' IJAZ AHMAD CHAUDHARY, J.--- We intend to dispose of Criminal Appeal No,486 of 1997 filed by Zaheer Ahmad appellant and a Reference for confirmation of death sentence submitted to this Court under section. 374, Cr.P.C. By the learned Special Judge, Anti-Narcotics Lahore. The appeal and the reference have arisen out of the judgment passed on 3-7-1997 by the learned Special Judge, Anti-Narcotics Lahore, by which Zaheer Ahmad appellant has been convicted under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of the Control of Narcotic Substances Ordinance, 1995 and sentenced to death subject to its confirmation by this Court.
2. This judgment has been passed in case F.I.R. No,35 registered on 12-10-1995 at Police Station ANF, Lahore on the complaint of Muhammad Jamshed Cheema Group Leader/Investigating Officer P.W.4 who has stated that on 12-10-1995 Col. Muhammad Younas, Deputy Director, ANF, Lahore received a secret information that two persons namely Muhammad Salim and Zaheer Ahmad appellant were going to Karachi by Air Flight No,E.4-125, Aero Asia at 12-15 p.m. From Lahore Airport while carrying heroin in their luggage. A raiding party was constituted consisting of Syed Hassan Ijaz Kazmi, Deputy Director, Ikram Ullah Bundial FIO, Subedar Aziz Ullah and Muhammad Bashir, Hawaldars, Sher Zaman and, Muhammad Sarwar, Lance Naik Zafar Iqbal and rorahim alongwith Muhammad Jamshed Cheema complainant all employees of ANF and under the supervision of Col. Muhammad Younas they reached Lahore Airport and met there Hafeez Ahmad S.I./ASF and Muhammad Iqbal, Shift Incharge Aero Asia. The raiding party apprehended Salim and Zaheer appellant in the Airport Lounge and asked them about their luggage. They disclosed that their luggage was deposited with the Airport Authorities. The complainant alongwith the raiding party took Zaheer appellant and Salim co-accused (now deceased) alongwith other Airport officials to segregate block where both the accused pointed out and pocked up their luggage which was consisting of Attache case and a hand bag and both the accused Zaheer and Salim brought out the heroin weighting 2 Kgs. From the Attache case of gray colour belonging to the appellant and Salim co-accused. 10 grams of heroin out of the total recovered heroin was separately made into sealed parcels. The remaining heroin was separately made into another sealed parcel. The parcels were taken into possession vide memo. Exh.P.C. At the same time Passport, Ticket and watches etc., recovered from the accused were also taken into possession vide recovery memo. Exhs.P.A and P.B.
Attache case was also, taken into possession vide recovery memo. Exh.P.D. Complaint drafted by Muhammad Jamshed Cheema P.W.4, Group Leader is Exh.P.E which was sent to the Police Station through Arif Constable for formal registration of the case and the F.I.R. Exh.P.F. Was recorded on the same date i,e, 12-10-1995 at 1-35 a.m. The parcels were handed over to the Moharrir and the parcel of 10 grams heroin was sent to the office of Chemical Examiner. The statements of the witnesses were recorded by P.W.4 Muhammad Jamshed Cheema, Group Leader and the accused were also produced before the Judicial Magistrate for the recording of their statements under section 164, Cr.P.C. In which both the accused including the appellant admitted the recovery of 2 Kgs.Heroin from their luggage. Alt/. The completion of the investigation the challan was submitted in the Court of learned Special Judge who framed the charges which were denied by the accused persons and they claimed to be tried. The prosecution in order to prove the guilt of the accused produced P.W.1 Muhammad Sarwar, Moharrir who kept the parcels in safe custody in the Malkhana and on 15-10- 1995 handed over the same to Abdul Ghafoor, Constable P.W.2 for onward transmission to the office of the Chemical Examiner, Lahore for chemical analysis. P.W.2 Abdul Ghafoor has supported the above said facts while appearing in the trial Court. P.W.3 Ikram Ullah Bundial, FIO, ANF, has supported the story narrated above in the complaint got lodged by P.W.4 and has attested the recovery memo. By which 2 Kgs. Of heroin was taken into possession from the Attache case pointed out by.The appellant and Salim co-accused and has also supported the story narrated in the complaint in toto. P.W.4 Muhammad Jamshed Cheema, is the complainant and also the Investigating Officer in this case. Then the prosecution evidence was closed en the statement of the Prosecutor.
3. During the pendency of the trial Muhammad Salim accused before the recording of statement under section' 342, Cr.P.C. Died in Jail on 20-7-1997 hence only the trial of appellant was concluded and when he was put the evidence while recording his statement under section 342, Cr.P.C. He denied the allegations. He also denied the allegation of recovery of 2 Kgs. Heroin from him and his co-accused. However, he admitted his presence at the Airport and apprehension alongwith Muhammad Salim co-accused. For facility of reference, the relevant questions put to the appellant and their answers are reproduced as under:- "Q.No,4. Is it a fact that on 12-10-1995 at about 1-30 a.m. At Lahore Airport you were found transporting heroin P.8 without the permission of the Government which you have concealed in your Attache case Exh.P.D? What do you say about it?
Ans. It is incorrect. On 12-10-1995 I was going to Karachi. By Aero Asia Flight on the call of my married sister living there who managed for my Visa to Middle East country through one of her neighbourer who was going back in a day or so. Q.No,9. Why this case against you and why the P.Ws. Have deposed against you?
Ans. The alleged heroin was planted upon me. The fact is that the ANF Police took the heroin in their custody from inside the Airport and when they were taking the same along with co-accused Muhammad Salim (deceased) out of Airport, on my inquiry from my co-accused about his going with the ANF Police, I was also involved in this case falsely. The persons who were carrying the said heroin out of country, ran away from the spot and in order to show the efficiency by ANF Police, the alleged heroin was planted upon me. All the P.Ws. Cited in this case are police witnesses and they have deposed against me being the employee of ANF Police in order to support their superiors."
' He also admitted the recovery of articles mentioned in Exh.P.B. However, neither he has appeared in his defence under section 340(2), Cr.P.C. Nor he has produced any defence evidence. After hearing the arguments of both the parties the impugned judgment has been passed.
4. Learned counsel for the appellant contends that admittedly no Boarding Card was recovered from the possession of the petitioner at the time of his arrest, which casts serious doubt in the prosecution case. It is further contended that P.W.4 is the complainant and is also the- Investigating Officer. It is further contended that the complainant was not competent to investigate the case and as such the investigation is tainted with mala fide and the whole story has become doubtful. It is further contended that the prosecution has failed to prove the guilt of the appellant and the statements of the witnesses are not consistent with each other and are contradictory on material points. He further contends that the evidence is not sufficient to connect the appellant with the commission of the crime. However, lastly he has frankly conceded that from the evidence, on the part of the prosecution no animus or grudge is proved on record to falsely implicate the appellant but contends that the sentence passed to the appellant is too harsh as the quantity of narcotics recovered was much below 10 Kgs. And the sentence passed does not commensurate with, the offence committed by the appellant hence prays for the reduction of the sentence alternatively.
5. On the other hand learned counsel appearing on behalf of the State has opposed this appeal and prays for the confirmation of the death sentence on the ground that the image of the nation and the country is being tarnished in .The eyes of comity of other nations, besides young generation is getting an addicted to narcotics, the Court should not take lenient view when the sufficient evidence has been produced by the prosecution to prove the guilt of the accused in such a case.
6. We have heard the learned counsel for the parties and have also perused the record carefully.
The contention raised by the learned counsel for the appellant is that P.W.4 Muhammad Jamshed Cheema is a complainant and he could not investigate the case. This plea is devoid of force as he is fully competent to investigate the case by virtue of the powers conferred upon him under the control of Narcotic and Substances Act and the learned counsel for the appellant has Tailed to point out any prejudice which has been caused to him due to the investigation by P.W.
4. Admittedly none of the witnesses who are employees of the ANF have any enmity or grudge against the appellant or his co-accused Salim to falsely implicate them in this case. We have noticed that P.W.3 Ikram Ullah Bundail, FIO the recovery witness who has fully supported the prosecution on each and every point was subjected to lengty cross-examination but nothing could be gained by the defence from .Him during the cross-examination. Similarly P.W.4 Muhammad Jamshed Cheema was also subjected to lengthy cross-examination. The defence has failed to point out any reason for the false implication of the appellant and his co-accused in this case. The accused even has not suggested any enmity or reason for their false implication by both the witnesses in such a lenious case otherwise both the witnesses are consistent on material points in their statements and we have not found the discrepancies in their statements. We hold after the perusal of the statements that the prosecution has succeeded in proving the guilt of the appellant and that the prosecution has also succeeded in proving that 2 Kgs. Of heroin was recovered from the Attache case of the appellant and his co-accused Muhammad Salim. This fact is fully supported by the apprehension of the appellant at the Airport which even has been admitted by him in his statement under section 342, Cr.P.C. No reasonable explanation has been given by the appellant for his presence at the Airport or for his false implication in this case and the recovery from him of huge quantity of heroin. Learned counsel for the appellant has failed to point out any reason for disbelieving the evidence produced by the prosecution at the time of trial. The evidence so produced is worth of credence which is sufficient to connect the appellant with the commission of the crime and we hold that the appellant has been rightly found guilty under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of C.N.S.O., 1995. Hence the appeal of the appellant is dismissed.
7. However, we have considered that the sentence awarded to the accused/appellant is not proportionate to the quantity of narcotics recovered from him. The maximum punishment awarded to him is liable to be reduced, as the appellant from the evidence of the prosecution has been found to be a carrier and not the owner of the heroin, which was being transported to Karachi for its onward transportation to abroad. We have given our anxious consideration to the contentions raised by the learned counsel.For the appellant and the State to the extent of sentence awarded to the appellant. Under section 9(c) of the Control of Nareotic Substances Act, 1997 the following sentences can be passed:- "S.9(c)
"Sentence of R.I. Up to 14 years or life or death in case the quantity of the narcotics exceeds one Kg.
' However, proviso attached to subsection (c) prescribes minimum penalty of life imprisonment in case the quantity exceeds 10 Kgs."
' From a bare perusal of section 9(c) of the . Act, it can be gathered that the sentence of life imprisonment or death in cases involving narcotics with quantity of less than 10 Kgs. Would be too harsh and may not appear to be in consonance with the above provisions and may be highly disproportionate in cases involving quantity of less than 10 Kgs, which normally would not call for a sentence exceeding 14 years' imprisonment. As the appellant was a carrier and is first offender and the quantity recovered from him is less than 10, Kgs. The sentence of death or life imprisonment is not warranted hence the reference is replied in negative and death sentence is NOT confirmed.
However, the appellant is sentenced to 14 years' R.I. With a fine of Rs,1,00,000 and in default thereof to suffer one year's S.I. He is also given the benefit of section 382-B, Cr.P.C.
8. Subject to the above modification in the quantum of sentence, this appeal fails. Copy of this judgment shall be sent to the learned trial Court for implementation.
Sentence reduced.