QAISARULLAH and others vs THE STATE

' MUHAMMAD FARRUKH MAHMUD, J.--- Qaisarullah appellant through Criminal Appeal No,285 of 2008 and Abdul Wali appellant through Criminal Appeal No,286 of 2008 have challenged the judgment, dated 14-4-2008 handed down by the learned Division Bench of Lahore High Court, Rawalpindi Bench in case F.I.R. No,21 registered at Police Station Attock Khurd on 11-1-2004 for offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be referred as the Act) whereby, their appeals were dismissed and the conviction and sentence of the appellants recorded by the learned trial Court, were maintained.

2. Both the appellants faced trial in the above noted case. The learned trial Court vide judgment, dated 2-7-2005 convicted both the appellants for offence under section 9(c) of the Act and sentenced each of them to imprisonment for life. Both the convicts were also directed to pay fine to the tune of Rs,3,00,000 each, in default of payment whereof they were to suffer one year's R.I. Benefit of section 387-B, Cr.P.C. Was given to the convicts. After dismissal of their appeal, feeling aggrieved both the appellants approached this Court through Criminal Petitions Nos.234 and 246 of 2008.

Leave was granted in both the petitions vide order, dated 11-8-2008. Both the appeals are being decided through this consolidated judgment.

3. The relevant facts are that on the basis of secret information, a Suzuki car registered No,A1234/Manshera which was occupied by the appellants, was signalled to stop by the complainant Ijaz Hussain S.-I. At about 12 noon on the fateful day. The driver instead of stopping the car raced the car towards Rawalpindi. The complainant and his companion police officials followed the Suzuki car. At about 12-15 p.m. Near Gondal Chowk G.T. Road, the driver of the Suzuki car could not control the car which struck with the footpath and turned turtle. Qaisarullah appellant who was driving the car and Abdul Wali appellant who was sitting on the front seat were injured and were apprehended by the police. Both the accused after some resistance informed the police that Charas had been concealed in secret cavities of the doors of dicky of the car. After receipt of information, complainant Ijaz Hussain, S.-I. And Anwar Iqbal, constable searched the car and recovered ten packets each from both the rear doors of the car containing 20 Kgs. Of Charas and 150 packets containing 150 Kgs. Of Charas from the dicky of the car. The Charas recovered was weighed and found to be 170 Kgs. According to F.I.R. From each packet of the Charas small quantity (total 10 grams) for the purposes of chemical examination was separated and the remaining Charas was secured in two bags each contained 85 packets of Charas. After the recovery the above noted case was registered. -

4. During trial the prosecution examined five witnesses. Anwar Iqbal, constable and Ijaz Hussain, S.- I. Complainant appeared P.W.4 and P.W.5 respectively. They supported the story narrated in the F.I.R. And also the recoveries effected from the appellants. Dr. Muhammad Fayyaz Bukhari appeared as P.W.3 and stated that he examined Qaisarullah and Abdul Wali on 11-1-2004 who were produced before him by the police and had received injuries on their persons which had been caused within six hours of the examination. Azhar Iqbal, Constable appeared as P.W.2 and stated that on 17-1-2004 he was handed over a sealed parcel containing Charas which he delivered to the office of Chemical Examiner on the same date. Gulfraz, Constable appeared as P.W.1 and stated about the formal registration of case on the basis of complaint sent by P.W.S. He further stated that on 11-1-2004 P.W.5 handed over three sealed parcels of Charas which he kept in safe custody in Malkhana and on 17-1-2004 he handed over the sample parcel to P.W.2 for its onward transmission to the office of Chemical Examiner, Rawalpindi. After report of Chemical Examiner Exh.P.M. Which is positive, the prosecution closed its case. Qaisarullah appellant in his statement under section 342, Cr.P.C. Pleaded to be innocent and stated that he was in fact travelling in flying coach and was going to Rawalpindi to see his relatives. On the way, the coach met with an accident at Gondal Chowk, the police came there and he was taken to the hospital and subsequently, roped in this false case. Abdul Wali claimed to be innocent. He denied any recovery from his possession.

According to him he was an employee of Pakistan Air Force and had gone to Nowshera after death of his grandmother and on the fateful day, he was waiting at Nowshera Bus Stand when a car registered No,A1234 with official number plate came there and offered him the lift. Since he was in a hurry, he boarded the car which was signalled to stop at Mullan Mansoor Check Post but the driver did not stop the vehicle. The car was chased by the police party and when the car reached near Gondal Chowk it struck with the footpath and turned turtle. He further stated that he was a Hafiz-e- Qur'an and belonged to a most respectable family and was serving in PAF Kamra for the last seven years and that he had no knowledge of narcotics concealed in the car. He opted not to appear as a witness in his defence under section 340(2), Cr.P.C. However, he produced Rustam Khan (D.W.1) who supported the story of the appellant that he was given lift in car on the fateful day. After placing on record postal receipt and photocopy of the application moved to the S.P. Attock, he closed his defence.

5. Learned counsel for the appellant Qaisarullah at the very outset submitted that instead of pressing for acquittal he would pray only for reduction in sentence. To substantiate his arguments he had submitted that only 10 grams of Charas was taken for chemical examination and that there was no evidence that the sample of Charas was collected from each of the packet and even otherwise if the Charas had been collected from each of the packet, then quantity of sample Charas would be much more than 10 grams.

6. Learned counsel for Abdul Wali appellant has prayed for acquittal for the reasons that the prosecution failed to prove that Abdul Wali appellant, who was not driving the car, had knowledge about concealing the narcotics in the car.

7. Conversely, it has been argued by the learned Deputy Prosecutor-General that a huge quantity of narcotics was recovered from the car which was occupied by both the appellants; that story of appellant Abdul Wali he was given lift by the driver of car was not supported by any independent evidence; that P.Ws. Had no personal motive to involve the appellant in a false case; that considering the quantity of Charas appellants were rightly convicted for offence under section 9(c) and sentenced to life imprisonment.

8. We have heard the learned counsel for the parties at length and have also gone through the relevant record of the case. P.W.4 and P.W.5 have stuck to the story of recovery of Charas from the Suzuki which was being driven by Qaisarullah appellant. Qaisarullah and Abdul Wall both got injured after the car met with an accident and were got examined by P.W.3, so their presence is established. Nothing could be brought on record by Qaisarullah appellant that any of the P.Ws. Had any personal grudge or enmity against him so as to involve him in a false case. The defence plea of Qaisarullah that after the accident, police shifted him to the hospital and thereafter roped him in a false case, is not supported by any evidence and was rightly rejected by the learned Courts below. In the circumstances, the recovery of Charas from the possession of Qaisarullah is proved and he was rightly convicted by the learned Courts below. The learned counsel for the appellant has rightly not prayed for acquittal of Qaisarullah. Having come to this conclusion, we have given serious thought to the quantum of sentence. According to F.I.R. 170 packets were recovered from the car, each packet weighed 1 Kg. And some quantity of Charas was separated from each of the packet for the purpose of chemical examination. Even if one gram of Charas would have been separated from each of the packet, then the total would be 170 grams and not 10 grams. It is virtually impossible to separate 1/17 grams even by micro tools from a packet containing 1 Kg. Of Charas. According to P.W.4 each packet contained 1 kg. Of sold Charas but he could not remember as to how much Charas was separated as sample for chemical analysis. Similarly, P.W.5 after improving his story by stating that he separated with the help of knife conceded that he could not tell as to how much Charas was separated for sample from the bulk of Charas. In the above noted circumstances, possibility that 10 grams of Charas was separated from a single packet cannot be ruled out. It is cardinal principle of law that benefit of each doubt is to be given to the accused. The judgment passed by this Court in the case of Daulat Khan v. The State 2007 SCM R 1437 is referred.

9. In the circumstances of the case, the recovery of 10 grams of Charas can only be used against the appellant Qaisarullah. Hence we alter his conviction from offence under section 9(c) of the Act to offence D under section 9(a) of the Act. His sentence is reduced to the period already served out by him. He would be released forthwith if not required in any other criminal case. His appeal is partly allowed and judgments passed by the learned Courts below are modified in the above- noted terms.

10. Now coming to the case of Abdul Wali appellant. Undeniably, according to prosecution case, car was being driven by Qaisarullah appellant and not by Abdul Wali. The prosecution failed to connect Abdul Wali appellant with the ownership of the car. From the day one, Abdul Wali took the defence plea that he was an employee of Pakistan Air Force and he was given lift by the driver of the car when he returned from Nowshera. P.W.5, who is author as well as investigator of the case admitted it to be correct that Abdul Wali appellant informed him that he was serving in Pakistan Air Force, Kamra which fact was enquired by him and was found to be correct. He also admitted that he recorded the statement of Abdul Wali appellant after his arrest wherein he stated that he had gone to Nowshera after the death of grandmother and was coming back to his duty and while waiting for a bus, car stopped there and driver offered him lift which he accepted. It was also admitted by P.W.5 that in the first version Abdul Wali appellant had taken the stance that he knew nothing about the concealment of the narcotics in the car. The prosecution failed to prove through convincing evidence that Abdul Wali had exclusive knowledge of the concealment of narcotics in the car which neither belonged nor was being driven by him. Abdul Wali, as noted above was employee of Pakistan Air Force who lived and worked at different place than that of Qaisarullah. No link between the two was established on the record of the case. The first version of the accused was recorded immediately -fter the apprehension and was to be given due weight. The plea taken by Abdul Wali is supported by circumstances of the case.

11. For what has been said above, while extending the benefit of doubt, we allow the appeal filed by Abdul Wali appellant. He is acquitted of all the charges and would be released forthwith if not required in any other case. The judgment passed by the learned Courts below, to his extent, are set aside.

12. These were the reasons of our short order of even date which is reproduced below:--- "For the reasons to be recorded later Criminal Appeal No,285 of 2008 filed by appellant Qaiser Ullah is partly allowed, his conviction is altered from sections 9(c) to 9(a) of Control of Narcotic Substances Act, 1997 and sentenced to the period already undergone by him. Whereas Criminal Appeal No,286 of 2008 filed by Abdul Wali is allowed and he is acquitted of charges while extending benefit of doubt in his favour. Both the appellants shall be released forthwith if not required in any other case."