MUHAMMAD NASIM BUTT Versus STATE
ORDER
1. MUHAMMAD AFZAL ZULLAH, C.J. ‑‑‑The petitioner/convict under the Prohibition (Enforcement of Hadd) Order, 1979 with award of sentence of life imprisonment whipping and heavy fine has sought leave to appeal.
2. The prosecution case as contained in the testimony of group leader in the raiding party Azizullah Qalander Bux P.W.4, is as follows:‑‑
3. "On 17‑7‑1988, I was posted at Defence PNCB Station Karachi as a group leader. I know Liaquat Ali Zaidi. He is Field Investigation Officer. I also know Abdul Nabi Solangi, who is also Field Investigation Officer. Both were posted alongwith me at that time. On that date, I alongwith Abdul Nabi Solangi, Liaquat Ali Zaidi, Irshad Memon and others went towards Metropole Hotel in our official vehicle bearing Reg. No34‑64, in connection with the anti‑narcotics duty. We reached there at about 4‑30 p.m. There Liaquat Ali Zaidi received spy information that one Suzuki car bearing No.250‑262 with two persons was to pass towards Sheraton Hotel, carrying substantial quantity of heroin powder. We, accordingly, surrounded the area and at about 5‑00 p.m. we saw the said Suzuki car and so the same was stopped, near the Commissioner office. the vehicle was stopped by Liaquat Ali Zaidi. He introduced himself to the persons occupying the said car, who were two in number. One disclosed his name as Naeem Butt and was occupying the driver seat, while the other sitting on the side seat, disclosed his name as Noor Jan Magsi. Naeem Butt present in Court is the same.
4. On the rear seat of the said car, two suit‑cases were kept and which were owned by Noor Jan. Both were got opened through Noor Jan and the same contained 25 cloth bags each. Each such bag was also opened and the same found to be containing heroin powder. There was a plastic packet inside the cloth bag. One suit‑case was found in the dikki of the car and the same on inquiry was said to be of. Naeem. The dikki was also opened by Naeem.15 cloths bags were found in the said suit‑case lying in dikki and the same also contained heroin powder. I do not exactly remember due to lapse of time, but each cloth bag had also either plastic packet, or brown colour paper packet wherein the powder was kept. Each cloth bag was weighed and found to contain one kilogram each. 5 grams powder was taken out from each bag as sample. All the 65 bags secured from three suit‑cases in all had 65 kilograms powder. Both those persons were also searched in person. One NIC and Rs.50 were secured from Noor Jan, while Rs35 were secured from the person of Naeem. Entire property was then sealed at the spot. Both accused were arrested. A memo. to this effect was prepared at the spot. The Mashirs who witnessed this process were Tariq and Malik Ashraf. These two private Mashirs were picked up from the road near by the wardat. The Mashirnama was also signed by these two Mashirs. Entire proceedings of recovery, arrest etc. was made in my presence. The recovered material as also the cat were taken in possession by the I.C. I see Exh.10 and say that it was prepared and signed in my presence. I also see NIC of Noor Jan as Exh.12 and say this is the same. Suzuki car parked outside the Court is also the same. The suit‑cases containing 65 cloth bags shown to me now in Court are also the same. Liaquat Zaidi recorded my statement."
5. The co‑accused of the petitioner allegedly absconded after the arrest on account of, as it is further alleged, a liaison between him and Liaquat Zaidi P.W. 7. another member of the raiding party. It is not known whether he was tried with the petitioner or what has happened to the case against him. The learned A.O.R. has also remained unaware about it. Learned counsel for the petitioner has argued that the reappraisal of the evidence is required in this case for the following amongst other reasons:‑‑
6. It is unnatural that a culprit world own/accept the ownership of a heavy narcotic material in the circumstances alleged by the prosecution; that two Mashirs who could be treated as independent did not support the prosecution case; that one of the officers of the Pakistan Narcotic Control Board; namely, Liaquat Zaidi himself has helped the co‑accused of the petitioner in slipping away from custody. This being the state of the integrity of the prosecution witnesses they could not be relied upon with regard to the culpability of the petitioner; that the narcotic material was expected to be handed over to somebody in or around the Sheraton Hotel but no effort was made to arrest or even discover him; that inadmissible piece of evidence; namely, that the petitioner admitted the ownership of 15 Kgs. of heroin before police was not excluded from consideration; and lastly that if the said inadmissible evidence is excluded there is no evidence that the petitioner owned the heroin and that being so, he should have been adjudged only as a carrier and punished accordingly. In this behalf some judgments of this Court were cited They are:
(1) Nadir Khan v. The State 1988 SCMR 1899, (2) Muhammad Rafique v. The State 1990 SCMR 602 and (3) Bonifacio A Burayag v. The State PI.D 1991 SC 988.
7. None of the arguments of the learned counsel has any force. It is not unusual in the peculiar circumstances of this case that one culprit amongst the two who is less hardened would have accepted the ownership of lesser quantity of heroin so as to avoid further proceedings in the hope of seeking favours during investigation or for that matter seeking lenient view of the matter during the trial The fact that two Mashirs were stated to be independent, did not support the prosecution does taffy well and reasonably with the fad that 65 Kgs. of heroin involved very big stakes for the culprits and temptations for several others including the prosecution witnesses. This circumstance can also be treated as a corroboratory material in so far as the prosecution evidence is concerned. To say the least there was sufficient indication of attempt at winning over the witnesses. Similar is the position with regard to Liaquat Ali Zaidi. Why the man in or around Sheraton Hotel was not apprehended or even discovered again relates to the attitude of the investigating agency in this case particularly when there is a serious allegation that one of the officers had soft corner for one of the accused ‑‑ it is not known since when. And if it was relatable to period prior to this occurrence much more could then be suspected to have been done in this ease. And lastly, even if the statement made by the petitioner before the witnesses during the raid is accepted as a confessional statement before the police though it might have been treated as conduct, is excluded from consideration there is enough evidence in this case on the present record that the petitioner was not a mere carrier. His version of having met an accident, when he was driving the Suzuki car, with the vehicle of Pakistan Narcotic Control Board is not acceptable either. He has, in our view, rightly been convicted for the offence.
8. On the question of sentence it would suffice to say that the petitioner has not come out with the whole truth if at all he was a carrier. With these remarks no justification has been made out for interference. Leave to appeal, therefore, is refused
9. AA‑/M‑1690/S Leave refused.