1. ' MUHAMMAD AFZAL ZULLAH, J.--This appeal by right is directed against the judgment dated 12-4- 1988 of the Federal Shariat Court; whereby the conviction of the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 was upheld. And further in exercise of its revisional jurisdiction the sentence awarded to him by the trial Court i,e. 7 years' rigorous imprisonment with a fine of Rs,10,000 (in lieu thereof one year R.I.) as also 10 stripes, was enhanced to life imprisonment as also fine of Rs,1,00,000 (one lac) (in default 4 years' R.I.) and 20 stripes.
2. ' The brief facts as noticed by Federal Shariat Court arc that the house of the appellant which is situated in a village in District Lahore was searched on the morning of 27th .September, 1985, on the receipt of intelligence that a large quantity of heroin was lying therein. He was not present in the house, nor it is shown that there were any inmates at the time of the search. The raiding party consisted of Captain Raees Ahmed Khan P.W. Of,, the Sutlej Rangers, some Constables, Ghulam Rasool Vice-Chairman of the Local Council and one Chhote Khan, a co-villager of the appellant.
3. The last mentioned two persons could be treated as independent witnesses of the search. As there was nobody available in the haveli of the appellant, consisting of two rooms and a walled courtyard, a search notice was prepared in the presence of the said persons and was pasted on wall of the house. The door of one of the rooms was open while the door of the other room was locked. After the needful procedural process the lock was broken open. The raiding party found the following inside the room:- "(i) Three Torey (3 bags) one Gathry (URDU TEXT) containing 60 Guthes (60 packets) containing heroin weighing 60 kilograms worth (approximate) Rs,48,00,000.
(ii) Rifle G.P.I 1949 NOMK3 worth Rs,2,500.
(iii) Carbine Desi made worth Rs,500.
(iv) Rounds .303, five in number, worth Rs,50.
(v) Rounds carbine six in number, worth Rs,60."
4. ' Samples were duly taken there and then, for chemical analysis. The articles having been taken into possession were sent to the relevant Ware House. Case was registered through an F.I.R. At the local Police Station at the instance of Captain Raees Ahmed Khan.
5. ' The appellant was neither present at his house at the time of search nor did he appear before the police for a week or so. Ultimately after having been arrested and challaned he was tried for the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. At the trial the prosecution case was supported by said Captain Races Ahmcd Khan, Ghulam Hussain Foot Constable, Bashir Ahmed Foot Constable/Driver. Chhote Khan the aforementioned independent witness of recovery was examined but he did not support the prosecution case and was cross- examined as an hostile witness but without any tangible results. The other witnesses are formal including the police investigating officer.
6. ' It is essential to be noticed here, that Ghulam Rasul another independent witness was given up by the prosecution on the apprehension that he also would not support the prosecution case. The appellant in his statement under section 342, Cr.P.C. Denied the recovery and stated that Sutlej Rangers had planted heroin and illicit arms in order to earn credit for hauling such a big quantity of heroin, some arms and ammunition. He had declined to make a statement as required under section 340(2), Cr.P.C. However, he produced two defence witnesses; namely Noor Muhammad and Karam Din who deposed about his good character and also stated that in their presence nothing was recovered from his house. The defence evidence is thus of general character and is not of much help to the appellant in so far as the specific allegation of the disputed recovery from locked room of his haveli is concerned. The trial Court believing the official witnesses of recovery found the appellant guilty and convicted him with the award of sentence as already noticed.
7. ' After filing of his appeal a notice was issued in the revisional jurisdiction of the Federal Shariat Court to enhance the sentence, on account of the huge amount of heroin involved in the case.
8. ' The learned appellate Court noticed the following arguments addressed before it by the learned counsel appearing for the appellant:- "That there is no corroboration about the place of recovery. The recovery memo itself shows that the recovery was made from a house other than the house of the accused. In this behalf it has been further contended that the house of the accused is surrounded by other houses and no inhabitant of those houses has been produced. Chhote Khan (P.W.-4) has not supported the prosecution and has been declared hostile and the other recovery witness shown in the memo of recovery namely Ghulam Rasool has not been produced."
9. ' The learned Judges of the Federal Shariat Court did rely on testimony of the Foot Constables who accompanied Captain Raees Ahmad to the house of the appellant. But, that by itself, when the independent recovery witnesses have not supported the prosecution, might not have been treated as dependable evidence for convicting the appellant on such a serious charge as is involved in this case. However, they placed explicit reliance on the testimony of Captain Raees Ahmed Khan P.W.
10. Who had arranged the raid and had also prepared the recovery memo, which admittedly was thumb-marked by Chhote Khan, the hostile witness. This witness from his testimony could not be treated as independent witness. His deposition shows clearly that he wholly alligned with the accused. However, it is in his cross-examination that the raiding party had come to the village in connecton with this case. Beyond that he has shown his ignorance as to what happened in the house of the appellant. It is not his case that when the house was searched, he was present and that nothing was recovered. In the circumstances of this case, therefore, the testimony of Captain Raees Ahmed Khan P.W. Gets support from the statement of hostile P.W.4 Chhote Khan, also. The learned Judges while accepting the statement of Captain Raees Ahmed as truthful relied on 'Muhammad Khan v. Dost Muhammad and 17 others' (PLD 1975 SC 607 at 621).
11. ' Learned counsel for the appellant has reiterated same arguments which were advanced before the High Court and has also raised some technical objections including the one that the appellant's haveli/house was also occupied by the inmates of his family, therefore, he alone could not be held responsible for the possession of heroin. He obliquely suggested that someone else might also have used the haveli for storing the heroin. Lastly, learned counsel stated that it was not a fit case for enhancement of sentence by the Federal Shariat Court in exercise of its revisional jurisdiction as in the circumstances of the case the appellant had adequately been punished by the learned trial Court.
12. Regarding the recovery, suffice it to say that the deposition of Captain Raes Ahmed Khan P.W.1 can safely be depended upon as he is not only a responsible officer; but has also demonstrated his impartiality by admitting, under cross-examination, certain circumstances which he knew would definitely go in favour of the appellant. Thus, it would also be safe to assume that he made an honest statement. The. Admission is to the effect that the appellant was' not a smuggler nor the heroin belonged to him. What he saw was that "it was lying in his house at the time of recovery'.
13. Earlier he also admitted that the appellant had voluntarily appeared before him at the Sutlej Rangers Headquarter. In cases like the present one if the raiding officer wants to take credit of such a big haul of narcotics, instances are not lacking when the accused is shown to have been arrested after a considerable struggle/effort or at least a hot chase. The officer in this case did not try to take this undue advantage. It must have also been clear to him that in case he admits that the appellant was neither smuggler nor the owner of the stuff, this might benefit the accused/appellant in so far as the sentence is concerned. Nevertheless he made the candid admissions. Keeping in view all the circumstances of the case, in our view, the finding of fact by the Federal Shariat Court that the recovery was made from the locked room in the house of the appellant by the raiding party, is unexceptionable. The two technical points seriously urged -- one, relating to the responsibility of the appellant being head of the family and other occupants of the house in question; and the other somewhat conflicting plea, that some smuggler might have kept the heroin in the house of the appellant, have also no force. Firstly; no ground was prepared fact- wise, at the trial for urging these pleas. Secondly, the statement of the accused under section 342, Cr.P.C. Also shows that these pleas are afterthought. According to him the recovery had not taken place from the room of his house but "from crops in the fields" and further that "in order to show Karwai (URDU TEXT) the Rangers falsely planted the recovery on him". The stand taken in the arguments of the appellant's learned counsel and the plea raised in his statement under section 342, Cr.P.C. Cannot stand together. As already held, the recovery was made from the room of his house after breaking open the lock of its door. There is no indication in cross-examination either that the haveli was lying vacant so as to afford opportunity to smugglers in general to use it at their will and/or that someone other than the appellant could have been responsible for placing the heroin in the room concerned. Accordingly in so far as the findings of fact and the verdict of guilty is concerned, agreeing with the learned two Courts below, we affirm the same.
14. ' On the question of sentence we devoted our anxious consideration to the peculiar features.
15. Learned Judges of the Federal Shariat Court were right in observing that a case like the present one would justify a severe sentence. They are also right that "the heroin has become a menace for the society". But this and other considerations were not at all ignored by the learned trial Judge. He, keeping in view the circumstances of this case, awarded somewhat heavy sentence of 7 years' R.I.
16. And a fine of Rs,10,000 together with 10 lashes (stripes). It appears that the learned Judges of the Federal Shariat Court took note of one aspect of the case only in matter of sentence and failed to notice the extenuating circumstances found in the admissions of Captain Races Ahmed Khan a star prosecution witness. We have already noticed them. The witness has been allowed due benefit in this behalf, on the question of credibility. The admissions in so far as they go in favour of the appellant were, it appears, kept in view by the trial Court but ignored by the Federal Shariat Court.
17. Moreover, the highest punishment of imprisonment for life, if is awarded to a person who is neither owner, smuggler nor a carrier but only is found in possession of the narcotics, what higher punishment would be reserved for a carrier, owner and still higher (or highest) for a racketeer/smuggler. In the present case, this aspect also, it seems, was not kept in view by the Federal Shariat Court.
18. In the light of the foregoing discussion, we partly allow this appeal and while maintaining the conviction of the appellant for the charge; namely, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, set aside the enhanced sentences awarded by the Federal Shariat Court in its revisional jurisdiction and instead restore those awarded by the trial Court. This restoration would also include the benefit given by the said Court to the appellant under section 382-B of the Cr.P.C.