SHAHID HAMEED DAR, J.---This judgment shall dispose ( Crl. A. No,245 of 2010 (Jamshed Khan v.
The State) having been filed against judgment dated 25.01.2010, whereby learned Additional Sessions Judge Gujranwala held the appellant guilty under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to death with fine of Rs,1 million, in default whereof, to serve six months in jail. The CSR No,11-N-2010, as submitted by the learned trial court under section 374, Cr.P.C. For confirmation of death sentence shall also be dealt with herein.
2. The prosecution story as given in the FIR (Exh.PA) by Muhammad Afzal Inspector/SHO (PW-4) is that he along with seven fellow-police-officials was present at Khan Town on 27.05.2007 when he received a spy information that a vehicle, Toyota diesel Land-Cruiser, bearing registration No,GB- 672/IVT, loaded with huge quantity of charas, was heading towards Lahore from Gujranwala on the GT road; on receipt of this information, he barricaded the GT road at the point of Gul Gunian; a little while thereafter, the fast-moving vehicle appeared on the scene with three unknown persons seated therein; it was signalled to stop but it sped past them and stopped at a considerable distance from the barricade; the police used their official vehicle to get side by side it; one of the passengers, who told his name Jamshed Ali, resisted his arrest and received head injury in the process; the suspected vehicle was combed, which led to recovery of 25 nylon bags, packed with contraband charas, which weighed 18 maunds and 25 kilograms, when put on the scale; one pao (250 grams) charas each from every tora was separated and rendered into sealed parcels for chemical analysis; the samples and rest of the bulk were seized by the police through memo of recovery; the above said vehicle was also taken into possession by them under section 550 Cr.P.C.
The complainant scribed complaint (Exh.PC) and dispatched it to police station Saddar Kamoki (Gujranwala) through Farooq Haider 1116/C for registration of case against the accused; Abdul Wahid 1042/HC (PW-3) drew up formal FIR (Exh.PC/1) No,271/2007 at 4.15 p.m., the same day for offences under sections 6, 9(c) of the Control of Narcotic Substances Act, 1997 read with section 156, the Customs Act, 1969 (deleted during investigation on 02.06.2007).
3. After necessary investigation, the police submitted report under section 173, Cr.P.C. Before the learned trial court for trial of the accused-appellant in accordance with the law.
4. On indictment, the appellant pleaded not guilty and claimed a trial. The prosecution produced seven witnesses, Maqbool Ahmad 1878/HC (P.W.1), Iftikhar Ahmad 1633/MHC (P.W.2), Abdul Wahid 1042/HC (P.W.3), Muhammad Afzal Inspector/SHO (complainant/ P.W.4), Sajid Ali 2850/C (P.W.5), Muhammad Anjum Naveed, SJM (P.W.6) and Raza Rauf, Inspector/I0 (P.W.7) to prove the charge against the appellant. The public prosecutor (Deputy District Public Prosecutor) tendered report of the chemical examiner (Exh.PG) in evidence and closed the prosecution case.
5. Thereafter, the accused/appellant was examined under section 342, Cr.P.C., whereby he professed his absolute innocence in the matter and denied all the allegations levelled against him, as false. In reply to the question, why this case against him and why the PWs had deposed against him, he contended as under:- "This case was registered against me due to mala fide of police. I was employee in the hotel namely "Kabal Khan" as waiter nearby P.S. Sadar Kamoke, Gujranwala and police officials often visit the hotel. One week prior to the registration of this case, the complainant of this case Muhammad Afzal SI came there with a female, I forbade them. Due to this, he turned against me and threatened me that he will teach me a lesson for this interference. So he falsely involved me in this case."
He did not lead any evidence in defence nor he deposed under section 340(2), Cr.P.C. Learned trial court held the appellant guilty of the charge and sentenced him accordingly, as noted in the opening paragraph hereof.
6. Learned counsel for the appellant has submitted that case against the appellant is false and it is a product of mala fides of the police; no independent evidence has been led by the prosecution to prove the charge against the appellant, who did not possess conscious knowledge about the narcotic substance having been packed in the loaded bags; the essential ingredient of the crime, the mens rea is absent; the narcotics substance was not recovered at the instance of the appellant which fact is evident from the prosecution case itself; the story of FIR is ambiguous as well as dubious as it did not tell as to what happened with the co-passengers of the appellant; the impugned judgment suffers from many a fallacies which may be annulled as a consequence thereof.
7. Learned Additional Prosecutor General Punjab defended the impugned judgment and contended that the appellant had exclusive knowledge as to placement of charas-filled bags in the vehicle, he boarded; a huge quantity of narcotic-substance i.e, 18 maunds and 25 kilograms charas was recovered from the Land-Cruiser, wherein the appellant and his co-accused were found seated by the police; the presumption under section 29 of the Control of Narcotic Substances Act 1997 would arise against the appellant as he failed to explain the recovery of the contraband or even about the truck; the prosecution had ably discharged the initial burden to prove the case beyond reasonable doubt, therefore, appeal in hand may be dismissed.
8. Learned Additional Prosecutor General Punjab had hardly exhausted himself, when learned counsel for the appellant made a . Surprising move and submitted that he honestly believed the impugned conviction to have been correctly made by the trial court but he humbly felt that sentence of death was too harsh to be awarded to the appellant as his past was blotless. He prayed that the sentence of death may be converted into imprisonment for life, which prayer was resisted in a lukewarm manner by the learned Additional Prosecutor General Punjab.
9. We have heard the learned counsel for the parties, gone minutely through the evidence and given anxious consideration to the submissions made at the bar.
10. There hardly remains any doubt as to veracity of the allegation against the appellant as learned counsel representing him frankly conceded that the conviction had been correctly made by the learned trial court and there was nothing wrong with it. It can safely be concluded that the prosecution has successfully proved the possession of the narcotic-substance from the appellant, who in disproof of the presumption under section 29 of the Act did not appear under section 340(2), Cr.P.C., nor he produced any witness in defence. The allegation that he consciously possessed afore-noted massive quantity of the contraband, stood impeccably proven beyond reasonable doubt, hence prosecution has every right to ask for sustaining the conviction. Sustained accordingly. The appeal filed by the appellant is therefore dismissed.
11. Nevertheless, coming to the quantum of sentence of death to the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997, it is observed that the prosecution did not agitate at any stage that the appellant was a previous convict or he bore a nasty character, spotted with ugly allegations like. The mystery hovering over the prosecution-case, as to who were the co- passengers travelling in the same vehicle with the appellant at the time of his arrest, where did they go from the spot and why were they let-off by the police, still remained unresolved. Who knows that they might have been the co-sharers/owners of the drug recovered and equally liable for its transportation from Gujranwala to Lahore. The enigmatic abandoning of the said travelling- duo by the prosecution is a crucial circumstance which needed to be looked at questioningly, as to the award of capital punishment to the appellant. Learned Additional Prosecutor General Punjab, in fact, on a court query, in all fairness admitted that the appellant's maiden involvement in a such like offence could be considered a mitigating circumstance with regard to quantum of sentence.
He joined by the learned counsel for the appellant almost submitted in unison that irrespective of the quantity of the contraband recovered, no death sentence has been affirmed/upheld by the apex court so far in case of charas.
12. While dealing with an identical situation, the apex court observed in Muhammad Tariq's case (2009 SCM R 1220) as under:- "According to section 9(c) of the Control of Narcotic Substances Act, 1997 four kinds of punishments have been provided for an accused, who is found in possession of narcotics substance exceeding one kilogram. The followings are the four sentences, which have been enumerated in the aforementioned section 9(c) of the Act:---
(i) Death. (ii) Imprisonment for life. (iii) Imprisonment for a term which may extend to 14 years, and
(iv) Fine of one million rupees.
5. However, in the event of quantity of narcotics substance exceeding 10 kilograms, a limitation has been imposed that the punishment shall not be less than imprisonment for life. The question arises as to why death, imprisonment for life and imprisonment up-to 14 years, have been provided in section 9(c) of the Act. 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. In the present case, we have not been informed that the appellant was previously involved in any case of such nature."
In an unreported case, which related to recovery of 3000 kilograms of charas, the honourable Supreme. Court of Pakistan while sorting out the issue of quantum of sentence of accused Syed Tanvir Hussain Naqvi (Crl. A. No,147/2006) and Khalid Khan Afridi (Crl. A. No,148/2006), who had been awarded the death sentence by the trial court and affirmed by this court vide judgment dated 18.05.2005 passed in Crl. A. No,232/2001, commuted it to imprisonment for life with the following observations:- "It is evident from the record and the judgments of the learned Courts below that they were, while awarding capital punishment to the appellants, swayed by the "huge quantity of narcotics" recovered in the case, weighing 3000 kgs, we are of the opinion that the premise on which capital punishment was awarded to the appellants is not proved beyond reasonable doubt and in accordance with law. We are, therefore, of the considered opinion that the award of death sentence to each appellant may result in a punishment which is in excess of the usual punishment awarded for comparatively smaller quantities recovered in similar cases. We are, conscious that even 400 kgs of charas is a substantial quantity but this amount is less than 15% of what was assumed by the Courts below as being proved against the appellants, thus justifying the sentence .Awarded to the appellants."
In yet another judgment, "Gul Badshah v. The State" reported as 2011 SCM R 984, the honourable Supreme Court of Pakistan commuted the death sentence of the appellant, who allegedly possessed 171 kilograms of charas, 70 kilograms of opium and 3 kilograms of heroin, to imprisonment for life on the ground that he might have not been consciously aware of concealment of contraband-items in secret cavities of the truck, being driven by him at the time, when it was intercepted, combed and taken custody of by the police.
In view of the discussion, supra, we believe that the extreme penalty of death would be too harsh to be inflicted on the appellant. He does not have any previous criminal antecedents so he has to be believed the first offender. His maiden involvement in a such like offence and the unsolved enigma, noted as above, certainly necessitate conversion of his death sentence to the punishment of imprisonment for life, within the mischief of the embargo, appended as a proviso to section 9(c) of the Act ibid, commuted accordingly.
13. The amount of fine and sentence of imprisonment in lieu thereof shall however remain intact.
The benefit of section 382-B, Cr.P.C. Shall be granted to the appellant.
14. The sentence of death of the appellant is NOT CONFIRMED and CSR No,11-N-2010 is answered in NEGATIVE.