' ABDUL RAZZAK A. THAHIM, J.---Appellant, Siraj has been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 by Sessions Judge, Attock and on each count he has been sentenced to undergo R.I. For fifteen years with twenty stripes and a fine of Rs, fifteen thousand, in default to suffer R.I. For three years more vide judgment, dated 31st January, 1990.
Appellant was given notice for enhancement of sentence.
2. Briefly the facts are that on 22-4-1989 at 10.00 a.m. a Land-rover No, 2053-PRH was intercepted by S.H.O., Police Station, Attock Khurd at check post. It was being driven by appellant, Siraj. It is in the first information report that from the search of the vehicle 96 kilograms of heroin was recovered and such case under Articles 3 and 4 of the Prohibition Order was registered. After usual investigation, the appellant was sent for trial.
3. P.W.I Amirzada, has stated that on 22-4-1989 he was Additional Moharrir, Police Station Attock Khurd and on receipt of complaint (Exh.P.A.) he drafted the F.I.R. (Exh.PA.). He was not cross- examined. P.W.2 Navid Iqbal, has stated that on 4-5-1989 he was handed over sealed sample parcel of the case which he took to the office of the Chemical Examiner, Rawalpindi on the same day. He has stated that parcel was handed over to him by Muhammad Bashir, Moharrir/A.S.I. P.W.3 Muhammad Bashir, ASI has stated that on 22-4-1989 he was posted at Police Station Attock Khurd.
At about 10.00 a.m. He alongwith Muhammad Rashid, Si Ahmad Khan, Head Constable and other staff was present at Check Post Attock Khurd. There appeared one Land-rover No, 2053- PRH which was being driven by the appellant, Siraj. The vehicle was stopped and checked. It was found that vehicle had double floor, which was broken with hammer and chisel (Chhaini). There was a secret chamber underneath from which 96 packets of white cloth bags containing heroin were recovered.
Every packet was of one kilogram heroin. Total weight was 96 Kg. Out of which one gram from each packet was separated and parcel was prepared. The remaining parcels were also put into sealed parcel. Such memos. (Exh.P.1. And Exh.P.2) were prepared which he attested and it was sealed. The registration book (Exh.P.3), open transfer letter (Exh.P.4), photostat copy of Identity Card in the name of one Akhtar Niaz Khan (Exh.P.5) and vehicle (Exh.P.6) alongwith key (Exh.P.7) were taken into possession and memo (Exh.P.B.) was prepared which he attested. On the personal search of the accused an amount of Rs,300 was also recovered and such memo was prepared. He has stated that on the same day, Muhammad Rashid delivered three sealed parcels containing heroin and other property including vehicle for safe custody in the Malkhana and onward transmission to the office of the Chemical Examiner.On 4-5-1989 he handed over the parcel intact to Navid Iqbal, Constable for taking to the office of the Chemical Examiner, Rawalpindi. In the cross-examination, he has stated that the vehicle was registered in the name of Shahid Mehmood, ETO who had transferred to the name of one Usman Ali Khan as there was an open transfer letter available in the vehicle. P.W.4 Muhammad Rashid, S.I..Has stated that on 22-4-1989 he was posted at Police Station Attock Khurd. He along with Mian Gul, Muhammad Rafiq, Akhtar Nawaz and others was present at the Police Check Post. He received information that vehicle No, 2053-PRH carrying heavy quantity of heroin was coming from Peshawar side. He summoned Muhammad Bashir, A.S.I. And other constables from Police Station for `Nakabandi'. At about 10-00 a.m. There came Land-rover No,2053-PRH from Peshawar side. It was driven by one Siraj. It was stopped and he personally checked the vehicle and found that floor had double size layer. He pulled apart a cover or lid welded with the iron sheet on the floor. He has stated that in white cloth bags some things were exposed and lid was removed. An iron plate of the dicky, on the rear, was also removed. The cloth bags could not be taken out of the opening in the centre and the same were, therefore, brought out through the opening on the back. In all 96 cloth bags containing heroin were recovered. Each bag was one kilogram. Thus the total weight of heroin was 96 kilograms. One gram from each bag was separated and sample parcel of 96 grams of heroin was prepared and sealed. He has stated that memos were prepared. On search of vehicle, registration book, open transfer letter, photostat copy of Identity Card of Akhtar Niaz Khan were recovered vide memo (Exh.P.B.). The vehicle, key and other articles were also taken into possession. On the personal search, he recovered Rs,300 from appellant and prepared memo. He drafted complaint and sent to the Police Station through Arshad Mehmood, Constable. He recorded the statements of the witnesses. The case property was entrusted to A.S.I. Muhammad Bashir who also attested the memos. On completion of investigation he challaned the accused.
4. Appellant, in his statement under section 342, Cr.P.C. Has denied the allegation and has stated that he was not driving the vehicle but was only present on the rear of the vehicle. He has further stated that he was not a driver but had taken a lift in the vehicle from Peshawar for going to Gujrat where he worked as a labourer. He stated that at that time the vehicle was being driven by Akhtar Niaz and Usman Ali Khan was also sitting on the front seat and at the check post narcotics staff allowed Akhtar Niaz Khan and Usman Ali Khan to escape from the scene and he was hauled up by the police. In his statement under section 340, Cr.P.C. He has stated that he was not involved in putting or keeping the heroin in the secret chambers of the vehicle nor was aware of it and he also stated in detailed statement under section 342, Cr.P.C. That he is not a driver. In cross-examination he stated that witnesses have no enmity with him.
5. We have heard Mr.Afridi Khan, counsel for the appellant. It is argued that appellant had only taken the lift and he was not involved in heroin. It is submitted that actual culprits were allowed to go and appellant was involved falsely. It is argued in alternate by the learned counsel that appellant is a first offender and in these circumstances his sentences may not be enhanced. He has referred to a case in Muhammad Rafique v. State reported in 1990 SCMR 602. Mr. Javed Aziz Sindhu, counsel for the State has supported the conviction and submitted that case for enhancement has been made out.
6. There are some points which are not denied by the appellant. He has stated that he was travelling as a passenger. It is an admitted position that Land-rover was stopped at the check post and Land-rover was searched but appellant's case is that two persons, Akhtar Niaz Khan and Usman All Khan were allowed to go and appellant was falsely involved in this case. Appellant has no enmity with prosecution witnesses. The witnesses have categorically stated that appellant only was driving the Land-rover. The appellant in crose-examination has stated that both the witnesses have no enmity with him. It is proved beyond any doubt that 96 kilo grams of heroin was recovered from the bottom of the Land-rover which was being driven by the appellant. It is only to be seen whether the plea taken by the appellant that he had taken lift and has been falsely involved in this case is acceptable. Appellant in his statement under section 342 Cr.P.C. Has stated that at the check post the narcotics staff allowed Akhtar Niaz Khan and Usman Ali Khan escape from the scene cannot be believed. It is stated that immediately after the incident Akhtar Niaz Khan and Usman Ali Khan were made to escape from the place of Wardat. There is nothing on the record that Akhtar Niaz Khan and Usman Ali Khan were travelling in the land-rover. These questions have been put to P.W.4 Muhammad Rashid only whereas first witness, Muhammad Bashir I whose cross- examination was completed on 7-1-1990 was not put these questions. There is complete denial from the prosecution witnesses that anybody else was 1111 travelling in the land-rover. The other contention of the appellant that he was not driving the land-rover and driving licence was not secured cannot be accepted as the persons who are dealing with this business are vigilant and do not carry these documents so as to bring evidence against them. The learned trial Court has also dealt with this aspect in detail. From the personal search of the appellant even Identity Card of appellant was not recovered. This has been done deliberately otherwise at least he could have been in possession of the Identily Card so that the point of the driving licence could have been taken into consideration. The Investigating Agency came to know about the ownership of the land- rover but unfortunately those persons were not joined in the investigation. This case should be dealt with independently. There is simple evidence against the appellant that he was transporting and possessing huge quantity of herion, which was available in the land-rover which he was driving. The learned counsel has tried to argue that statements of the witnesses were not recorded on oath. There may be error but on this account the evidence of these persons cannot be discarded. He has on the other hand submitted that statement of appellant was also recorded on solemn affirmation but if he insisted the Court to record it on oath it could be C done. When statements of witnesses were recorded on solemn affirmation he could have made such a request to the Court for recording their statements on oath but no such a request was made. He has simply stated that it was the duty of the Court. The report of the Chemical Examiner is in positive.
7. For the reasons stated above, we are of the view that appellant has D rightly been convicted and as such appeal is dismissed. The benefit of section 382-B, Cr.P.C. Shall remain intact.
8. On the point of suo motu notice for enhancement of sentence, the learned counsel has referred to the case of Muhammad Rafique v. State reported in 1990 SCM R 602. The facts of that case are different but Shariat Appellate Bench maintained the sentence awarded by the trial Court. The appellant was not owner of vehicle and also there was no evidence that he was previous convict.
We are not inclined to enhance the sentence, therefore, suo motu notice for enhancement of sentence is vacated.
9. Consequently, the appellant has to undergo conviction already awarded by the trial Court. By this single judgment, we have disposed of appeal as well as Suo Motu revision.