Stereo. H C J D A 38.
Judgment Sheet
LAHORE HIGH COURT, RAWALPINDI BENCH.
JUDICIAL DEPARTMENT
Criminal Appeal No.167 of 2010
(Hameed Khan Vs. The State)
JUDGMENT
Date of hearing
23.04.2012.
Appellant by Mr. Muhammad Bilal-ud-Din, Advocate.
Respondent by Ch. Muhammad Waheed Khan, DPG, for the State.
RAUF AHMAD SHEIKH,J.-
The appellant has assailed the
vires of judgment dated 14.01.2010 passed by the learned Sessions
Judge/Judge Special Court (CNSA), Attock, in case FIR No.174 dated
21.09.2005 P.S. Attock Khurd, District Attock, under section 9-C of
the Control of Narcotic Substances Act, 1997, whereby he was
convicted under section 9-C of the CNSA, 1997 and was sentenced to
imprisonment for life and a fine of Rs.10,00,000/- or to undergo S.I.
for six months in default thereof. He was extended the benefit under
section 382-B Cr.P.C.
2.
Briefly stated the prosecution version as set-forth in the FIR
(Ex.PA/1) recorded on the complaint (Ex.PA) submitted by Syed
Mushtaq Hussain, Excise Inspector, Check Post Mullan Mansoor,
District Attock, are that on 20.09.2005 at about 11.00 p.m., the
complainant, HC Rab Nawaz, Constables Javed Ali Khan, Hameed
Akbar Khan, Muhammad Altaf, Habib Ullah Khan, Mehboob Elahi,
Yasir Mehmood and lady Constable Khatoon Bibi of the Excise
Department were present at the Check Post Mullan Mansoor in order
to check the narcotics trafficking. A spy information was received that
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at some time on the same day huge quantity of narcotics would be
smuggled from Frontier (Khyber Patkhtoon Khwah) to Punjab in
Suzuki Pothohar Jeep of white colour bearing official number plate.
On this information, the strict checking was launched. At about 11.00
p.m. one white Suzuki Jeep bearing official number plate was seen
while coming from Peshawar side. A signal was given to stop the
same. The driver, whose name and address was subsequently learnt as
Hameed Khan son of Hasal Khan, caste Afridi, resident of Ganday
Shahi Khail, Peoples Ghari Khajoori, Bara Khyber Agency, could not
control the vehicle, which collided with eucalyptus tree. He was over
powered. The search of Suzuki Pothohar Jeep bearing No.A-5154
Abbotabad was conducted. 200 packets of charas and 10 packets of
opium were recovered from the secret cavities between the two seats
and floor of the Jeep. The weight of charas and opium was 200
Kilograms and 10 Kilograms respectively. 10 grams of charas was
separated from each packet and sample weighing two Kilograms of
charas was taken, whereas 100 grams of opium was also separated by
taking 10 grams from each packet of opium as sample. The samples
and the remaining quantities of narcotics were converted into sealed
parcels and were secured through memo of recovery alongwith the
Jeep Pothohar and Key.
3.
After investigation, the accused was sent up to face the trial. He
was charged under section 9-C of the Control of Narcotic Substances
Act, 1997. He pleaded not guilty and claimed the trial.
4.
The prosecution examined 5 witnesses in support of its
allegations. The complainant appeared as PW-5 and almost reiterated
the contents of the complaint (Ex.PA). He has also proved the memo
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of recovery (Ex.PC) regarding securing of 200 packets of charas
P.1/1-200 and 10 packets of opium P.2/1-10, parcels of samples,
vehicle P.3, Key P.4 and spare wheel P.5 and the memo of recovery
(Ex.PD) whereby a sum of Rs.500/- P.6, NIC P.7, miscellaneous
papers P.8 were secured. Rab Nawaz, Excise Constable (PW-4) has
supported the prosecution version regarding arrival of the accused on
Jeep A-5154 Abbotabad, collision of the Jeep with tree, apprehension
of the appellant recovery of 200 packets of charas weighing 200
Kilograms and 10 packets of opium weighing 10 Kilograms in his
presence, separation of samples and conversion of the samples and
remaining quantity into sealed parcels. He also proved the memos of
recoveries (Ex.PC & Ex.PD). Muhammad Riaz, S.I. (PW-3) is the I.O.
of the case, who has proved the complaint (Ex.PA), formal FIR
(Ex.PA/1) and site plan without scale (Ex.PB). Wali Muhammad
(PW-1) stated that on 21.9.2005 Muhammad Riaz, S.I. gave him two
sealed parcels containing samples and the remaining quantity of
charas and opium, which he kept in the Malkhana and handed over the
parcels containing samples on 22.09.2005 to Muhammad Ijaz for
onward transmission to the office of Chemical Examination intact,
who appeared as PW-2 and stated that he delivered the same intact in
the said office. The report of the Chemical Examiner (Ex.PE) shows
that these substances were charas and opium, which are used to cause
intoxication.
5.
The accused denied the prosecution allegations. He contended
that he was roped in the false case by the local Police in order to show
its ‘Karvi’. According to him, he was arrested on 20.09.2005 at about
10.00 a.m. from the Brick-Kiln situated at village Mullan Mansoor,
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District Attock and was then roped in the false case. DWs-1 and 2
have supported the defence version and stated that he was arrested by
3/4 Police employees on 20.09.2005 at about 9.00 a.m. and
subsequently was involved in the case falsely.
6.
After conclusion of the trial, the learned trial court proceeded
on to convict and sentence the accused as aforementioned.
7.
Learned counsel for the appellant has vehemently contended
that the strong defence evidence has not been given due consideration;
that the Jeep from which the alleged recovery was made is not owned
by the appellant and no effort was made to trace its real owner and
bring his name to book; that according to the complainant, only a sum
of Rs.500/- was recovered at the time of his arrest from the accused,
which is not believable because a person involved in transporting
huge quantity of charas/opium would not keep such meager amount
and that the sentence awarded to the appellant is very harsh and he
being the first offender was entitled to a lenient view. In support of the
contentions raised reliance is placed on Zahoor Ahmad Awan and
another v. The State (1975 SCMR 543), Haji Inayat and another v.
The State (2010 P.Cr.L.J. 825), Nek Muhammad and another v.
The State (PLD 1995 SC 516), Fazal Nabi v. The State (2007 MLD
46), Muhammad Ramzan v. The State (PLD 2007 Peshawar 160),
Muhammad Shafi Khan v. The State (2006 MLD 1596) and Mitha
Khan v. The State (2007 P.Cr.L.J. 426).
8.
Learned DPG has vehemently controverted the arguments. It is
contended that the appellant was caught red handed while transporting
the huge quantity of narcotics i.e. charas weighing 200 Kilograms and
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opium weighing 10 Kilograms and as such he does not deserve any
lenient view.
9.
According to PWs-4 and 5, the appellant did not stop the Jeep
and due to confusion collided the same with a tree, was over powered
and on search, charas weighing 200 Kilograms and opium weighing
10 Kilograms respectively were recovered from the secret cavities of
the vehicle. It is true that no private person was included during the
recovery proceedings as pointed out by the learned counsel for the
appellant but it is a matter of common knowledge that people do not
join hands with the Law Enforcing Agencies in their actions against
narcotics dealers due to fear of life and honour. The official
employees are as good witnesses as anyone else unless it is proved
that they have any motive to depose falsely. DWs-1 and 2, who have
stated that the appellant was arrested on 20.09.2005 at about 9.00
a.m., are residents of Peshawar. The contention that they were
working as labourers with some contractor at Mullan Mansoor,
District Attock, who used to supply bricks, was not substantiated by
any tangible proof. The best witness would have been the owner of
the Brick-Kiln or contractor but they have not been produced. It
appears that they have come forward to extend help to the appellant
for the consideration known to them. Their presence at the time and
place was not natural. They don’t inspire confidence. Huge quantity of
charas and opium could have not been planted because its price must
be in millions and the complainant could have afforded to purchase it
in order to plant it fakely against the appellant with whom he has no
previous ill will, animosity or grudge. The appellant is resident of
Peoples Ghari Bara Khyber Agency, Khyber Pakhtoon Khwah and
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was arrested in the area of Mullan Mansoor, District Attock and his
contention that he was working in District Attock at some Brick-Kiln
is not substantiated. It is true that the ownership of Jeep is not
established but the accused was caught red handed while travelling on
this Jeep alone and huge quantity of narcotic substances were
recovered from the secret cavities of the vehicle. The case law
reported as 1975 SCMR 543, 2010 P.Cr.L.J. 825 and PLD 1995 SC
516 is not applicable on the facts of the present case because the
convicts in those cases were arrested from the Bus orTruck and it was
held that keeping of narcotic substances in secret cavities may not be
in their knowledge, whereas in the instant case the appellant was
coming all alone on the Jeep and was apprehended after an accident,
which took place as he tried to flee away. The defence version is,
therefore, not plausible.
10.
Learned counsel for the appellant has vehemently contended
that the appellant is the first offender so a lenient view should be
taken in the same. In support of the contention raised, he has relied on
2007 MLD 46, PLD 2007 Peshawar 160, 2006 MLD 1596 and 2007
P.Cr.L.J. 426. The appellant was caught red handed while carrying
huge quantity of narcotic substances i.e. 200 Kilgorams charas and 10
Kilograms opium respectively. The samples were promptly dispatched
to the Chemical Examiner for report. On request of the learned
defence counsel three packets at random were opened in the trial court
and it was proved that the samples were sliced there-from. The report
of the Chemical Examiner shows that these samples were in fact
charas and opium. The accused alone has been found guilty for
transporting such a huge quantity of narcotic substances from Khyber
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Pakhtoon Khwah to the Province of Punjab. The minimum
punishment prescribed for keeping in possession narcotics weighing
more than 10 Kilograms is imprisonment for life as is clear from the
Proviso to section 9-C of the Control of Narcotic Substances Act,
1997. The possibility of his being a carrier only and that the actual
person responsible for this mischief might have not been brought to
book is very bleak and has not been established. The conviction
recorded and sentence awarded to the appellant are based on proper
appraisal of the evidence. The narcotic dealers have put the future of
our next generations at stake and have defamed us in the world. They
do not deserve any lenient view and they must be dealt with an iron
hand because they commit the offence against humanity.
11.
For the reasons supra, the appeal is without merits and the same
is hereby dismissed.
(SAGHEER AHMAD QADRI)
JUDGE
Approved for reporting.
Judge
Waris.
Judge
(RAUF AHMAD SHEIKH)
JUDGE