused from whom the whole narcotic substance was recovered, was sentenced to two years and nine months' R.I. But astonishingly the State did not opt to prefer appeal for such a short sentence. In these circumstances learned counsel for the appellant prayed that atleast the appellant is entitled to some leniency and his sentence may be altered from Death to Imprisonment for Life.
10. On the other, learned Special Prosecutor ANF vehemently opposed the contentions raised by learned counsel or the appellant with the submissions that pursuant to disclosure made by the other co-accused the raiding party conducted raid ' and arrested the appellant, who being owner of the factory was fully responsible for the narcotic trafficking. It was argued that the recovery of heavy quantity of contraband heroin valuing crores of rupees could not be rebutted by the appellant especially when nothing could be brought on record regarding the previous animosity against the appellant for his false implication. Positive report of Chemical Examiner, learned Law Officer urged, also links the appellant with the commission of offence. Regarding the statements of DW-2 and DW-3, learned Special Prosecutor ANF stated that as both of them had not opted to join the process of investigation, therefore, their belated statements lend no support to the case of the appellant. Learned Law Officer finally argued that as the prosecution proved its case to the hilt against the appellant, who was involved in trafficking contraband substance abroad and creating bad name for Pakistan in the international community, therefore, the learned trial Court while taking each and every aspect of the case rightly convicted the appellant and sentenced him to death, which even otherwise is in direct proportionate to the act committed by the appellant.
Learned Special Prosecutor finally prayed for dismissal of the appeal.
11. We have heard the arguments of learned counsel for the appellant as well as learned Special Prosecutor ANF 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 quite independent. While appearing in the witness box the pen-picture of the prosecution version with regard to process of recovery, both Sher Ali Shah Sherazi, S.-I. (P .W.3), complainant/Investigating Officer and Aftab Ahmed HC (P.W.4)/ recovery witness corroborated each other on salient features and their statements not only seem to be natural rather are squarely trustworthy. The recovery of heavy quantity of contraband heroin could not be rebutted by the appellant and as rightly contended by learned Special Prosecutor ANF, the same valuing crores of rupees could not be termed to have been planted by the government officials from their own pocket.
13. While making statement on oath in his defence in terms of section 340(2), Cr.P.C. The appellant had stated that he was owner of Leather Pushion Football Factory and also member of Sialkot Chamber of Commerce and Industry. Astonishingly on his arrest not a single attempt was made by the Sialkot Chamber of Commerce and Industry in favour of the appellant for his rescue even none bothered to condemn his arrest. Had he been involved in this case falsely, the Commerce Body of Sialkot might have taken immediate steps for his rescue but during the course of cross- examination the appellant himself admitted that no such effort was made either by his family members or by any business colleague. Even otherwise in his statement recorded under section 340(2), Cr.P.C. The appellant admitted that prior to the occurrence he did not know both the Investigating Officer/P.W.3, as well as, Asmat Ullah Assistant Director and he had even not seen them prior to registration of the instant case. In this backdrop why the government officials involved the appellant in this case could not be rebutted by the appellant.
' As far as the version of the appellant that he was taken into custody from Rauf Tower Hotel is concerned no body from the hotel, either its owner or anybody else, was produced in defence in support of appellant. Nevertheless Zulfiqar Ali (DW-2) and Abdul Sattar (DW-3) appeared before the learned trial Court, however, both of them, in categorical terms, admitted that when the appellant along with them was taken away by some persons in plain dresses, they did not raise any hue and cry. It does not appeal to reason that an industrialist would be taken away by persons in plain clothes, however, no step would be taken by any person including the hotel management.
Moreover, it has come in the evidence of Zulfiqar Ali (D.W.3) that he was released by the ANF authorities after 2/3 hours and he used to visit the Police Station, however, there is nothing on record that any matter in this regard was reported to the local police. Even otherwise none of the DWs joined the investigation process, therefore, their statements at belated stage, which are full of lacunas, cannot be given any credence and the learned trial Court was justified in discarding their testimony.
14. In this backdrop it can safely be held that the recovery of narcotics having been established and the reports of Chemical Examiner in this regard being positive, the learned trial Court was rightly justified in convicting the appellant under section 9(c) of Control of Narcotic Substances Act, 1997.
15. Now the question before this Court, which requires utmost care and caution is that whether the learned trial Court was justified in sentencing the appellant to death or as contended by learned counsel for the appellant the facts and circumstances of the case call for alternative sentence provided under the law. This Court is conscious of the fact that act of the appellant requires to be dealt with iron hands as he is involved in a notorious business, which is creating bad name for the Pakistani nation in the international community as a whole. However, we have observed certain aspects, which if discussed would help in determination of the quantum of sentence. The same are given in the ensuing paragraphs.
' Admittedly the whole narcotic substance i.e, heroin was not recovered from the personal possession of the appellant rather it was recovered from Naseer, appellant and as per prosecution own version when the appellant was arrested he was present in his room inside the factory.
' Perusal of record reveals that nevertheless the occurrence is stated to have taken place on 25-3- 2008, however, on recovery memo (Exh.PG) of footballs the date is mentioned as 28-3-2008.
' The reports of Chemical Examiner (Exh.PH and Exh.PJ) have not been signed by the Chemical Examiner.
' Nevertheless the raid was conducted inside a factory with hundreds of employees, however, during the course of cross-examination Sher Ali Shah Sherazi, S.I/Investigating Officer could not explain whether it was holiday on the date of occurrence or any other employee was associated during the recovery proceedings.
Admittedly Naseer co-accused from whom heavy quantity of contraband heroin was recovered made confession during the course of trial and the learned trial Court while extending extra- ordinary politeness reduced his sentence to that already undergone by him i.e, two years and nine months and the judgment of the learned trial Court was not assailed by the State before appellate forum, which has attained finality.
' Careful perusal of the record available on file reveals that neither there is any saza slip nor anything to establish that the appellant is previously involved in any similar criminal case. Even during the course of trial nothing could be brought on record by the prosecution in this regard.
Hence, it can safely be held that the appellant is first offender.
' Moreover, in section 9(c) of Control of Narcotic Substances Act, 1997 both death sentence, as well as, imprisonment for life have been mentioned. In the reported judgment in the case of Rehmat Shah Afridi v. The State (PLD 2004 Lahore 829) this Court had held following principles:-- "---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."(Underlining for emphasis)
16. Bare perusal of the statute with reference to section 9(c) of Control of Narcotic Substances Act, 1997, as well as, section 302(b), P.P.C. Nevertheless provides normal sentence of death, however, the life imprisonment is ' also mentioned as alternative sentence and the matter has been left with the courts to determine that which penalty to be inflicted keeping in view the peculiar facts of the case.
Analogy is drawn from the ratio decidendi of august Supreme Court of Pakistan in the case of MUHAMMAD SHARIF v. THE STATE (PLD 2009 Supreme Court 709) wherein it was held as under:-- "Life as we know in common parlance is the blessing of God. It is considered to be "the immediate gift of God and a right inherited by nature in every individual"
1. It means the period which life lasts or the period from birth to death. Our Constitution bestows a fundamental right under Article 9 that "No person shall be deprived of life or liberty save in accordance with law. "It starts with "no" which means "not any, not at all."
2. It clearly signifies a prohibition and forbids the deprivion of life of any person."
' The Apex Court in the case of Israr Ali v. The State (2007 SCMR 525), further held that:-- ----Sentence, quantum of--- Principle---Question of sentence demanded utmost care on the part of court dealing with life and liberties of people---Accused persons are also entitled to extenuating benefit of doubt on the question of sentence."
17. When facts of the case are scrutinized on the touchstone of dictum of law referred to above, we have arrived at the conclusion that to meet the ends of justice for safe administration of criminal justice it would be justified if the sentence of death is converted into imprisonment for life.
18. In sequel to above discussion, Criminal Appeal No,26-J of 2011 filed by Muhammad Iqbal/appellant is dismissed while modifying the sentence of death into imprisonment for life.
Benefit of section 382-B, Cr.P.C. Is extended in favour the appellant. The burden of fine as ordained by the learned trial Court, however, shall remain intact.
Capital Sentence Reference No,9-N of 2011 fails, which is answered in NEGATIVE. Death sentence inflicted upon Muhammad Iqbal is NOT CONFIRMED.
Sentence reduced.