' This appeal arises out of judgment dated 10-5-1992, passed by the learned IInd Additional Sessions Judge, Karachi West, whereby the appellant was convicted under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the said Order") and sentenced to R.I. For ten years, whipping numbering thirty stripes and a fine of Rs,10,000. In default further R.I. For six months.
2. The facts of the case, briefly stated, are that on 29-11-1990 on receipt of a spy information that some persons going to perform Umrah through Vessel Safma-e-Abid, are about to smuggle narcotics with them, the Field Investigating Officer, Pakistan Narcotics Control Board, Saeed Ahmed Qureshi alongwith the Mashirs-Head Constable, Aftab Ahmed and Police Constable Sardar Ali, reached the spot and intercepted the appellant, who had concealed inside a woollen Gaddah, 1500 grams of heroin powder, which was secured from his possession. The memo. Of recovery of the said heroin powder alongwith other articles namely Passport, National Identity Card, Ticket, woollen bedding and a sum of Rs,100 was prepared in presence of MashiRs, The entire quantity of the heroin was mixed up, five grams were taken out of it as sample and sent to the Chemical Examiner, whose report being in positive, a challan against the appellant and another person Rizwan (absconder) whose name was disclosed by the appellant to the I.O., was presented before the trial Court. They were charged under Article 3/4 of the said Order.
3. The prosecution, to prove the charge, examined two witnesses namely, Saeed Ahmed Qureshi, Field Investigating Officer, Pakistan Narcotics Control Board, Defence Karachi and Aftab Ahmad, Head Constable, Pakistan Narcotics Control Board, Defence Karachi.
4. The appellant was examined under section 342, Cr.P.C. He also examined himself on oath under section 340(2), Cr.P.C.
5. Mr. MA.I. Qarni, learned counsel for the appellant, in the first instance, submits that the appellant was cleared by the Customs Authorities and, according to him, he had boarded the Vessel and as such Pakistan Narcotics Control Board, had no jurisdiction to check the appellant. Both the prosecution witnesses are consistent in their statements that the appellant was apprehended, though cleared from customs, with his luggage on a relli, intending to board the Vessel. The plea is, therefore, devoid of any force and is not supported by any evidence. In any case, the Vessel was that of Pakistan and was standing on its Coast and was, therefore, governed by the law of Pakistan and the Pakistan Narcotics Control Board Authorities had jurisdiction in the matter.
6. The learned counsel next submitted that no private mashir was picked up although there were many passengers boarded or ready to board there. This contention is to be viewed in the present social conditions of our society wherein narcotics, cases members of the public, generally speaking, do not appear as witness for one or the other reason. Besides, in the instant case, the recovery was made at the Wharf where the passengers were ready to board. Furthermore, it has come in the evidence of P.W.2 Aftab Ahmad that P.W.1 Saeed Ahmad, Field Investigating Officer had asked from people present at the spot to act as Mashir.
7. The learned counsel then submits that the prosecution evidence suffers from material contradictions, such as--
(i) P.W.1 the Field Investigating Officer, has stated that he had raided, on receipt of spy information, whereas at another place, in cross-examination he stated that he raided on the instructions of the Director of Pakistan Narcotics Control Board.
(ii) P.W.1 stated that the contraband was recovered from the Gaddah. On the pointation of the appellant Abdul Fateh, he searched his luggage in which one woollen Gaddah was found, inside Gaddah one plastic bag wrapped in a cloth bag was secured whereas P.W.2 stated that the accused was holding woollen Gaddah in his hand which was opened.
(iii) The I.O. At one place stated that one plastic bag wrapped in cloth bag was secured, at another place he stated that plastics long stripes were sewed in cotton then sewed in woollen Gaddah.
8. None of the above contradictions can be said to be material in nature. As regards the first contradiction, as alleged, the fact remains that there was a spy information. As regards the second, the fact is that the heroin powder was recovered from the woollen Gaddah. The Gaddah belonged to the appellant as part of his luggage, whether on relli or in hand is not material. Possibly, it might first be on relli and then in hand or vice verse, as the act in relation to Gaddah is capable of being so performed. As regards the third contradiction, by saying the stripes were sewed, the witness has, in fact, explained the nature of wrapping (vide articles G-I and G-II). In any case, there is consistent evidence that the heroin powder was recovered from the Gaddah of the appellant and that the appellant was carrying the Gaddah with himself.
9. It is also noticeable that the appellant had come from interior of Sindh. There is no allegation of enmity against the witnesses. In the absence of enmity, false implication is ruled out, in the circumstances of the case.
10. The learned counsel lastly submitted that there was a delay of four and a half hours in recording the F.I.R. Perhaps, the learned counsel is not aware that it was not only this case which was searched. At least five cases have come in appeal to this Court and several are pending in the trial Court as per statement made on behalf of the State. There were about 15 persons, whose luggage was found containing narcotics, who were proceeding on visa for Umrah. It will naturally consume time of four and a half hours in clearing the search and reaching back from Keamari to Defence P.N.C.B. Police Station.
11. As a last resort, the learned counsel requests for reduction in sentence. It is not a fit case of reduction in sentence. In similar facts and circumstances I have upheld the conviction and sentences in several appeals viz. Criminal Appeal No,31/K of 1992 and Criminal Appeal No,49/K of 1992, decided by me, wherein the sentence, for recovery of 1,500 grams of heroin powder, was also upheld. Besides, there are a number of cases, decided by a Division Bench, of which. I was a member, in the similar facts and circumstances, wherein the conviction has been upheld and in Criminal Appeal No,20/K of 1992, the sentence was reduced from life imprisonment to ten years' R.I.
For recovery of 1,500 grams of heroin and in Criminal Appeal No,27/K of 1992, the sentence of life imprisonment was reduced to 15 years' R.I. On recovery of 2,500 grams of heroin. As such the request for reduction in sentence is declined.
12. I have gone through the judgment passed by the learned trial Judge. The prosecution evidence and the defence version has been discussed elaborately. It gives cogent reasons for convicting the appellants. The sentence awarded in the case is quite legal and proper and does not call for any interference.
13. For the aforesaid reasons, the appeal is dismissed.