' RAJA SHAHID MEHMOOD ABBASI, J.---Through this single judgment, we intend to dispose of Criminal Appeal No,129 of 2011, Criminal Appeal No,135 of 2011 and Criminal Appeal No, 139 of 2011 filed by the appellants-convicts Tahir Mehmood, Mazhar Hussain and Muhammad Shafiq through which they assails the vires of judgment dated 25th of March, 2011, passed by the learned Special Court, Control of Narcotic Substances, Rawalpindi, whereby, they were convicted under section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced to death penalty each with a fine of Rs one Million each. In default thereof, they were further held liable to undergo 03 (three) years S.I. Each.
2. Capital Sentence Reference No, 04-N of 2011 sent by the learned trial Court for confirmation or otherwise of death sentence of appellants-convicts shall also be answered through this judgment.
3. Precisely, the facts necessary for adjudication of instant appeals are that on 27-09-2007, Force Commander Regional Directorate, ANF, received secret information that at about 1.00 am (midnight) Tahir Mehmood and Muhammad Shafiq employees of Pakistan Air Force would reach at New Katarian Bridge Pirwadhai Road, Rawalpindi for supply of huge quantity of heroin to their specific customer on a Toyota Corolla white colour, having number plate 17020, on this information a raiding party comprising of Kamran Shaukat, Inspector PW.5, Tanveer ul Hanif, Inspector, Fajar Khan, ASI PW.4, Manzoor Hussain, HC and other ANF officials under the supervision of Capt. Junaid Ali, Assistant Director, reached at the concerned place and started surveillance, at 1.00 am, a vehicle bearing No, 17020, corolla white colour came from Peshawar side and stopped near Katarian Bridge, Rawalpindi. After a short while, another corolla car white colour came from Faizabad side from which a person was alighted and thereafter the said car proceeded ahead.
The, person alighted from second car then met two persons sitting in first car, who after opening back door of the car, brought out a bag lying on front seat and at the same time the raiding party overpowered all the three persons. The person who came in the 'second car from Faizabad side, having bag in his hand, disclosed his name gas Mazhar Hussain, resident of Pind Dadan Khan, District Jhelum. The person sitting on driving seat disclosed his name as Muhammad Shafiq whereas the other person sitting on front seat disclosed his name as Tahir Mehmood. Both of them were the employees of Pakistan Air Force. When the bag in possession of the appellant Mazhar Hussain was checked, 12 packets containing white colour heroin, weighing 18 kilograms wrapped in brown coloured insulation tape were recovered. After taking separate samples of one gram from each packet of Iferoin, 12 packets of samples and one packet of recovered heroin were made into sealed parcels. The said heroin, samples and bag were taken into possession. Further recovery of 29 packets weighing 36.760 kilograms was also effected from the other bag lying on rear seat of the car which firstly came from Peshawar side. The bag was opened from which 29 packets were recovered, out of those, 04 packets were with Khaki coloured tape and 25 were in white coloured cloth. On opening first four packs wrapped with Khaki coloured tape white colour heroin total 7.260 kilgrams were recovered. 1 gram was separateted from each packet, 04 packets of samples and 1 packet of recovered heroin were made into sealed parcels. On opening of 25 packets wrapped in cloth bags brown coloured heroin was found which in total is 29.500 kilograms. 1 gram was collected from each packet for samples. 25 packets of samples and 1 packet of recovered heroin were made into independent sealed parcels. Total recovered heroin (36.760 kilograms from second bag), parcels of samples, 'bag, car and registered book were taken into possession. Such memos were prepared on the spot and accused were arrested. On personal search of Mazhar Hussain appellant/accused mobile phone, Rs,424,310/-, a brown purse and his CNIC were taken into possession. On personal search of appellant/ accused Muhammad Shafiq two mobile phones, Rs,510/-, driving permit, his CNIC were recovered. On personal search of Tahir Mehmood, appellant/accused his CNIC, departmental card, visa debit card, leave certificate, delivery card CSD, Rs,5120/-, leather brown purse, motorcycle keys, a photograph with two negatives, two JAZZ SIM cards, different visiting cards were also recovered. This event was reduced into writing as complaint (Ex.PA) which lateron resulted into registration of crime report No, 77 dated 27-09-2007, offence under sections 9(c), 14 and 15 of The Control of Narcotic Substances Act, 1997, at Police Station ANF, Rawalpindi against the appellants Mazhar Hussain, Muhammad Shafiq and Tahir Mehmood.
4. After formal investigation, report under Section 173 of the Criminal Procedure Code, 1898 was prepared and submitted before the trial Court. The appellants were sent to face the trial after delivering the copies of the documents in terms of Section 265-C of the Criminal Procedure Code, 1898, the trial Court framed the charge against the appellants, to which they pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined five witnesses to bring home the guilt of accused viz. PW1.
Syed Suleman ASI, who recorded formal FIR of the. Case; PW.2 Muhammad Zubair, SI being Moharrer, kept articles of personal search, recovered narcotics along with samples at Malkhana and transmitted the parcels to the office of Chemical Examiner; PW3 Sajid Ali, constable, who deposited the parcels of samples in the office of Chemical Examiner, Rawalpindi; PW.4 Fajar Khan ASI, is a recovery witness and PW.5 Kaman Shaukat, Inspector is complainant, recovery witness and the I.O. Of this case. All the prosecution witnesses corroborated each other on material facts. After production of reports of chemical examiner Ex.PH and Ex.PI, learned Prosecutor closed the prosecution- evidence. The appellants in their statements recorded under Section 342, Cr.P.C.
Denied all the allegations of prosecution and claimed to be innocent. In reply to question "why the case against you and why the PWs deposed against you", versions of the appellants accused were as under:-- MAZHAR HUSSAIN "At the time of alleged occurrence, I was in Karachi. On my return to Rawalpindi through aero Asia and I was arrested from my ordinary place of residence situated in 151-A, Lane No,04, Phase HI, Gulraiz Housing Society, Rawalpindi at about 5.00 pm. I knew Haji Irshad as Haji Irshad had purchased property through me as I was a property dealer. ANF authorities asked me to provide his particulars and to identify him. As I could not make out? Their directions, so they considered me also as one of the associate of so-called gang. Entire prosecution story is false. All proceedings were made while sitting in police station. All employees are of ANF and they were not supposed to make the statement against the direction of high ups. I am innocent and I have nothing to do with alleged narcotics or my co-accused of this case."
MUHAMMAD SHAFIQ "I was an employee of the Air Force posted at Kamra. A few months ago somebody in Islamabad introduced me to Rab Nawaz Farid and he committed to arrange employment for my son abroad. I paid Rs,Two lacks to Rab Nawaz and he noted all my particulars and my sons's particulars. When he was arrested in a narcotic case, my where abouts were found in his house and on the basis of those addresses the ANF staff arrested me at Kamra while I and Tahir were sitting while taking tea over there. This is the only reason that ANF staffs either at the stance of Rab Nawaz or themselves implicated me falsely in this case. I am innocent. I have nothing to do with the narcotics. My whole previous record as a service man as a citizen of Pakistan is quite clear and no criminal .Or civil case has ever been instituted against me. All the witnesses are ANF officials, who deposed falsely just to .
Strengthen their case and to favour the prosecution."
TAHIR MEHMOOD "I am innocent. I have no concern with alleged recovery or with accused persons of this case. On the day of occurrence, I was standing at Kamra bus. Stop being free from official duty. I had to go to Rawalpindi to Dhoke Kala Khan to see my uncle Al-Haj Syed Hussain Khan. I had taken lift on the car from Shafiq accused. At about 6.00 pm we reached Rawalpindi. I was dropped at Faizabad and from there I was proceeding to my intended destination when an official vehicle of ANF came from backside. I was forcibly booked up and brought to police station where two other persons were also sitting. I made hue and cry and ask that why I was brought to police station but of no avail. There I came to know that I was involved in this case falsely and this is the reason I was not produced before the Area Magistrate on 27-09-2007. I am innocent."
6. The appellants/accused did not make statement on oath as required under section 340(2), Cr.P.C. Nor they opted to produce any defence evidence. On 26-02-2011, appellant/accused Mazhar Hussain filed an application for summoning of record of Days Inn Hotel Karachi from 25 to 27-09- 2007 as well as record of flight of Aero Asia from Karachi to Islamabad for 27-09-2007. The service of the concerned witnesses were effected and still they had to appear when Mazhar Hussain, appellant/ accused closed his defence evidence.
7. After completion of evidence from both the sides, the learned trial Court, after holding the appellants guilty of the offence, convicted them as mentioned in preceding paragraph No,1 above.
8. No one is appearing on behalf of appellant/accused Muhammad Shafiq, therefore, Mr. Muhammad Naveed Qureshi, Advocate has been appointed as defence counsel at State expenses to argue the case on behalf of appellant/accused Muhammad Shafiq in Crl. Appeal No, 139 of 2011.
9. Learned counsel appearing on behalf of Mazhar Hussain, appellant in Criminal Appeal No, 135 of 2011 contends that the impugned judgment of the learned trial Court against the appellant suffers from legal infirmities; that the appellant is absolutely innocent, in fact he was arrested from his house situated in Gulraiz Housing Society, Rawalpindi and has been falsely involved in the present case; that false and fictitious story regarding the arrival of the appellant from Faizabad side at the alleged place of recovery in a Toyota Corolla car is not proved by the prosecution; that prosecution miserably failed to connect the appellant with the commission of offence, even then trial Court awarded harsh punishment to the appellant which is not sustainable in the eyes of law; that Muhammad Zubair, SI (PW.2)/Moharrer Malkhana delivered the parcels of samples to Sajid, Constable PW.3, on 27-09-2007 but the chemical examiner report would reveal that the said samples were received in the office of chemical examiner on 29-09-2007 and in such eventuality there are strong reasons to believe that the samples were tampered during two days as such there was no legal value of the chemical report. In support of his contentions, he referred the following precedents, (2009 YLR 1724), (2003 PCr.LJ. 680), (2009 PCr.LJ 1334), (1986 PCr.LJ 418) and (2001 YLR 1123).
10. Learned counsel while appearing on behalf of appellant Tahir Mehmood in Criminal Appeal No,129 of 2011 contends that the learned trial Court has failed to apply his judicious mind which resulted in mis-reading and non-reading of prosecution evidence against the appellant; that no direct or actual recovery of contraband was allegedly effected from actual possession of the appellant; that the learned trial Court has failed to appreciate that the case to the extent of present appellant is entirely different and mere presence of accused in the vehicle is not enough to prove that he was in possession of narcotics lying in a car in two bags on rear seats; that the prosecution has failed to produce unimpeachable character; that a serious prejudice has been caused to the appellant as the complainant himself is also an Investigating Officer of the case; that harsh punishment has been awarded to the appellant on the basis of inadmissible evidence; that Investigating Officer could not bring on record any incriminating evidence in order to connect the appellant with the car in question; that section 14 of the Act was not attracted against the appellant as the I.0 could not bring on record any evidence to show conscious knowledge of the appellant over the narcotics.
11. Learned counsel appearing on behalf of Muhammad Shafiq in Criminal Appeal No, 139 of 2011 contends that the appellant is absolutely innocent; that the appellant is employed in PAF as driver, a poor man and can never think of such a heinous offence; that maximum penalty awarded to the appellant is very much harsh and being first offender deserves lenient view; that all the witnesses in the recovery proceedings are ANF officials and the I.O. Failed to join any independent witness in the recovery proceedings especially when he was already informed regarding the occurrence.
12. Conversely, learned Special Prosecutor appearing on behalf of Anti-Narcotic Force submitted that the prosecution in shape of Fajar Khan, ASI, PW.4 and Kamran Shaukat, Inspector, PW.5 has led sufficient evidence to prove the factum of recovery from the appellants. Further maintained that chemical examiner reports Ex.PH and Ex.PI support the version of the prosecution against the appellants; that prosecution in terms of section 29 of the Act discharge the onus of proof by leading cogent and convincing evidence but the appellants have failed to contrary; that accused persons were involved in a very heinous and serious offence and deserve for exemplary punishment in this regard and finally maintained that the learned trial Court was fully justified in awarding major penalty to the appellants.
13. We have heard the learned counsel for the appellants as well as learned Special Public Prosecutor and perused the record.
14. In order to prove its case, the prosecution has examined Kamran Shaukat, Inspector, PW.5, who was complainant of the case and also effected recovery from the present appellants at the fateful night. PW.5 while appearing has deposed that under the supervision of Capt. Junaid Ali, he along with other ANF officials reached at new Katarian Bridge, Peerwadhai Road, Rawalpindi, on official vehicle No, IDM5077 and IDF-629 at about 12.30 midnight. It was about 1.10 midnight when a car No,17020 with the mark of an arrow came there from. Peshawar side and stopped near bridge, in which Tahir and Shafiq were present. In the meantime, another car came there which was stopped across the road. After alighting a person, said car proceeded ahead, the person alighted then met with two persons, who were already present in the car arrived earlier near the bridge. Two persons present inside the car opened the door and then the person reached there subsequently has brought out a bag from back seat. In the meantime, all the three accused/appellants were overpowered. The sequence of occurrence shows that the car in which Tahir and Shafiq accused were present, 02 packets containing heroin were lying, whereby Mazhar Hussain, who picked up a bag was having huge amount of Rs,4,24,310/-. In the presence of witnesses, the bag possessed by the appellant Mazhar Hussain was searched and heroin weighing 18 kilograms, in 12 packets was recovered. One gram from each packet was separated for chemical examination. Said heroin PI, samples and bag P2 were taken into possession vide recovery memo Ex.PB. On search of car No, 17020 another bag lying on the back seat was searched, from which 29 packets of heroin were recovered. 04 packets white coloured heroin total weighing 7.260 kilograms was recovered. On opening of remaining 25 packets, chars weighing 29.500 kilograms was recovered, one gram was collected from each packet for samples. 25 packets of samples and one packet of recovered heroin were made into independent sealed parcels. Recovered heroin P3 and 25 packets of samples, bag P4, car P5 and registration book P6 were taken into possession vide recovery memo Ex.PC. He further deposed that en personal search of appellant Mazhar Hussain, mobile phone P7, Rs,4,24,3101- P8, purse P9 and his CNIC P10 were taken into possession by him vide. Inventory Ex.PD. It has come in evidence that after the recovery proceedings, he drafted complaint Ex.PA, which was sent to police station through Khalid Mehmood, driver for registration of formal FIR, which was tendered in the statement of Syed Salman, PW.1 as Ex.PA/1. The said witness was cross-examined at some length by the learned counsel for the appellants, however, he remained firm on the material points of his evidence. In addition to this witness, Fajar ASI was examined as PW.4, who witnessed the recovery and signed the recovery memos memos Ex.PC, Ex.PD, Ex.PE and Ex.PF. Whereas Sajid Ali, PW.3 took 41 sealed parcels of samples to the Chemical Examiner, Punjab, Lahore. Upon which reports Ex.PH and Ex.PI were prepared and tendered in evidence. Learned counsel for the appellants though pointed out some minor contradictions in the evidence of PW.3 and PW.5 but we have noted that those were not of, great importance as the case was registered on 27-09-2007 and these witnesses were recorded in the Court in 2011 i,e, after about 04 years of the registration of the case, obviously, with the afflux of time, it is quite natural that some minor contradictions may occur in the evidence of the witnesses. All the witnesses have remained firm on the material points and they had successfully discharged the initial burden of proving the recovery. The contentions of learned counsel regarding the date of delivery of 41 parcels of samples to the chemical examiner office is concerned, it is observed that though Muhammad Zubair, Moharrer, PW.2 deposed that on 27-09-2007, Kamran Shaukat, Inspector, PW.5 handed over to him 41 sealed parcels of samples of heroin and on the same day he handed over the parcels intact to Sajid, Constable for their onward transmission to the office of chemical examiner but the statement of Sajid Ali, PW.3 and chemical examiner report Ex.PH and Ex.PI reveals that 41 parcels of heroin were handed over. To Sajid Ali on 29-09-2007 and same were received in the office of Chemical Examiner Punjab on the same date.
As observed above, such minor mistakes may occur with the afflux of time. This minor slip of tongue would not be, at all helpful for the defence especially when the safe custody of the case property and the transmission of the parcels to the office of chemical examiner could not be negated even in cross-examination. The objection I. Raised by the learned counsel for the appellants regarding the dual functioning of PW.5 as complainant as well as I.O. At the same time.
The counsel for the appellants have failed to point, out any such legal provisions barring the function of complainant as Investigating Officer in a case. We are of considered view that when no prejudice is caused to the accused then functioning of complainant in his dual capacity is neither illegal nor unlawful. Guidance in this respect can be sought from "State through Advocate General, Sindh v. Bashir and others" (PLD 1997 SC 408). Where the Hon'ble Supreme Court of Pakistan has held that:-- "8....There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an I.O. So long as, it does not, in any way prejudice the accused person. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same...."
15. Now we would like to deal the question of production of vehicle No, 17020, Toyota Corolla during the trial in the Court. It is observed that the case property was produced before the learned trial Court as P1 and P2, non-production of car cannot be termed as fatal to the prosecution as recovery was not effected from any of the secret compartments or cavities of the said car rather the heroin was recovered from the bags, which were lying on the rear seat. It is observed with great reverence that the judgments referred by the learned defence counsel in support of his contentions are not attracted to the case in hand as the facts of the referred cases were altogether different. It is well settled principle of law that in criminal cases, facts of each case varies from other and each case is to be decided on the basis of its own peculiar facts and circumstances. Reference can be made to the case of Muhammad Mushtaq and another v. The State (2008 SCM R 742).
16. The submission of learned counsel for the appellant that no public witness was associated in the recovery proceedings. We do not see any force in the said contentions as section 25 of The Control of Narcotic Substances Act, 1997 clearly precludes the applicability of section 103 of the Criminal Procedure Code, 1898, to such proceedings conducted under The Control of Narcotic Substances Act, 1997, being a special law. The Control of Narcotic Substances Act, 1997 was even given overriding effect in view of its section 76, thus non-association of public witness during the recovery proceedings is of no consequences. According to the Hon'ble Supreme Court of Pakistan, police officials are equally good witnesses in absence of any proved enmity. Reliance is placed on 'Muhammad Khan v. The State", (2008 SCM R 1616).
17. So far as the contentions raised by the learned counsel for the appellant Tahir Mehmood that the appellant was sitting qn the front seat and had no conscious knowledge about the narcotics is concerned. We have gone through the evidence on record and find that the appellants Tahir Mehmood and Shafiq had the charge of vehicle for a long journey and they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The presence of two bags filled with heroin in the car, recovery of Rs,4,24,310/- from the possession of Mazhar Hussain, appellant, the manner of arrival of accused persons, their meeting and then to collect the bag leads to the conclusion that the presence of narcotics was in knowledge of the appellants. No further evidence is required from the prosecution and the case is fully proved against all the appellants. Reliance can be placed on "Nadir Khan and others v. The State" (1988 SCM R 1899) where the Hon'ble Supreme Court of Pakistan on Page No,1902 observed as under:- ".... We have gone through the evidence on record and find that the petitioner had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licence also.. As being persons incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The possibilities or the presumptions are dependant on the circumstance of each case and in' the present case the circumstances fully established their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it...."
' In their statements under Section 342; Cr.P.C. All the three appellants have different pleas.
According to Mazhar Hussain, appellant, he was in Karachi at the time of alleged occurrence and on his request record of Days-Inn Hotel and Aero Asia was ordered to be summoned but he closed his defence evidence maintaining that because of pressure of ANF record was destroyed. He could not bring on record any substantial evidence in support of his plea. He even did not make any statement on oath under Section 340(2), Cr.P.C. The accused Muhammad Shafiq admitted that he was an employee of Air Force posted at Kamra, his whereabouts were found from the house of.
One Rab Nawaz (co-accused), on the basis of those addresses, the ANF staff arrested him at Kamra while he and his co-accused Tahir Mehmood were taking tea. The plea of Tahir Mehmood, appellant was altogether different. His contention was that he took lift from appellant Muhammad Shafiq and was arrested from Faizabad. It is observed that both the appellants could not furnish any plausible explanation for their false implication in the case. The plea taken by the accused is not supported by any independent evidence. The plea of both the appellants Muhammad Shafiq and Tahir Mehmood is not even acceptable on the ground that as both are employees of Pakistan Air Force and there are no reasons for their false implication in such a heinous case. Furthermore, they did not make statement on oath under Section 340(2), Cr.P.C. In order to disprove the allegations against them. Despite the lapse of considerable period, they could not place on record any application filed against ANF authorities for their false implication. Even otherwise, this is an axiomatic that when an accused has taken a specific plea, the provision of Article 121 of Qanun-e Shahadat Order, 1984 would come into play, which describes that the accused, who had taken a specific plea, would have burden to prove it with cogent reasons and tangible proof, whereas in the present case, the defence remained failed, therefore, the same lacking force is hereby repelled and discarded, in view of the evidence available on record. This is not the case of defence that the occurrence had not happened, they divide only to the extent of their participation in the occurrence and the defence stance taken by the accused in a simplicitor denial which proves a stance in front of heavy flow of strong allegation of possessing huge quantity of narcotics, which has been proved against them, therefore, strong rebuttal was required for said purpose which the appellants do not have in their defence version.
18. The prosecution in terms of section 29 of The Control of Narcotic Substances Act, 1997, apparently discharge the onus of proof by leading cogent and convincing evidence but the appellant has failed to the contrary. By now, it is well settled principle of law that while dealing with the cases of narcotics, the approach of the Court should always be dynamic and Court overlook technicalities in the larger interest of the country and the public at large. Court has to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded. Reliance in this context can safely be placed on the case of "Munawar Hussain alias Bobi and 2 others v. The State" (1993 SCM R 785). The same view was reiterated by Supreme Court of Pakistan in the case of "Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar" (PLD 2009 SC 39).
19. The nutshell of the above discussion is that the prosecution has successfully proved the charge against the appellant by leading sufficient and cogent evidence and the learned trial Court has rightly appreciated the same while recording the conviction of appellant under Section 9(c) of The Control of Narcotic Substances Act, 1997, therefore, the Crl. Appeal No,129 of 2011, Cr1. Appeal No,135 of 2011 and Cr1. Appeal No, 139 of 2011 are dismissed.
20. So far as the quantum of sentence is concerned, the Honorable Supreme Court of Pakistan considered death penalty as harsh punishment to the appellants, who are first offenders having no antecedents of any criminal case to their score, therefore, in the light of law laid down by the Hon'ble of Supreme Court of Pakistan in the case titled as "Muhammad Tariq v. The State" reported at (2009 SCM R 1220) and "Ghulam Hussain Shah v. The State", (2011 YLR 2198), the death sentence of appellants-convicts Tahir Mehmood, Mazhar Hussain and Muhammad Shafiq are converted into life imprisonment. Benefit of Section 382-B, Cr.P.C. Is extended in their favour and fine imposed shall continue.
21. Capital Sentence Reference No, 04-N of 2011 sent by the trial Court for confirmation or otherwise of death sentence of appellants-convicts Tahir Mehmood, Mazhar Hussain and Muhammad Shafiq answered in negative.
Sentence reduced.