' IBADAT YAR KHAN, J.---Fazal Qadeem the appellant in this case has been convicted by Mr.Zahecr Ahmed Khan, Sessions Judge, Sukkur, vide judgment dated 31-8-1989 on the charge that on 9-2- 1989 12 kilograms of heroin was recovered from the false chambers in the petrol tank of his car while he was coming from Punjab and going to Karachi. He has been sentenced by the learned Judge to suffer imprisonment for life, whipping numbering thirty stripes and to pay fine of Rs,10,000 or in default thereof to further suffer R.I. For six months. The appellant has filed this appeal against his conviction.
2. According to the F.I.R. Lodged in Police Station Mirpur Methalo, District Sukkur Ghulam Rasool, Excise Inspector, Ubauro Circle had received spy information that some narcotic was about to arrive from the north. On this information Ghulam Rasool along with his subordinate staff Abdul Ghani, Hadi Bux and Bashir Ahmad, Excise Sawars and Constables Muhammad Ayub, Jaffar Ali and Ghulam Yasin arranged a nakahandi on Highway at a place near Kammu Shaheed. A car Reg. No, PRL-5523 was seen arriving from Punjab side. It was stopped by this Excise party. After making Hadi Bux and Muhammad Ayub as Mashirs, the person driving the car was brought down from the car and questioned by the police. He disclosed his name as Fazal Qadeem son of Fateh Sher Caste Pathan r/o Village Gulloo Dhahri, Post Office Swabi, District Mardan. His body search was conducted and as a result his national identity card, a cash amount of Rs, 1,220 were recovered from the pocket of his shirt. The police party then conducted the search of the car and from the dash-board of the car a Pakistani Pistol .30 bore with 7 bullets in the magazine and the licence of the pistol in his name were recovered. A registration book of the car showing ownership of the appellant was also recovered from the dash-board. The search did not end here. The inquisitive eyes and the searching fingers of the police officer reached the petrol tank of the car. The tank was removed from the car and brought down on the ground. It was first opened and checked. There were chambers inside the tank. These chambers were stuffed with 12 cloth sacks containing heroin wrapped in khaki envelopes. The heroin in the sacks was taken out and when weighed it was found to be one kilogram in each sack. Ten grams of heroin powder was taken out from each sack for chemical examination and these 12 sample parcels were separately packed in white paper. The recovery memo. Was attested by the mashirs. The remaining heroin was packed separately and put in one sack. The sample packets were packed in one envelope which was sealed before the mashirs and attested by them. As a result of this recovery the accused was arrested on the spot.
The heroin and the other case property including the car, its registration book, spare wheel and the tools as well as a Pakistani pistol and cash amount of Rs,1,220 were taken into possession under a mashirnama. The Inspector drafted a complaint and filed it in the Police Station Mirpur Methalo where an F.I.R. (Ex.8) was recorded at 11.00 P.M. The case was challaned and the accused was put up on trial before the learned Sessions Judge, who framed a charge against the accused under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and as the accused pleaded not guilty and claimed trial the prosecution evidence was recorded.
3. Ghulam Rasool Bhotto, Excise Inspector, Hadi Bux, Excise Sawar and Muhammad Ayub have been examined in this case as prosecution witnesses. Faiz Muhammad, Reader of the Court of 1st Senior Civil Judge, who was working as a record-keeper on 29th of March, 1989 when the car involved in this crime was summoned in the Court was examined as Court-witness.
4. P.W.1 Ghulam Rasool Bhotto has stated in Court that on 9-2-1989 at about 7-30 p.m. He received a spy information that one car of red colour will be coming from Punjab side with a man concealing heroin in it. On this information he arranged a raiding party led by him and consisting of Abdul Ghani, Bashir Ahmad and Hadi Bux, Excise Sawars and Constables Muhammad Ayub, Jafar Ali and Ghulam Yasin. This party went to the National Highway and reached a place Kamu Shaheed where they laid a trap for the car. At about 9.00 P.M. a car of red colour approached the place of trap. The car was coming from Punjab side. The appellant, who disclosed his name as Fazal Oadeem, was the only person occupying the front seat and driving the car. On personal search a cash of Rs,1,220 and a National Identity Card of the accused were recovered from his pocket. A licensed pistol of .30 bore with seven bullets in the magazine and some car papers were recovered from the dash-board of the car. The party suspected and detached the petrol tank of the car with the help of the instruments and brought it on the ground. When it was opened 12 cloth bags containing heroin powder were found concealed in the secret chambers within the petrol tank. The heroin was packed in cloth bags and wrapped in khaki paper. Each hag was found to be one kilogram. Ten grams of heroin was separated from each bag and thus 12 samples were prepared which were duly sealed and attested by the mashirs. The accused was arrested and mashirnama (Ex.7) was prepared on the spot. The accused and the case property were brought to the Excise office and an F.I.R. (Ex.8) on behalf of the State was recorded by this witness. The samples were despatched to the Chemical Examiner on the 2nd or 3rd day of the incident. Thereafter, this witness challaned the accused and sent him up for trial. The report of the Chemical Examiner which is in positive was also tendered in evidence as Ex.9. The witness identified the accused in Court. He also identified the 12 bags of heroin. He also identified other articles including the pistol, bullets, the identity card and the registration book of the car. This witness was cross-examined. For not associating any public witness at the time of recovery he has offered an explanation that he could not associate any public witness at that ,hour of the night because nobody was prepared to come forward and become a witness of recovery.
5. P.W.2 Hadi Bux is Excise Sawar in Ubauro, District Sukkur. He has supported the recovery and corroborated the statement of P.W.1 Ghulam Rasool.
6. P.W.3 Muhammad Ayuh, who is an Excise Constable, has supported the statement made by the above two witnesses and supported recovery of the heroin from the secret chambers in the petrol tank of the car. The common explanation for not associating any member of the public in the recovery proceedings is that no person could be taken along with the party because the time of arrival of the car was uncertain and it was not possible to force anyone to spend the night on the road. Moreover, the people who happened to be present refused to oblige the police party by becoming witnesses of the recovery.
7. An interesting element, which has made the story rather exciting is that when the main witness in the case namely Ghulam Rasool was in the witness-box a request was made by the learned counsel appearing for the accused that the car involved in the case along with the petrol tank should be examined and its petrol tank should also be examined. The tank should also be opened to see whether there were any secret chambers in the tank. On this request Excise Sawar Hadi Bux, who had opened the tank at the time of the search on the Highway, was again called to take off the tank from the car and show the secret chambers. To his surprise he found that the tank now attached to the car was not the same, but was replaced by a new tank covered with plastic. This new tank had no secret chambers. It was an ordinary tank. Who played the mischief and where it was done is anybody's guess. Surely it was such an event that would have created a ripple of suspense in the Court obliging the learned trial Judge to order for examination of C.W. Faiz Muhammad. This Faiz Muhammad happened to be a record-keeper on 29-3-1989, when the car under orders of the Court was deposited by the Excise staff in Court and had remained in Court from the date till the date of its inspection by the Court as stated above.
8. The accused/appellant was examined by the learned trial Judge under section 342, Cr.P.C.
Several questions were put to him. He admitted the event to the extent that he was apprehended on the Highway while travelling in the Car No,PRL-5523 which belongs to him. He, however, denied that any recoveries were made from the tank of his car. His answer to question No,6 is as follows:- "The Excise Inspector had demanded bribe of Rs,10,000 from me, which I had refused and there was exchange of firing between me and the excise police in which I sustained injury on my right leg, the Excise party in order to save their own skin have foisted 12 bags of heroin powder upon me, which they had recovered from one Badshah Khan whom they had let off after accepting money as well as allowing him to take away 18 bags of heroin powder out of 30 bags secured from said Badshah Khan. The remaining 12 bags have been planted on me, due to above dispute. The Excise party had also misappropriated the tape-recorder, Air-conditioner and our brand new tyres of the car which they had illegally and unauthorisedly kept in their possession for over a period of two months. I am innocent."
' The allegation against the Excise staff for removal of valuable accessories like, Tape-Recorder, Air- conditioner and brand new tyres shows that the car was not properly secured during the period it remained with the Excise staff and in the Court compound.
9. Mr.A.Q.Halepota has appeared for the appellant and has advanced very clean argument before us. The learned counsel vehemently argued that if the petrol tank from which recoveries are alleged to have been made does not contain any chamber and is a plain tank, the allegation of recovery from the tank should be rejected. Mr.K.M.Nadeem, learned Assistant Advocate-General on the other hand has contended that the car remained at different places, first with the Excise staff for about over a month from 9-2-1989 and then in the compound of the Court. Any mischief could be played during this period. The mischief could be played only by such party which would like to introduce clement of improbability in the prosecution case. Unfortunately the case property, particularly the tank has not been brought to us and one cannot form any opinion about it, but the fact remains that the possibility of any mischief done at the instance of the accused appellant cannot be ruled out completely. The learned counsel further argued with some force that the F.T.R.
In the case was lodged on 9-2-1989 disclosing that the recovery was made from the secret chambers of the petrol tank but no challenge was made by the appellant to controvert this position. The car and its tank could immediately be examined. The learned counsel has further drawn our attention to the bail application filed by the applicant in the Court, in which he has made the following statement:- "That the present applicant was not within knowledge about the heroin that heroin is in petrol tank of the car (secret concealment).
' That according to F.I.R. Heroin has not been recovered from the possession of the applicant but same has been recovered from the car.'
' The above conduct of the appellant, according to the learned counsel, shows that original tank had the chambers from where the heroin was recovered. The late objection is an afterthought. This gives weight to the possibility that it has been deliberately replaced at the instance of the accused appellant. Moreover, if the prosecuting agency had to make out a false case they could easily say that the incriminating material was recovered from the dikee or from any other part of the car.
There was no occasion of concocting a story that the recovery was from an imaginary tank having secret chambers. Be that as it may, in our opinion, this objection has no merit and would not cast any shadow on the recovery proceedings which have been proved by the three eye-witnesses. The accused has not shown any personal enmity with any police officer to prove that he has been falsely implicated in the case. His plea that the prosecution is malicious because he did not oblige the police by paying illegitimate demand of Rs,10,000 seems to be an effort of a drowning man catching at a straw.
10. We are satisfied that the prosecution has proved its case against the appellant. The appellant has been rightly convicted. We would, therefore, confirm the conviction. Looking to the young age of the appellant we feel that the ends of justice would be served if the sentence of whipping and fine is maintained, but term of life imprisonment is reduced to imprisonment for fifteen years. With this modification in the sentence the appeal is dismissed.
11. Before parting with the case we have to once again express our concern and anguish on the manner the investigation is conducted in these cases. Usually there are only two police witnesses; one Sub-Inspector and the other either a constable or Head Constable to prove the recoveries. In, practically, all the cases the recovery is denied and false implication is pleaded by the accused. If we reject the evidence of the two police witnesses either on account of quality or quantity then a large number of cases a very big percentage indeed would result in acquittals. In all the cases when this meagre evidence is placed in juxtaposition to the plea of the accused that he has been involved as scapegoat for some wealthy owner of the narcotic or on account of some questionable motive, judicial conscience remains disturbed. In quite a number of cases allegations of misconduct have been found to he true. Indeed in several cases of grave misconduct we have made observations against the I.O. Concerned and referred the cases to the Government concerned. Once again we have to point out that techniques of investigation in these cases should be improved. As the punishments are very severe under these laws, it is necessary that the standard of proof should be commensurate to the quantum of punishment. The standard of proof should be up to the mark of the gravity of the charge.
12. The investigation of the cases should be such that it should ensure adequate retribution to the real offender howhigh soever he may be. At the same time there should not be the slightest element of doubt that some innocent person howsoever low in social order he may be, is being hooked up or being harassed as an scapegoat for someone else.
13. If the investigative methods and techniques are improved and brought in line with investigation of similar crimes in other countries and scientific techniques are employed in investigation to prove culpability of the accused it would not only cut down the number of witnesses but would also inspire more confidence in the investigation. Recoveries of heroin and other narcotics should be video filmed on the spot and statements of the accused and other witnesses taped at the time of recoveries. In the result very little scope would be left to the offender to advance a plea of his false involvement or to disown the recoveries.
14. The charges of false involvement and corruption made by the accused should be taken a serious note of and investigated. If found true exemplary deterrent action should be taken against the officials concerned. If charges of false involvement are perused in a few cases and exemplary punishment in addition to dismissal from service is awarded to the delinquent officer it would go a long way in curing the evils that prevail in the present situation. A witness once found to be unworthy or untruthful stands condemned for ever under the Islamic concept of Tazkiatul Shahood, which is now very much a part of our legal system.
15. It should be remembered that the punishment up to life imprisonment in these crimes demands a high degree of efficiency, competency and honesty from the prosecuting agency in performance of their duty. Such heavy punishment could be awarded by the Court without any inhibition or load on its conscience only if the prosecution has placed a foolproof case before it.