' SHEHRAM SARWAR CH., J.--Shoaib Khan and Fazal Khaliq, appellants, were involved in case FIR No,249, dated 15.03.2006, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Pindi Bhattian, District Hafizabad, and were tried by learned Additional Sessions Judge/Judge Special Court for C.N.S.A., 1997, Pindi Bhattian, who vide judgment dated 06.03.2010, convicted the appellants under Section 9(c) of the Act and sentenced as under:-
1. Shoaib KhanDeath Sentence along with fine of Rs.
6,00,000/- (rupees Six lakh only) and in default whereof to further undergo simple imprisonment for three years.
2. Akmal KhanImprisonment for life along with fine of Rs.
3,00,000/- (rupees three lakh only) and in default where of to further undergo for one year and six months, simple imprisonment.
3. Fazal KhaliqImprisonment for life along with fine of Rs.
3,00,000/- (rupees three lakh only) and in default whereof to further undergo for one year and six months' simple imprisonment.
4. Murad KhanTwelve years and six months along with fine of Rs.
60,000/- (rupees sixty thousands only) and in default whereof to further undergo nine months' simple imprisonment.
2. Feeling aggrieved by the judgment of the learned trial court, Shoiab Khan and Fazal Khaliq (appellants) impugned the same through filing the above said criminal appeals,. Whereas, the learned trial court forwarded Capital Sentence Reference No,23-N of 2010 for confirmation of the death sentence inflicted upon the Shoaib Khan (appellant), in terms of section 374, Cr.P.C. As all these matters have arisen out of the same FIR, therefore, we intend to dispose of the same through this single judgment.
3. It is pertinent to mention here that Murad Khan, co-convict of the appellants has already served out his sentence as confirmed by learned Addl. Prosecutor General and his appeal is not pending before this Court, whereas, Akmal Khan died during the pendency of Crl. Appeal No,724 of 2010, therefore, the said appeal to his extent stood abated vide order dated 23.04.2014.
4. The prosecution story as alleged in the FIR (Exh.PE) recorded on the written complaint (Exh.PA) of Abdul Azeem S.I. (PW.1), is that on 15.03.2006 at about 9:00 a.m. He (complainant) along with Muhammad Akhtar ASI, Azhar Iqbal 3621/C, Mohsan Raza 3583/C, Imran Asghar 3633/C, Rasheed Ahmed 3649/C, Ehsan Ullah 3609/C (PW.2), Javed lqbal 3629/C and Asghar Ali 3644/C, on official vehicle, driven by Ijaz Ahmad 3676/DVC were present near Zafar More, Sargodha Road in connection with patrol duty. In the meantime a Car bearing registration No,8839/LZN, having green colored number plate, in which four persons were boarded, came from Sargodha side which was signaled to stop but the same did not stop. The said car was chased by official vehicle and was made to stop across Chuchak Road and on inquiring, the four persons disclosed their names and addresses as Shoaib Khan son of Haji Badsha Khan, caste Pathan resident of Kheyber Agency Illaqa Gayer, who was driving the car and on search from underneath the driving seat, a shopper was recovered from which two packets of charas weighing 2 kg 20 grams whereas 28 packets of charas contained in a bag (tora) weighing 28 kg 280 grams was taken into possession from the lap of Akmal Khan son of Haji Muhammad Zaman, caste Afridi, resident of Chak No,82/5 Tehsil and District Haroonabad who was sitting on the front seat of the said car. Fazal Khaliq son of Inam Gul, caste Shanwari resident of Landi Kotal Tehsil and District Khyber Agency was sitting on the rare seat of the car and had a bag (tora) of charas in his lap containing 28 packets of charas weighing 28 kg and 280 grams. Murad Khan son of Sada Khan, caste Pathan, resident of Khyber Agency, who was sitting on the rare seat on left side, was holding a bag (tora) in his lap containing 10 packets of charas weighing 10 kg 100 grams which were taken into possession and then the trunk of the car was searched and from where five toras containing total 150 packets of charas were also recovered. The accumulated packets of charas 218 were weighed and found 233 kg i.e, five maund and 33 kg charas. In the meanwhile, on information Mirza Muhammad Asif DSP also reached the place of recovery in whose presence a sample of 10 grams each from each packet were separated for chemical analysis. And the parcels of samples and the remaining charas were sealed into parcels with the stamp of MA and the same were taken into possession vide recovery memo by the police. It was further alleged in the FIR that on further search, four number plates comprising two of IDM/2455 and other two of LRY/8839 were also recovered from the trunk of car which were also taken into possession by the police. It was also averred in the FIR that on further search of all the accused, a cash amount of Rs.20280/- along with mobile phone nokia 6100 from Shoaib Khan (appellant), an amount of Rs.1000/- along with mobile phone 3100 from Akmal Khan (appellant since dead) and a cash amount of Rs.1950/- along with a Rado wrist watch from Fazal Khaliq (appellant) were also taken into possession vide recovery memo by the Police. A car registration No,LZN/8839 was also taken into possession being suspicious under section 550, Code of Criminal Procedure, vide recovery memo by the Police.
5. After registration of the case, the Investigating Officer inspected the spot, prepared the rough site plan (Exh.PB) 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.
6. The appellants were charge sheeted by the learned trial court on 07.08.2006 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 six witnesses. Ocular/recovery account in this case has been furnished through Abdul Azeem, S.I. (PW.1), Ehsan Ullah 3609/C (PW.2) and Imran Asghar 3633-C (PW.3) Noor Muhammad S.I. (PW.4) investigated this case and while appearing in the witness box narrated the various steps taken by him during the course of investigation. Statements of rest of the prosecution witnesses are formal in nature. On 09.03.2009, learned ADPP closed the prosecution evidence while tendering the report of Chemical Examiner (Exh.PF).
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 as to why this case is against him and why the PWs deposed against him, Shoaib Khan (appellant) replied as under:- ' "All the P.Ws are A.N.F officials and they are interested in the success of the case. I am innocent and falsely been implicated in the present case. In fact on relevant day I had passed through Interchange Pindi Bhattian without Payment as well as fine of Motorway police 'regarding over speeding' on which the Interchange security officer informed the task force Incharage P.P regarding the same on which I was taken into custody and after eight hours illegal detention I was implicated in the present case."
' Similar was the standpoint of Fazal Khaliq (appellants) in their statements recorded under section 342, Code of Criminal Procedure.
8. Learned counsel for Fazal Khaliq (appellant) submitted that the impugned judgment has been passed in utter disregard to the material available on record and relevant law on the subject; that the story contained in the crime report qua mode and manner of recovery neither seems true nor appeals to reason; that nevertheless the recovery was effected from a thickly populated area, however, no private person was associated as a witness rather all the prosecution witnesses are government functionaries, who made dishonest statements; that the evidence of the. Prosecution witnesses of the recovery account is not trustworthy rather they remained inconsistent about the mode and manner of recovery of narcotic substance; that as a matter of fact nothing was recovered from the appellants and the alleged recovery has been planted by the Investigating Officer; that there is delay of 13 days in sending the samples to the office of chemical examiner, therefore the report of chemical examiner was wrongly relied upon while awarding sentence to the appellants.
9. Learned counsel for Shoaib Khan (appellant), while adopting the arguments of learned counsel for Fazal Khaliq (appellants), added that charas is not lethal as heroin, therefore, it is not a case of extreme penalty of death to the extent of Shoaib Khan (appellant) and prayed for reduction in his sentence particularly when the appellant is first offender.
10. Conversely, learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that at the time of their arrest, huge quantity of narcotic substance was recovered from the appellants, which is not denied. Learned Law Officer next stated that both the prosecution witnesses of recovery account fully substantiated the prosecution case and despite lengthy cross-examination they remained coherent on salient features of the prosecution version. Learned Addl Prosecutor General argued that in absence of any animosity, the prosecution witnesses being government officials had no reason to plant such a huge quantity of narcotic substance from their own pocket. It was contended that the report of Chemical Examiner with regard to recovered narcotic substance is positive, which fully substantiate the prosecution case against the appellants. Moreover, the appellants were also found guilty during the course of investigation as such their names were placed in column No,3 of the report prepared in terms of section 173, Cr.P.C. In the given circumstances, it was the argument of the learned Addl. Prosecutor General that appellants are not entitled to any exception/leniency and keeping in view the quantity of recovered narcotic substance, which. Was fully proved during the course of trial, the learned trial court has rightly convicted/sentenced . The appellants, which is in exact proportionate to the act committed by them.
11. We have heard the arguments of learned counsel for the appellants as well as learned Addl.
Prosecutor General and have gone through the record with their able assistance.
12. We have gone through the prosecution evidence of recovery account which is coming from the mouth of Abdul Aziz S.I (PW.1) and Imran Asghar 3633-C (PW:3). Admittedly .Both the prosecution witnesses being government functionaries are quite independent, as well as, unbiased and while appearing in the witness box both of them gave detailed pen-picture of the process of recovery of huge quantity of narcotic substance from the, possession of A the appellants. Fact also remains that during the course of trial both the prosecution witnesses were tested on the parameters of lengthy cross-examination, however, they remained coherent on salient features and 'nothing could be brought on record in favour of the appellants. Hence, from the above one thing is clear that appellants were the accused from whom the narcotic substance duly detailed in the crime report was recovered.
13. During the course of arguments learned counsel for the appellants had also urged that nothing was recovered from the appellants and the alleged recovery was planted upon them. However, neither the investigation carried out by the Investigating Officer was challenged nor during the course of investigation, as well as, during trial even a single circumstance was brought on record to substantiate that the prosecution witnesses had previous ill-will against the appellants, which prompted them to plant such a huge quantity of narcotic substance, which even otherwise does not appeal to reason that the prosecution witnesses had ought to have purchased from their own pocket. We have also been .Persuaded to observe' that by now it is the consistent view of the superior courts of the country that police officials are as good witnesses as anyone else and their statements cannot be discarded on this score alone.
14. Moreover, during the course of investigation the appellants were found guilty as such their names were placed in column No,3 of the report prepared in terms of section 173, Cr.P.C. All these factors depict that prosetution has successfully 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. Could not be substantiated through any. Independent circumstance.
Even the appellants were having opportunity to advance their version either while appearing as their own witnesses in terms of section 340(2), Cr.P.C. Or through adducing evidence in their defence; however, the opportunity was not assailed. From the above this Court is persuaded to hold that keeping in view the overwhelming material brought on record, the learned trial court was rightly justified in recording conviction against the appellants under section 9(c) of the Control of Narcotic Substances Act, 1997.
15. As far as contention of learned counsel for Shoaib Khan (appellant) regarding reduction in sentence is concerned, we have scanned the material available on record on the touchstone of principles/guidelines given by the superior courts from time-to-time. The basic salutary judgment with regard to quantum of sentence was delivered in the case of "Rehmat Shah Afridi v. The State"
(PLD 2004 Lahore 829); wherein following principles were laid down:- ' "---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."
' Subsequently while dilating this issue the august Supreme Court of Pakistan in a reported judgment in the case of Muhammad Tariq v. The State (2009 SCMR 1220) affirming the above criterion had held 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."
' Admittedly in the instant case contraband narcotic substance recovered from the Shoaib Khan (appellant) consisted of charas, therefore, the same is not lethal as heroin. As confirmed by learned Addl. Prosecutor General the appellant is first offender and there is no previous record of similar nature to his credit. Therefore, in such like cases, where the contraband substance recovered is charas/opium, which is of lesser gravity and magnitude as compared to the other substances such as heroin, it would be appropriate that 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. Reliance can be placed on case law titled as "Muhammad Aamir and others v. The State" (2012 PCr.LJ 1035). Hence, the death sentence awarded by the learned trial Court to Shoaib Khan (appellant) is converted into imprisonment for life. Benefit of section 382(B), Code of Criminal Procedure, is also extended to the said appellant. The burden of fine as ordained by the learned trial court, however, shall remain intact.
16. In view of the above discussion, Crl. Appeal No,561 of 2010 filed by Shoaib Khan (appellant) is dismissed with the above said modification.. However, the Crl. Appeal No,724 of 2010 filed by Fazal Khaliq (appellant) is dismissed in toto.
17. Capital Sentence Reference No, 23-N of 2010 forwarded by the learned trial court fails, which is answered in NEGATIVE. Death sentence inflicted upon Shoaib Khan (appellant) is NOT CONFIRMED.