QAIM SHAH vs THE STATE
The petitioners sought leave to appeal against the judgment of the Peshawar High Court, which dismissed their criminal appeals and maintained their convictions and sentences under section 9(c) of the Control of Narcotic Substances Act, 1997 for the recovery of large quantities of charas and opium. The core legal questions involved the establishment of conscious possession of narcotics recovered from a vehicle and the proportionality of the sentence imposed for the quantity recovered from the female petitioner. The Supreme Court held that the prosecution successfully proved individual recoveries and conscious possession beyond a reasonable doubt, affirming the conviction of the first petitioner while finding the life imprisonment awarded to the second petitioner excessive given that the recovered quantity was under ten kilograms. The Court laid down the principle that concurrent findings of fact regarding credible and consistent recovery evidence by prosecution witnesses will be sustained, and that sentences under narcotic control laws must be appropriately adjusted based on the specific quantity of contraband recovered from each accused person.
- Whether mere recovery of contraband articles from a vehicle automatically connects an accused person to them without proving conscious possession?
- Is a sentence of life imprisonment excessive under section 9(c) of the Control of Narcotic Substances Act, 1997 when the quantity of recovered narcotics is less than ten kilograms?
- Whether concurrent findings of fact by the trial court and the High Court regarding the recovery of narcotics warrant interference by the Supreme Court when the prosecution evidence is consistent and confidence-inspiring?
- Section 382-B, Code of Criminal Procedure 1898
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 342, Code of Criminal Procedure 1898
- Section 340(2), Code of Criminal Procedure 1898
' M. JAVED BUTTAR, J.--- The petitioners, Qaim Shah and Mst. Shamshada, through listed petitions, are seeking leave to appeal against judgment, dated 14-1-2004 passed by a learned Division Bench of Peshawar High Court, whereby Criminal Appeals Nos.184 and 185 of 2003, instituted by the petitioners, were dismissed and their convictions and sentences recorded by trial Court were maintained. However, the benefit of section 382-B, Cr.P.C. Was given to them.
2. The petitioners, were tried by Judge, Special Court (CNS), Peshawar under section 9(c) of C.N.S.A., 1997, in case F.I.R. No,36, dated 3-8-2001 registered at Police Station Anti-Narcotics Force, Kohat for an occurrence of the same day which took place near F.C. Post, Kotal, Kohat in which, at about 0900 hours,, Flying Coach coming from Dera Adam Khail side was stopped and a bundle of cloth (Gathri) was recovered from petitioner Qaim Shah which contained 13 kilos and 600 grams of Charas and one kilogram of opium, in different packets. The personal search of petitioner Mst.
Shamshada through lady searcher led to the recovery of 9 kilos and 600 grams of Charas in different packets. A small quantity of the contraband was separated from each packet, as sample for chemical analysis.
3. The prosecution produced five witnesses. P.W.1 Kamin Khan M.H.C. Registered the formal F.I.R.
(Exh.P.A.) on the basis of "Murasila" complaint sent to him. P.W.2 Rehmat Khan, Assistant Director A.N.F., Kohat submitted the complete challan against the accused. P.W.3 Inspector Ismatullah Khan was head of the police party which had stopped the vehicle and taken subsequent steps of recovery of narcotics from the petitioners, and their arrest. He took into possession all the recovered Charas, opium, N.1.C. Of petitioner Qaim Shah, and the cloth articles in which the narcotics were concealed through recovery memo. Exh.P.C. He drafted the "Murasila" (Exh.P.A./1) and sent the same to police station. He also sent the sample parcels to the Forensic Science Laboratory, Rawalpindi for chemical analysis and received the reports (Exh.P.E. And Exh.P.F.) which were in positive. On completion of investigation, he handed over the case file to the incharge of police station for submission of complete challan against the accused. P.W.4 Mst. Gulshada Lady Searcher Police Station A.N.F. Kohat is marginal witness of recovery memo. Of Exh.P.C. And also the witness of recoveries of narcotics from accused. She is the one who had conducted the personal search of petitioner Mst. Shamshada. P.W.5 Gulmar Jan L.H.C. Is another witness of recovery and marginal witness of recovery memo. Exh.P.C.
' The petitioner; in their statements under section 342, Cr.P.C. Denied the allegations, repudiated the charge and claimed to have been falsely involved.
4. The petitioner Qaim Shah in his statement under section 340(2), Cr.P.C. Repudiated and took the stand that the "Gathri" planted on him, was in fact recovered from Mst. Shamshada. Mst.
Shamshada in her statement under section 340(2), Cr.P.C. Took the plea that the contraband was owned by co-accused Qaim Shah and she being a poor lady accompanied him out of monetary incentive.
5. The learned trial Court vide its judgment dated 24-3-2003 convicted the petitioners, under section 9(c), C.N,S.A., 1997 and sentenced both of them to imprisonment for life and fine of rs,.2,00,000 each or in default to further suffer two years,' S.I. Each. Their appeals, as mentioned above, were dismissed by the Division Bench of Peshawar High Court.
6. We have heard the learned counsel for the petitioners,, the State and have also seen the available record .
7. It has been submitted on behalf of petitioner Qaim Shah that mere recovery of contraband articles from a vehicle does not automatically connect an accused person with such contraband articles unless the conscious possession of such articles by such accused is proved by the prosecution. As regards the recovery from the personal search of petitioner Mst. Shamsahada, nothing cogent was argued. The learned Senior Advocate Supreme Court on behalf of Advocate- General, N.-W.F.P. Representing State, while vehemently opposing the petitions, supported the impugned judgment and submitted that in view of the material available on the file, the learned Judges of the High Court were fully justified in believing the prosecution evidence.
8. We have given our anxious consideration to the entire evidence available on record. The explanation offered by the petitioner Qaim Shah of false implication, is not plausible. He was travelling with the co-accused who was not related to him in any manner. The prosecution witnesses had no enmity or grudge against him to involve him falsely. The prosecution witnesses were consistent and confidence-inspiring regarding the time and place of occurrence and recovery of narcotics. The huge recovery was effected honestly and fairly. In our view, the Courts below correctly concluded that the above-said huge quantities of narcotics were recovered individually from the petitioners,. There is nothing on the record to doubt the said recoveries. Both petitioners, were correctly convicted. As regards the sentences, petitioner Qaim Shah has been awarded minimum sentence of life imprisonment as provided in the proviso to section 9(c), C.N.S.A., 1997. As regards the sentence of Mst. Shamshada, we are of the view that the recovery from her being less than 10 kilos, the sentence of life imprisonment is excessive and sentence of 10 years,' R.I. With the reduction in the amount of fine of rs,.1,00,000 or to further suffer six months' S.I.
Would meet the ends of justice.
' In view of the above-mentioned---
(i) Jail Petition No,94 of 2004 of Qaim Shah petitioner is dismissed.
(ii) Jail Petition No,141 of 2004 of Mst. Shamshada petitioner is converted into an appeal and partly allowed. Her sentence and fine are reduced in the above terms.
(iii) Both the petitioners, shall have benefit of section 382-B, Cr.P.C. IA given to them by the High Court.