MUHAMMAD RAMZAN Versus State

MUHAMMAD QAIM JAN KHAN, J.- This is a criminal appeal under section 48 of Control of Narcotic Substances Act, 1997 filed by Muhammad Ramzan against his conviction and sentence recorded by Judge Special Court (C.N.S.) Peshawar Camp Kohat on 28-6-2004 vide which the appellant has been convicted under section 9(c) C.N.S.A. and sentenced to life imprisonment and a fine of Rs.500,000 or in default of payment of fine to suffer further five years' S.I. However, benefit of section 382-B, Cr.P.C. has been extended to the appellant.

2. Short facts of the case are that on receiving prior information regarding smuggling of narcotics from tribal territory to down country, Muhammad Arshad Khan Inspector A.N.F. along with police party was present near Shaho Chowk and had barricaded the road. Another squad had also barricaded at Riasan Hangu-Tall Road. In the meanwhile, Truck No.DNA 6473 on which WAPDA was written appeared on the scene which was signaled to stop but the driver of the truck accelerated the speed and tried to make good his escape but he was chased and hauled up at Hangu-Tall Road near Togh Sarai. The other squad also reached the spot, The driver of the truck disclosed his name as Muhammad Ramzan son of Abdur Rashid Caste Rajput resident of Qilla Didar Singh District Gojranwala while the cleaner of the truck disclosed his name as Abdul Waheed son of Abdul Aziz Caste Awan resident of Havelian District Abbottabad. On cursory checking, some secret cavities were disclosed. So the truck was taken to Police Station A.N.F. Kohat along with the accused and from the secret cavities of the truck, Pukhta chars wrapped in plastic bags were recovered. There were 1665 packets and on weighing, it came to be 1665 kilogram chars. Small quantity of chars was separated from each packet and were sealed in parcels. Remaining chars was also sealed in 17 bags. Accused were arrested on the spot and a case vide F.LR. No.25 dated 22-9-1990 under sections 6, 7, 8 and 9 C. N.S.A. was registered against them in Police Station A.N.F. Kohat.

3. During investigation, the accused disclosed ten other people to be the co-accused. After completion of investigation, challan was submitted in Court. Five accused were brought before the Court who were charged under section 9 C.N.S.A. to which they pleaded not guilty and claimed Trial. Trial commenced.

4. It is to be noted that two of the co-accused are stated to have died while the remaining accused have been proceeded under section 512 Cr.P.C. and have been declared proclaimed offender.

5. The prosecution in order to prove its case examined almost seven P.Ws. and closed its case on 26-8-2003. Accused were examined under section 342, Cr.P.C. They pleaded innocence but neither opted to record their statements on oath nor produced any defence evidence in rebuttal. So after hearing the prosecution and defence, the trial Judge passed the aforementioned conviction and sentence.

6. This appeal was referred to a Bench of two Honourable Judges who after hearing the arguments of the learned counsel for the parties differed in their opinion. So the case was referred to this Court as Referee Judge.

7. I have heard counsel for the appellant and the State at length and with their help, have scrutinized the available record.

8. Learned counsel for the appellant mainly argued that no recovery has been effected from the appellant who is mere a driver and was not in the knowledge of the contraband. Further argued that the prosecution case is full of debts and contradictions and that the I.O. Muhammad Arshad Khan Inspector deliberately has not been examined by the prosecution and thus best evidence is not before the Court. Further argued that section 103, Cr.P.C. has not been complied with and mainly stressed that the samples certificates and destruction certificates have been issued by the Judicial Magistrate and not by the Judge Special Court. Thus the conviction and sentence is not in accordance with law.

9. Learned State counsel, on the other hand, mainly argued that huge quantity of narcotics has been recovered from the truck which was driven by the present petitioner Muhammad Ramzan and his co-accused Abdul Waheed cleaner. That the prosecution has proved the instant case beyond any reasonable doubt and there are no major contradictions in the statements of the P.Ws and that minor contradictions do not affect the prosecution version.

10. A bare perusal of the entire record clearly shows that the prosecution has proved its case against .the appellant beyond any shadow of doubt and the marginal witnesses were put to the test of cross- examination but nothing favourable to the defence came out from their mouth. As far as non-production of the Investigating Officer Muhammad Arshad Khan Inspector is concerned, the perusal of the order sheets clearly shows that on 2/3 occasions he was present but due to the absence of case property or other reason, his statement was not recorded. Later on, he had gone on long leave and as he was not available, the statement of other Inspector was recorded who was fully conversant with his signature and handwriting. So in no way best evidence has been curtailed by the prosecution.

11. As far as section 103, Cr.P.C. is concerned that has been excluded by section 25 of the C.N.S.A., 1997. Moreover, huge quantity of the contraband has been recovered from the secret cavities of the truck driven by the present appellant and his co-accused Abdul Waheed. In their statements recorded under section 342, Cr.P.C., they have admitted their presence at the relevant time in the truck but regarding the fact that they were not in the know of the narcotics which were wrapped in 17 bags, they desperately failed to prove this factum. The crucial objection of the learned counsel for the appellant that both the samples and destruction certificates have been issued by the Judicial Magistrate and not by Judge Special Court and thus the conviction and sentence is illegal, holds no ground because Judge Special Court has allowed the Magistrate by written order and this factum is present in his statement. Moreover, this issue can be termed as a mare irregularity and it cannot mar the entire prosecution case which is otherwise proved by cogent evidence. A bare reading of section 516, Cr.P.C. shows that only the word "Court" is written there. Having no reference to any special court but if we take this word "Court" as special Court, even then it cannot vitiate the proceedings being a procedural lapse, irregularity which can easily be ignored if' the case of the prosecution is otherwise proved.

12. In these circumstances, I am of the firm view that the prosecution has proved its case beyond any shadow of doubt and the conviction has rightly been recorded by the trial Court. As far as the sentence is concerned, I am fully aware of the fact that the appellant is a driver belonging to other province while the co-accused was a cleaner who belongs to Abbottabad. Narcotics is smuggled by the big birds but go scot-free and the persons plying the trucks or any other vehicles go in the clutches of law. Admittedly, the sentence under section 9(c), C.N.S.A. is death or life imprisonment but that is when the real offender comes to the clutches of law and in this part of the country, this is a common practice that the big bosses are sitting in a far-off safe area and for a few thousands or few hundreds rupees, the poor carriers are subjected to the rigours of law. The Court cannot close its eyes from. this eventuality and thus I am inclined that the sentence of the appellant be reduced from life imprisonment to ten years and the fine be reduced from Rs.500,000 to Rs.200,000 and in default thereof the appellant shall undergo further sentence of three months' S.-I. With this modification in the sentence of imprisonment and fine, the appeal is partially accepted.

Appeal partially accepted.

H.B.T./143/P Order accordingly.