' ABDUL RAZZAK A. THAHIM KHAN, J.--- Appellants Luky Okonti and David Ochina have been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 by Mr. S. Ijaz Hussain Gillani, Additional Sessions Judge, Islamabad by separate judgments, dated 12-10-1989 and each of them has been separately sentenced to suffer R.I. For ten years with ten stripes and fine of Rs, ten thousand in default to undergo R.I. For one year more. Both the appellants filed Jail Criminal Appeals Nos. 224/I of 1989 and 193/1 of 1989 through Superintendent, Central Jail Rawalpindi. They have also filed Regular Appeals Nos. 227/1 of 1989 and 228/I of 1989 through their Advocate, Syed Imdad Hussain Kazmi.
2. The incident has taken place in the same transaction and both the appellants were apprehended at the same time while they were coming to Islamabad Hotel. The evidence against both the appellants is common and they also examined one common defence witness Syed Israr Hussain. Therefore, the defence is common. We, therefore, propose to dispose of both these appeals by this single judgment.
3. Briefly the case of prosecution as given in the first information report lodged by Khalid Rashid, Inspector/F.I.O., Joint Narcotic Staff Force, Islamabad on 22-9-1988 at 4-35 p.m. Is that on 22-9- 1988 Major Aurang Zeb Khan, Deputy , Director, Pakistan Narcotics Control Board received a spy information that two foreigners having narcotic would come and stay at Islamabad Hotel. On getting this information, a raiding party consisting of Muhammad Sharif Toor, F.I.O., Muhammad Akram Ranjha, Mubarik Ali Khan, F.I.O. And others reached Islamabad Hotel at 1-30 p.m. At about 3- 30 p.m. There appeared two foreigners who entered the main gate of hotel. They were stopped and on inquiry they disclosed their names as Luky Okonti and David Ochina. Appellant, Luky Okonti was carrying a black hand bag in his right hand which was checked by Khalid Rashid, F.I.O. And found one polythine envelope covered in a white coloured cloth bag containing 1200 grams of heroin from which fifteen grams were taken as sample and put into a sealed parcel. On the personal search, foreign currency and other articles were secured and such Mashirnama (Exh.P.B.) was separately prepared. It is alleged that one David Ochina was carrying a hand bag on his right shoulder. It was checked which contained polythine envelope covered in a white cultured cloth bag in which 1190 grams of heroin wrapped in a Khaki envelope were found, out of which 15 grams were taken and put into a sealed parcel. From his personal search, passport and other articles were also recovered and such Mashirnama was prepared which is Exh.P.A. In case of Criminal No,89/89. The formal first information reports were recorded and after usual investigation both the appellants were sent up for trial separately and have been convicted.
4. Prosecution in support of both the cases examined Khalid Rashid, F.I.O., complainant, Muhammad Sharif Toor, F.I.O., P.W. Abdul Majid, A.S.I., Police Station Aabpara and Muhammad Yousuf, Constable. The statements of both the accused were recorded under section 342, Cr.P.C.
They have not given statements on oath as required under section 340(2), Cr.P.C. But examined one witness, Syed Israr Hussain, in their defence.
5. Khalid Rashid has corroborated the version as given in the first information report. He has stated that Major Aurangzeb Khan, Deputy Director, Narcotics Control Board received secret information on 22-9-1988 that two Foreigners/Negros would smuggle heroin out of the country in a large quantity and would stay at Islamabad Hotel for a night. On his direction, Incharge Sheikh Sharaf- ud-Din, organized a raiding party consisting of Muhammad Sharif Toor, F.I.O., Muhammad Akram Ranjha, Mubarik Ali Khan, F.I.O. And other constables of their staff including him. They reached Islamabad Hotel at 1-30 p.m. He deputed the staff on different places. He, Sheikh Sharaf-ud-Din, Muhammad Sharif Toor and Muhammad Akram Ranjha alongwith informer stood at the main gate of Islamabad Hotel where two foreigners reached at 3-30 p.m. At entry gate. On pointation of the informer they stopped both the foreigners. Appellant, Luky Okonti was holding a black hand bag. He asked him to open the bag from which cloth bag was recovered which contained 'Khaki' envelope and from 'Khaki' envelope 1200 grams of heroin was recovered. 15 grams were taken as sample and put into a sealed parcel. The remaining heroin was also put into a sealed parcel. He has stated that apart from the heroin 485 American dollars of different denomination and Rs,240 of Pakistan currency notes, passport in the name of the accused issued by the Federal Republic of Nigeria and P.I.A. Ticket were also recovered. The memo of heroin (Exh.PA.) was prepared which was attested by Muhammad Sharif and Muhammad Akram Ranjha. The memo. Of currency and other articles was also prepared. He drafted complaint (Exh.P.C.) and sent to the Police Station, Aabpara through Muhammad Sadiq, Constable for registration of case. He has stated in his evidence in crime No,89/89 that appellant, David China was holding a black cultured hag on his right shoulder.
Muhammad Sharif Toor, searched the ,bag. A cloth bag containing a plaything bag in which a 'Khaki' envelope containing heroin was recovered from the bag. The heroin was 1190 grams. He took 15 grams of heroin and put into a sealed parcel. The remaining heroin was also put into a sealed parcel. He has stated that currency notes, wrist watch, P.IA. Ticket and passport were also recovered from the possession of David Ochina. Separate memo was prepared which was attested by him and Muhammad Akram Ranjha. He prepared complaint (Ex.P.C.) and sent to Police Station Aabpara for registration of the case. The accused were arrested by him and separate case was registered. Muhammad Sharif Toor, F.I.O. Has corroborated the version as given by Khalid Rashid and stated that on the direction of Major Aurangzeb Khan, Deputy Director, Pakistan Narcotics Board, a raiding party went to Islamabad Hotel, as he had received secret information that two foreigners would stay in Islamabad Hotel and would take huge quantity of narcotics out of the country. He has stated that two foreigners came at the main entry gate of Islamabad Hotel at 1-30 p.m. They were stopped. Luky Okonti was holding a black bag in his right hand which was searched by Khalid Rashid, F.I.O. And recovered 1200 grams of heroin wrapped in a 'Khaki' envelope. Fifteen grams were separated and put into a sealed parcel while the remaining heroin was also put into a separate sealed parcel. He and Muhammad Akram Ranjha attested the memo. He has stated that foreign currency, passport and ticket were also recovered from Luky Okonti and memo. (Ex.P.B.) was prepared which was attested by him and Muhammad Akram Ranjha. In case against David Ochina, Muhammad Sharif Toor has given the same evidence and stated that two foreigners entered the main gate of Islamabad Hotel at 3-30 p.m. Appellant, David Ochina was carrying a hand bag on his right shoulder. They were stopped. He took the bag and recovered 1190 grams heroin in wrapped 'Khaki' envelope. 15 grams were taken as sample and put into a sealed parcel.
The remaining heroin was separately sealed into a parcel and such memo. Was prepared which was attested by Khalid Rashid and Muhammad Akram Ranjha. He recovered passport, currency notes and ticket from appellant, David Ochina, and memo was prepared which was attested by the same witnesses. He investigated the case and recorded the statements of the witnesses and deposited sealed parcels with Moharrir, Police Station, Aabpara. He arrested the accused and finally submitted challan. P.W. Muhammad Yousaf, Constable in both the cases has stated that on 29-9-1988 he took sealed parcels containing heroin and handed over in the Office of the Chemical Examiner, Rawalpindi. The parcels were handed over by A.S.I. Abdul Majid in both the cases. A.S.I.
Abdul Majid in both the case has stated that on 22-9-1988 he was Moharrir, Police Station Aabpara and on that date he received complaint and two sealed parcels from Muhammad Sharif Toor, F.I.O.
He kept the parcels in safe custody and on 29-9-1988 handed over to Muhammad Yousuf for taking to the Office of the Chemical Examiner and nobody tampered with these parcels in safe custody and on 29-9-1988 handed over to Muhammad Yousuf for taking to the office of the Chemical Examiner and nobody tampered with these parcels till they were in his custody. He recorded formal F.I.R. Of the above case.
6. Appellant, Luky Okonti in his statement under section 342, Cr.P.C. Has denied the allegation and stated that articles 1 to 8 belong to him which were recovered from him on 23rd September, 1988 at Naz Hotel, Rawalpindi. He has stated that no heroin was recovered from his possession and he is innocent. He in his detailed statement has stated as under:- "The case against me is poor and simple fabrication. The members of the Task Force roped me in this case in order to show their efficiency. Secondly, they got illegal gratification from the Sri Lankan from whom the alleged heroin was recovered and let him off. Instead they illegally involved me in this case. Moreover, they snatched foreign currency from me and when I threatened to report the matter to I.-G. Police, they involved me in this case in retaliation. I am innocent. On the day of occurrence, I alongwith David and a Sri Lankan and a Pakistani Christian were taking lunch in the Coffee Corner of Islamabad Hotel, between 12-30 p.m. And 1-00 p.m. At that time, some persons apprehended us who were later on identified as members of the Task Force of Pakistan Narcotics Control Board. All the four of us were handcuffed and no search was made in the Coffee Corner and nothing was recovered from me there. Some of the staff members of Islamabad Hotel, witnessed this incident. From Islamabad Hotel, I along with others was taken to the Aabpara Tourist Camping side. There the Sri Lankan picked up hand bag of grey color. From here Sri Lankan was taken in a separate vehicle and myself and David were taken in other vehicle. In the vehicle in which I and David were present, two members of the Task Force in Uniform and one in plain clothes who was sitting on front seat along with the driver. There was an American also in our vehicle. From the Camping side, we were taken to the U.S. Drug Enforcement Centre. In the way the person in plain clothes sitting on front seat, showed, me a grey cultured bag and told us that it has two and a half kilograms of heroin. He asked us to own it, otherwise we would be hanged. We were interrogated. From there we were taken to Pakistan Narcotics Control Board."
' The appellant was specifically put question whether he. Would appear to give statement on oath to disprove the charge to which he replied in negative. He has examined Syed Israr Hussain, son of Gulzar Hussain, Banquet Manager, Islamabad Hotel in his defence.
7. Appellant, David Ochina in his statement under section 342, Cr.P.C. Has also denied the allegation and stated that he was not carrying bag which contained heroin but stated that articles 1 to 6 mentioned in recovery (Exh.P.A.) belong to him and recovered from his possession from Room No,12 of Naz Hotel, Rawalpindi. He has stated that case has been fabricated in order to establish the performance for detecting heroin and snatched the foreign currency from him as he threatened police to report the matter to I.-G. Police. He has been falsely roped in this heroin case. He in his detailed statement under section 342, Cr.P.C. Has stated as under:-- "I am innocent. In fact I was taking lunch in the Coffee Corner of Islamabad Hotel on 22nd September, 1988 between 12-30 p.m. And 1-00 p.m. Along with Luky Okonti, a Sri Lankan and a Pakistani Christian. All of a sudden some people who later on identified themselves as members of the Task Force of Narcotics Control Board entered the Coffee Corner and apprehended all the four of us. No search was made there and nothing was recovered from me. From there we were taken to the Tourist Camp side Aabpara. Where from the Sri Lankan picked up a grey cultured bag. From here he was taken in a separate vehicle and we two i,e, myself and Luky Okonti were taken in a separate vehicle. In this vehicle there were two persons of Task Force in uniform and one in plain clothes, who was sitting on the front seat. There was also an American in this vehicle. From here they were taken to the U.S. Drug Enforcement Centre. In the way, the person in plain clothes sitting beside the driver on the front seat, showed me the grey coloured bag, which was picked up by a Sri Lankan from Trourist Camp side. I was ordered to own it. Otherwise I was threatened to be hanged.
At the U.S. Drug Enforcement Centre, I was searched and nothing was recovered from me. From there I was taken to the Pakistan Narcotics Control Investigating Centre where I was interrogated. I am innocent and have nothing to do either with the bag or with heroin."
' He was asked to give statement on oath but he replied in negative.
8. Defence witness, Syed Israr Hussain has stated that he was on duty in Islamabad Hotel on 22-9- 1988 and he saw both the accused in the restaurant. It was 12-30 p.m. He has stated in case of Luky that he saw both the accused present and it was 12-30 p.m. And some persons were sitting in restaurant around the accused. At that time 3/4 persons entered the restaurant and apprehended the accused and took them away in his presence and they were not interrogated. In case of David Ochina he has stated that he saw the present accused in his hotel on that date alongwith his companion. His companion and others were taking meals in their restaurant and it was about 12- 30 p.m. He has stated that around the accused some other people were sitting who were not known to him. At that time 3/4 persons entered the restaurant and apprehended the accused and took them away. The accused was not interrogated in his presence.
9. We have heard Malik Rabnawaz Noon on behalf of Syed Imdad Hussain Kazmi who did not appear on various dates of hearing. Malik Rabnawaz Noon, submitted that no independent Mashir was cited in the present case and evidence of these officers of Narcotics Control Board is not convincing. He has argued that evidence of defence witness, Syed Israr Hussain, is natural.
Therefore, prosecution has failed to prove the case. Mr. Javed Sindhu, counsel for the State submitted that case has been proved and evidence of Syed Israr Hussain, Bunquet Manager is afterthought and not believable as he has not made any application or report to his manager about such incident in the hotel. Malik Rabnawaz Noon, in the alternate submitted that lenient view also be taken as both the appellants are students and sentences are severe.
10. The evidence against both the appellants consists of ocular testimony of Muhammad Sharif Toor, Inspector, F.I.O., Narcotics Control Board and Khalid Rashid, F.I.O., P.N.C.B., They both have supported the prosecution and stated that 1200 grams and 1190 grams of heroin was secured from each of the accused. In cross-examination, the case of defence is that heroin was recovered from one Sri Lankan and foisted on appellants because police had recovered foreign currency in Dollars from the accused and appellants threatened to complain against them. In the cross-examination, it has been suggested that appellants along with Sri Lankan and a Pakistani Christian were taking lunch at Islamabad Hotel and were apprehended and false case was filed. This suggestion has been denied by the witnesses. Appellant, David Ochina, in his statement has stated that he was taking lunch in Coffee Corner of Islamabad Hotel on 22nd September, 1988 between 12-30 p.m. And 1-00 p.m. Alongwith Luky Okonti, a Sri Lankan and a Pakistani Christian and they were apprehended and nothing was recovered. They were taken towards Tourist Camp side Aabpara from where Sri Lankan picked up a grey cultured bag from which one bag was taken and they were asked to own it. On his refusal, the case was filed. Appellant, Luky Okonti has taken the same stand and further stated that one person showed him a grey cultured bag and told that it contained 2-1/2 Kg. Of heroin and asked to own it otherwise they would be hanged. According to prosecution, appellants were apprehended at the entrance of the Islamabad Hotel while defence is that 4 persons were taking meals in the Coffee Corner from where they were arrested. The evidence of defence witness, Syed Israr Hussain, in case of David Ochina, is that appellant and his companion and others were taking meals in restaurant. There appeared 3/4 persons and apprehended the accused and took them away. In case of Luky Okonti, he has stated that on the day of incident some persons were sitting around the accused and at that time 3/4 persons entered and apprehended the accused and they were not interrogated. He has not stated in his evidence that appellants were taking meals, whereas the case of appellant is that one Sri Lankan and a Pakistani Christian were also taking meals with them. He has not stated that except appellants any other person was apprehended. According to accused Sri Lankan was also apprehended. There is nothing on the record to show that Syed Israr Hussain made any complaint to the Manager of Islamabad Hotel about such incident and arrest of the accused. He has suddenly appeared in defence as application was made on 24th October, 1989 by Mr. Fazal H. Chaudhary, Advocate. The name of Syed Israr Hussain was neither suggested in the cross-examination specifically but one appellant has stated that some staff members were present. In the restaurant, the natural witnesses could be the bearers who serve the meals. The defence has not examined a single person from those bearers to show that appellants actually were arrested from the Coffee House. Syed Israr Hussain, Banquet Manager, has not given the name of any bearer who was serving the meals to the appellants and in cross-examination he could not remember the dates of various functions. His name first appeared in the application after lapse of one year that in his presence appellants were arrested from the Coffee House. They were not known to him. The evidence of Syed Israr Hussain is that he was on duty on that day but it has not been corroborated by any circumstance. The Manager has not been examined. The hearers have not been cited as witnesses. With great regret, we are not inclined to accept the evidence of Syed Israr Hussain, Banquet Manager who is not supposed to remember, after one year, the clients who came and took the meals in the Coffee House. The other plea taken by the appellant is unnatural that Sri Lankan was involved the police after taking money from him released him cannot be believed when separate Mashirnamas were prepared and foreign currency recovered from the appellants were prepared. The other contention of the learned counsel that no private Mashir was examined. In these cases, it has been observed that private persons do not come forward to give evidence or when they are cited as witnesses they resile under the influence and do not support. It is apparent that even Syed Israr Hussain, an employee of the Islamabad Hotel has come forward after lapse of one year to defend the accused of such heinous offence and was silent for one year and appellants did not disclose his name and even at the cost of reputation of Islamabad Hotel at stake. In these circumstances how one can expect that private person would come to give evidence against such persons. The arrest of the accused has not been denied by defence. We have no reason to discard the evidence of the two prosecution witnesses which is corroborated by the report of the Chemical Examiner when no enmity has been shown with prosecution witnesses. We are, therefore, of the view that prosecution has proved the case and both the appeals are dismissed. The sentences are not severe and appellants have not pressed that they are students. We have no reason to reduce the sentence.
11. Issue notice to Syed Israr Hussain, Banquet Manager, Islamabad Hotel, Islamabad to show cause why he should not be prosecuted for false evidence and destroying the evidence.
12. Consequently, we dismiss both the appeals of David Ochina and Luky Okonti and maintain their convictions and sentences.