QASIM vs THE STATE

' SHAHJI RAHMAN KHAN, J.--- This appeal is directed against the judgment and order, dated 18-10- 2008 passed by the learned Judge Special Court (C.N.S.) Peshawar whereby the appellant Qasim Khan was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for 10 years and a fine of I? 1,00,000 or in default thereof to suffer further one year simple imprisonment. However, the benefit of section 382-B, Cr.P.C. Was extended to him.

2. Brief facts of the prosecution case are that on prior information that a person by the name of Qasim Khan has concealed huge quantity of heroin in the suit-case and was going to smuggle it abroad from Peshawar Airport through Flight No,QR-347, Sardar Abdul Wahid, Inspector along with A.N.F. Staff rushed to the Airport and on reaching there deployed to A.N.F. Staff at the Airport and kept the passengers under watch when at 9-30 a.m. a person carrying a suit-case of grey colour came towards the A.N.F. Counter. He was intercepted for the purpose of checking and on query he disclosed his name as Qasim Khan son of Hashim Khan resident of Painda Khel Charsadda. He was asked to open the suit-case for the purpose of checking who took out key from his pocket and opened the suit-case which was apparently containing the daily use articles but on thorough checking of the bottom and lid of suitcase was found double and on the removal thereof with the help of screw driver from the inner side recovered six plastic envelopes containing heroin while from the bottom four plastic envelopes containing heroin were recovered. On weighment, each packet came out containing 400 grams. The total weight was found to be four kilograms. A sample, of 5 grams from each packet for chemical analysis was separated and packed and sealed in parcels Nos.1 to 10 while rest of the heroin along with plastic envelopes were sealed in parcel No,11.

From the personal search of the accused, Passport, Air Ticket, I.D. Card, 900 American Dollars Rs.1,120, one mobile phone were taken into possession vide recovery memo. Exh.P.W.1/1 and Murasila Exh.P.W.1/2 was drafted and sent to the police station for registration of the case against the accused. On completion of the required investigation, challan was submitted in the Court against the appellant, where copies of the relevant documents as required under section 265-C, Cr.P.C: were provided to him. The charge was accordingly framed against the appellant to which he pleaded not guilty and claimed trial.

3. The prosecution in order to prove the charge and substantiate the allegations levelled against the appellant produced four witnesses at the trial. Inspector Abdul Waheed is P. W.1. He is complainant as well as Investigating Officer. His executions have already been referred in the foregoing paragraph. Muharrir Ashfaq Hussain P.W.2 has incorporated the contents of Murasila Exh P.W.1/2 into F.I.R. Exh.P.W.2/1. Kashif Javed F.C. Is P.W.3. He is eye-witness of the occurrence as well as marginal witness of the recovery of four kilograms heroin from the appellant vide recovery memo.

Exh.P.W.1/1 and has deposed on the lines similar to Inspector Abdul Wahid (P.W.1). Muhammad Ali F.C. Is P.W.4. He has taken the samples to Forensic Science Laboratory, Rawalpindi and on return has handed over the endorsed receipt to the Muharrir. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Who professed innocence false implication in the case but opted not to record his statement on oath in terms of section 340(2), Cr.P.C. And did not produce evidence in his defence. The learned trial Court after hearing the parties and perusing the evidence, convicted and sentenced the appellant in the terms as stated above. Feeling aggrieved with the conviction and sentence, the appellant has come to this Court by way of the instant appeal.

4. We have heard the learned counsel for the parties and have gone through the record.

5. The learned counsel for the appellant vehemently argued that the appellant is innocent and was falsely implicated despite of the fact that nothing was recovered from his personal possession and was not arrested from outside the Departure Hall, otherwise Boarding card would not have been recovered from him; that the prosecution evidence is not supported and confirmed from any independent source or any official or any other agency present at the Airport. That the prosecution having failed to bring home charge to the appellant, he is entitled to acquittal.

6. As against that, the learned counsel appearing for the State submitted that the accused was arrested on the spot along with the sui case wherefrom four Kgs. Of heroin was recovered with the key provided by the appellant and that when the appellant disclosed that the heroin belonged to Rabia Gul sitting in the Departure Hall, Boarding Card for him was obtained but therein Rabia Gul could not be found, therefore, on the basis of the Boarding Card, the appellant cannot claim that he was screened before entering into Departure Hall; that because of recovery of heroin from the appellant, presumption under section 29 of the C.N.S.A. Could not be shattered by the appellant either through the cross-examination of the P.Ws. Or by producing evidence in his defence.

Therefore, the impugned judgment and order, dated 18-10-2008 be maintained by dismissing the instant appeal.

7. The contention of the learned counsel for the appellant that the recovery of four Kgs. Heroin was not effected from the appellant is belied by the statement of the Inspector Sardar Abdul Wahid (P.W.1) and Kashif Javed F.C. (P.W.3) who have claimed that the key of the suit-case was provided by the appellant and in the cross-examination the handing over of the key by the appellant to the aforesaid P.Ws. Was not questioned by the appellant. So far as the Boarding Card is concerned, the same was obtained by the prosecution for the appellant to arrest on his pointation Rabia Gul declared by him to be the owner of the heroin.

' From the personal search of the appellant, his Passport Exh.P.2, Air Ticket Exh.P.3., National Identity Card Exh.P.4, 900 American Dollars Exh.P.5, Pakistan Currency of Rs.1,120 Exh.P.6, one Mobile Phone Exh. P.7 were recovered and the samples separated from the heroin were declared to be heroin by the Chemical Examiner, Government of Punjab vide report Exh.P.W.1/8. Neither such huge quantity of heroin can be planted by the pthsecution against the appellant nor any enmity or grudge against. The prosecution witnesses was claimed by the appellant for plantation of such a huge quantity of heroin.

8. We after having minutely gone through the evidence of the prosecution on record and having meticulously thrashed the same are of the considered opinion that the appellant was arrested on the date, time and place as alleged by the prosecution. No material contradiction or discrepancy has been brought on record to shatter the credibility of the prosecution evidence and in the absence of enmity/grudge of the P.Ws. With the appellant there is no possibility of planting of such a huge quantity of narcotics by the prosecution. The prosecution witnesses have fully supported and corroborated its case with their cogent, solid and confidence inspiring deposition and have proved the guilt of the appellant beyond reasonable doubt. Therefore, no exception can be taken to the well-reasoned judgment of the learned trial Court.

9. Consequently, this appeal is dismissed being without merit or substance.