IJAZ-UL-HASSAN, J.---Appellant Afsar Khan, an Afghan Refugee was tried in the Court of learned Sessions Judge/Judge Special Court, Nowshera for offences under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 and upon conviction through judgment dated 20-7-2001 was sentenced to life imprisonment under section 9(c) of the Act and fine of Rupee One Million or in default thereof to undergo further S.I. For three years. Motor Car bearing Registration No.IDH-9119 found to have been used in the commission of crime was also confiscated to the State. Benefit of the provisions of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Feeling aggrieved of his conviction and sentence the appellant has preferred this Criminal Appeal No.235 of 2001 before this Court.
3. Facts of the case in brief are that on receipt of spy information on 22-9-1997 by Regional Director, Anti-Narcotic Force, Peshawar that on the said date huge quantity of narcotics will be smuggled in a Motor Car No.IDH-9119, 'Nakabandi' was conducted at G.T. Road near Khair Abad. At about 7-30 a.m. The aforesaid car was sighted coming from Nowshera side P.W. Muhammad Arshad Khan, F.I.O. Leader of the raiding party gave signal to the driver to stop the car but he accelerated the speed. P.W. Arshad Khan fired two shots upon the tyre. The driver stopped the car and succeeded to make good his escape despite chase by the narcotic staff. However, a person was found sitting on the front seat of the car who introduced himself as Afsar Khan son of Muhammad Alam Khan and disclosed the name of the driver as Alamzeb, resident of Badaber, Peshawar. As no adequate facilities were available at the spot, the motor car alongwith Afsar Khan was brought to A.N.F Headquarter, Peshawar. The search of the car led to recovery of three cartons, containing heroin packets. Beneath them 20 packets opium wrapped in white cloth, were also recovered. On weighment the contraband articles were found 80 kilograms heroin and 76 kilograms opium. The articles were concealed in the dickey of the car. A small portion out of the recovered material was separated for chemical analysis. On inquiry Afsar Khan accused stated that the contraband narcotics belonged to Nawab Khan Afridi resident of Landi Kotal and Siyal Afridi resident of Bara Peshawar. The accused person was arrested and a 'Murasila' was drafted which was incorporated in F.I.R. No.43 dated 22-9-1997 under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997, Police Station, ANF, Peshawar.
4. After usual investigation accused appellant was challaned to the Court of Sessions Judge/Judge Special Court, Nowshera. Charge was framed against the accused-appellant to which he pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case produced six witnesses in all including F.I.O./S.-I., Muhammad Arshad Khan, who conducted raid, apprehended the accused--appellant, recovered contraband narcotics from Motor Car No.IDH-9119 and took various other steps in the investigation of the case. He was fully supported by Subedar Aftab Ahmed who was accompanying Muhammad Arshad Khan at the time of raid.
6. In his statement recorded under section 342, Cr.P.C. The accused-appellant denied the allegations imputed to him and claimed to have been charged falsely at the instance of the police.
He did not appear in his defence as envisaged by section 340(2), Cr.P.C. Neither led any defence.
7. After taking into consideration the material available on the file, the learned trial Judge convicted and sentenced the accused--appellant as stated above, holding that prosecution has succeeded in bringing home the charge against the accused and he was found to have participated with his absconding co-accused Alamzeb in trafficking huge quantity of contraband heroin and opium for other absconding co-accused namely Nawab Afridi, Khial Shah and Haji Siyar. The learned trial Judge also pointed out that the accused appears to be a carrier and hence does not deserve extreme punishment.
8. Mr. Manzoor Khan Khalil, Advocate, for the appellant contented with force that the judgment passed by the learned trial Court is against law and facts on the record as basically the evidence was not examined in the light of the settled, principles of appraisal of evidence and in fact the prosecution version was under cloud, therefore, on the basis of benefit of doubt, accused appellant should have been acquitted in this case. He submitted that if at all it is believed that the prosecution case was established even then the circumstances on the record may -force to believe that accused--appellant was simply carrier and that the actual owners of the narcotics were the persons namely Nawab Khan Afridi, Khial Shah and Haji Siyar, and in this situation superior Courts have always taken a lenient view in awarding the sentence. The learned counsel next submitted that the original Forensic Science Laboratory Report is not available on the file and same has been removed from the record with a definite purpose and that photostat copy of the record should not have been relied upon, and made basis of conviction. The learned counsel further submitted that the destruction of the contraband was not carried out in accordance with law which causes dent in the prosecution case vis-a-vis recovery, quantity and disposal thereof.
Concluding the arguments, the learned counsel submitted that though the alleged recovery is shown to have been effected on receipt of advance information but no independent and disinterested witness from the locality has been associated with the proceedings to prove recovery. He contended that mandatory provisions of section 103, Cr.P.C. Have been seriously violated in this case which has materially prejudiced the interest of accused-appellant.
9. Mr. Salah-ud-Din Khan, learned Deputy Attorney-General, on the contrary, supported the impugned judgment and contended that appellant is one of the accused persons named in the F.I.R. For having participated in the crime in question and that while examining the evidence there was a correct analysis of the evidence made by the trial Court and being so the impugned judgment calls for no interference.
10. We have carefully attended to the arguments of learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statement of the accused- appellant recorded under section 342, Cr.P.C. Appearing in the case, in order to ascertain as to whether or not there is substance in the contentions raised before us.
11. In this case pursuant to receipt of credible information, a 'Nakabandi' was conducted on 22-9- 1997 at G.T. Road Khair Abad and at 7-30 a.m. Motor Car No.IDH---9119 (black colour) was seen coming. The driver was given a signal by Muhammad Arshad Khan, F.I.O. (P.W.6) to stop but he accelerated the speed. The raiding party chased the car but the driver succeeded to make good his escape leaving the car at the spot. A person was found sitting on the front seat who disclosed his name Afsar Khan. The car alongwith Afsar Khan was brought to A.N.F. Headquarter, Peshawar and on a thorough search the contraband narcotics i.e. Heroin and opium 80 kilograms and 76 kilograms respectively, was recovered from its dickey. A small portion was separated for chemical analysis.
11-A. Two witnesses namely Subedar Aftab Ahmed (P.W.3) and Muhammad Arshad Khan, F.I.O.
(P.W.6) have been produced by the prosecution to establish the factum of apprehension of the accused--appellant on 22-9-1997 during 'Nakabandi' conducted at G.T. Road Khair Abad while sitting in Motor Car No.IDH-9119 and recovery of contraband heroin and opium from the dickey of the car. Regarding the recovery, suffice it to say that the deposition of F.I.O. Muhammad Arshad Khan (P.W.6) gaining strength from the statement of Subedar Aftab Ahmed (P. W.3) can safely be depended upon as he is not only responsible officer but has supported the prosecution version in a straightforward manner. Both these witnesses were subjected to lengthy and searching cross- examination in order to shatter the prosecution version but nothing beneficial to accused- appellant could come out of their mouth. It is difficult to believe that such large quantity of heroin and opium was planted to oblige the superiors. It may be remarked here that both the said witnesses have remained firm and made consistent statements on material particulars and learned counsel for the appellant has failed to point out any discrepancy worth the name or contradiction in their statements. No ill-will or enmity has been proved on the part of these witnesses for false implication. A large quantity of heroin and opium has been recovered and it is difficult to believe that it was foisted on the accused-appellant for no other reason but to earn credit. Adverting to the next contention, it is true that original Forensic Science Laboratory Report is not available on the file and a photo stat copy of that same has been exhibited but failure on the part of the prosecution is not fatal and is curable under section 537, Cr.P.C. The objection is misconceived. The learned counsel for the appellant has also failed to prove that the destruction of the contraband material was not carried out in accordance with law which shatters the prosecution case vis-a-vis recovery, quantity and disposal thereof. The recovery has been proved satisfactorily and omission to fulfil the ingredients of section 103, Cr.P.C. Is not vital in view of section 25 of the Act.
12. Adverting to the question of sentence, we find that when the prosecution proves case to the entire satisfaction of the trial Court for an offence committed by him and the trial Court gives a sentence which is quite legal, the punishment or in other words sentence may not be reduced. The discretion exercised by the trial Court judiciously should not be interfered with unless some special circumstances are available on the record for grant of some concession in the sentence passed by the trial Court. Having adjudged the appellant as carrier, the learned trial Court has already taken a lenient view in awarding lesser sentence. We do not find any reason to interfere with the discretion exercised by the trial Court in awarding the sentence. Persons allegedly involved in spreading narcotics in society and tarnishing the image of the country in the comity of Nations are not the kind of persons who are worthy of discretionary relief and indulgence in the matter of sentence. The heroin has become a menace for the society and the person involved in this business is not entitled for any grace or concession. Finding no substance in this appeal, we dismiss the same and maintain the impugned judgment of the learned trial Court dated 20-7-2001.