M. Javed Buttar, J.--The appellant Joshua Chigbogu, resident of Oshodi Road, Lagas, Nigeria, alongwith co-accused Frank alias Sanga, resident of House No, 11, Box No, 178, Darul Islam Tanzania, was tried by Special Judge, Control of Narcotic Substances Lahore, in case FIR No, 50/2002 dated 29.12.2002, registered at Police Station ANF Lahore, for the offences under. Sections 9 & 15 of the Control of Narcotic Substances Act, 1997, for the alleged recovery of 3.5 Kilograms heroin from him.
The learned trial Court, vide its judgment dated 22.11.2003 while acquitting both the accused from the charge under Section 15 of the Control of Narcotic Substances Act 1997, convicted the appellant under Section 9(c) of the above Act and sentenced him to 10 years R.I. with a fine of Rs, 2,00,000/- and in default of payment of the same, to further suffer S.I. for one year. The learned trial Court also convicted the co-accused Frank alias Sanga under. Section 9(b) of the Control of Narcotic Substances Act 1997, for the alleged recovery of 500 grams of heroin from his possession and sentenced him to 3 years R.I with a fine of Rs, 50,000/- and in default of payment of the same, to further suffer 6 months S.I. The appellant, through this appeal has assailed the legality and correctness of his conviction and sentence, whereas co-accused/co-convict Frank alias Sanga has not filed any appeal.
2. The relevant facts of the case as per complaint (Exh. P/1) and the FIR (Exh. PA), are that Force Commander, Anti Narcotic Force, Punjab, received a secret information on 29.12.2002 that two black coloured members of an International Gang namely Joshua (the appellant) and Frank alias Saga (the co-accused), who are involved, since long, in the business of smuggling the narcotics, would come today at 2.00 p.m. to Rex Hotel near Boharwala Chowk, Nicolson Road, Lahore, to hand over heavy quantity of heroin to another member of their Gang. This spy information led to the constitution of a raiding party under the supervision of Major Shamshad Hussain Dar, Deputy Director, ANF Lahore, consisting of the complainant Muhammad Afzal Asim, Inspector/SHO, Police Station ANF Lahore (PW-4), Ch. Umar Hayat, Deputy Director ANF, Rana Ameer Hamza Inspector (PW-3), Subedar Muhammad Siddique, Naib Subedar Muhammad Yaseen, Havaldar Nisar Ahmed, Munawar Hussain and Constables Muhammad Aslam SSG, Iqbal Saleem, Waqar Ahmed and Muhammad Amjad. The raiding party alongwith the informer reached near Rex Hotel on official vehicles at about 1.45 p.m. and after parking the vehicles, started secret surveillance of the area in plan clothes. At about 3.00 p.m. two black coloured individuals were seen coming from the side of Boharwala Chowk towards Rex Hotel. On the pointation of the informer, they were apprehended and on inquiry, they disclosed their names and addresses, etc., given above. On the personal search of the appellant four packets of heroin were recovered from a shopping bag, being held by the appellant in his right hand. Three packets weighed 1 Kg each, whereas fourth packet weighed 500 grams. Thus a total of 3.5 Kilograms of heroin, was allegedly recovered from the possession of the appellant. Out of each packet, 5 grams of heroin was separated and made into four sealed parcels as samples for chemical analysis and the remaining heroin was made into one sealed parcel and all the five parcels were sealed with the seal of ANTF and were taken into possession, vide recovery memo. (Exh. PB). The personal search of the co-accused Frank alias Saga led to the recovery of one packet of heroin weighing 500 grams from the shopping bag held in his right hand.
Five grams of heroin from the same was separated and made into a sealed parcel as sample and of the remaining packet of heroin (P2) another sealed parcel was prepared and both the parcels were sealed with the seal of ANTF and secured, vide recovery memo (Exh. PC). On the personal search of the appellant, certain personal articles were also recovered from the appellant and the co-accused, which were taken into possession, vide recovery memos. Exh. PD and Exh. PE.
3. After completion of the investigation and after the receipt of positive report of the Chemical Examiner about the, samples, both the accused were challaned to Court.
4. The accused were charged by the trial Court on 9.4.2003, to which they pleaded not guilty and claimed trial.
5. PW-1 Muhammad Yaseen Moharar received the complaint sent by the complainant through Abdul Shakoor Constable, on 29.12.2002 on the basis of which, he recorded the formal FIR (Exh. PA).
On the same day, the complainant/Investigating Officer handed him over seven sealed parcels allegedly containing heroin, alongwith other case property, for safe custody in the Malkhana. On 31.12.2002, he handed over five sealed parcels of sample said to contain heroin, to Rashid Mehmood Constable, for onward transmission to the office of Chemical Examiner Lahore.
6. PW-2 Rashid Mehmood Constable stated that he received five sealed parcels said to contain heroin from Muhammad Yaseen Moharar, on 31.12.2002, which were delivered by him, on the same day, in the office of Chemical Examiner Lahore.
7. PW-3 Amir Hamza Inspector, PS ANF Lahore, was member of the raiding party. He supported the prosecution story as contained in the complaint and the FIR and he is also an attesting witness of recovery memos Exh. PB, Exh. PC, Exh.PD and Exh. PE
8. PW-4 Muhammad Afzal Asim Inspector/SHO, the complainant/I.O. supported the prosecution case, detailed above. He further stated that he prepared the complaint (Exh. PA) in his own handwriting and with his signatures and dispatched it through Abdul Shakoor Constable, for registration of case, prepared the site-plan of the place of recovery Exh. PF, recorded the statements of the witnesses under Section 161 Cr.P.C. and formally arrested both the accused persons. He added that on his return to the Police Station, he handed over 7 sealed parcels to the Moharar of the Police Station for safe custody in the Malkhana, recorded the statements of Muhammad Yaseen Head Constable and Rashid Mehmood Constable and on receipt of the reports of Chemical Examiner Exh. PG and Exh. PG/1, submitted the challan report in Court.
9. The prosecutor gave up Safdar Hussain Constable, as being unnecessary and closed the case for prosecution on 3.11.2003.
10. In his statement recorded under section 342 Cr.P.C. the appellant while denying the recovery of heroin stated that : "The real fact of the matter is that I was taken in custody from the passage of Rex Hotel. I went over there to see a friend. They then took me to Room No, 106 of the hotel. I saw over there, 3 Pakistani and my co-accused Frank present today in Court. The ANF people then brought a woman over there and they told me that I was under arrest. I asked from them as to what was my fault, but they did not reply and handcuffed' me. They dragged me in their car. My co-accused Frank and the aforementioned woman was also dragged to the car. I did not know the aforementioned woman as well as my co-accused. I was then taken to their office, where, my clothes were removed and they collected my US Dollars 3200, and Rs, 280/-. They asked me to leave the money over there and go away, failing which I would be in trouble. I insisted that my money should be given back to me.
They refused to return my money and told me that I shall be thrown in the Jail. All this' happened on 29.12.2002. On 4.1.2003, they brought me out from the cell and they snapped my pictures. They did not shown anything to me nor they showed as to what was taken from me and then took me to jail."
He further stated that "the real fact of the matter is that he recovered from my personal search two gold Finger Rings, a gold Necklace, 3200 US Dollars, 290/- Pak Rupees, refugee papers, valets, his waist belt and cap were recovered.
11. We have heard the learned counsel for the appellant, the State and have also seen the record with their help.
12. The learned counsel for the appellant has not assailed the conviction of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 but has prayed for the reduction of the sentence, on the grounds that the appellant is a foreigner, keeping him in Jail will not serve any useful purpose, as he is not a member of our society, he will be a burden on the exchequer and he wants to leave the country. The learned counsel has also placed reliance on Obic Funs Emanuel vs. The State (1991 P.Cr.L.J. 1705), Khushnood Ahmad vs, The State (1991 P.Cr.L.J. 1920), Saleh Dowson vs. The State (1991 P.Cr.L.J. Note 123) and Ahmad Kabir vs. The State (1983 P.Cr.L.J. 2299). The learned Law Officer has opposed the contention and has stated that the offence committed by the appellant falls under the provisions of a special law, which has been promulgated and enacted to curb nefarious activities in regard to narcotics, the law does not distinguish between a foreigner and a Pakistani, it is equally applicable to all and no leniency can be taken in the present case merely because the appellant is a foreigner and he wants to leave the country. He has also placed his reliance to Haji Naik Muhammad vs. The State (2001 P.Cr.L.J. 1160). The judgments relied by both the parties are distinguishable and are not applicable to the facts of present case. Even otherwise, every case has to be decided on its own facts.
13. Although the conviction of the appellant has not been assailed before us by the learned counsel for the appellant and only reduction in the sentence has been prayed for, we have, on our owned, checked the evidence. The recovery of 3.5 Kg of heroin from the appellant has been proved by PW- 3 and PW-4. We have carefully examined the statements of both these witnesses. They are consistent and confidence inspiring. The defence has not been able to elicit any major or material contradiction, in their cross-examination. It has not been able to make any dent in the prosecution ease. They had no enmity or ill will towards the accused persons and for this reason, no such enmity or ill will was even suggested to them by the defence, while they were being cross- examined. The version of the appellant that 3200$ --US Dollars allegedly recovered from his possession were misappropriated by the raiding party, is wild and without any basis. It is merely an after thought to save the skin. Further more, 4 Kg of heroin recovered from the accused is worth much more than the alleged 3200$ Dollars and Mobile Phone. Therefore, such a huge quantity of heroin could not have been falsely planted on the accused.
14. We are, therefore, of the view that the prosecution established its case beyond reasonable doubt and the learned trial Court correctly recorded the conviction. As far as the prayer of reduction of sentence is concerned, we find no force in the arguments of the learned counsel for the appellant. No distinction can be made between a foreigner and a local in sentencing such an accused. Control of Narcotic Substances Act XXV of 1997, is a special law. It does not create any such distinction. It is equally applicable to the foreigners as well as the locals. Further more, the creation of such a special distinction and lenient dealing with the foreigners in the matters of sentencing, would amount to encouraging the foreigners to indulge in the narcotics smuggling in Pakistan. The law would cease to be a deterrent for foreigners, if they are sentenced leniently. Such a distinction would, therefore, defeat the objectives of the law. In our view the appellant has already been dealt with too leniently by the learned trial Court.
15. In view of the above, we see no merit in this appeal, which is accordingly dismissed.