NIAZ-UD-DIN Versus State

TASSADUQ HUSSAIN JILLANI, J.-- - This petition for leave to appeal is directed against the judgment, dated 28-1-2004 passed by a learned single Judge of the Lahore High Court vide which the conviction of the petitioner by the trial Court (Judge, Special Court, C.N.S. Rawalpindi) was upheld, in terms of which the petitioner was convicted under section 9(c) of the Control of Narcotics Substances Act, 1997 and sentenced to 10 years' R.I. as also to pay fine of Rs.50,000 and in default whereof to undergo further R.I. for six months. The benefit of section 382-B, Cr.P.C. was also extended.

2. The prosecution story was that on a source report a raid was conducted by A.N.F. officials, which included Mubarik Ali Khan, Inspector, P.W.l, Shahzad Ali Kawish, Inspector P.W.5 and Tajamal Hussain, Constable P.W.3. The appellant was apprehended pursuant to a raid from the Bus Stand (3-10 p.m.) and a black colour bag was recovered from him, which contained 5 packets (weighed 5 kilo grams), which were sent to the Chemical Examiner. The contents of which were found to be heroin in terms of the report submitted by the Chemical Examiner.

3. During trial the prosecution examined six witnesses. The accused when examined under section 342, Cr.P.C. denied the prosecution story and submitted that he was arrested from his house on the fateful day by the officials of A.N.F., that he was beaten, as a consequence whereof he received injuries. He added that he was doing lawful business of spare parts in Peshawar and in connection with purchases, he came to Rawalpindi and was carrying Rs.1,90,000 for the said purpose. He added as under:--

"I was forcibly beaten up by the P.Ws. with Dandas/clubs/sticks and out of immeasurable pain my shrieks attracted Iqbal Shah an immediate neighbourer, who too requested the assailants referred above not to treat me inhumanly and to stop belabouring me with sticks/clubs. In the Police Station A.N.F. Rawalpindi I was coerced to show my involvement with Haji Fateh Muhammad or to admit to be his crony. I persistently resisted the frivolous persuasion for involvement of a person whom I have no liaison. I am living my life right in accordance with injunctive order of Qur'an and Sunnah and never ever indulged myself in any sinful activity. Peoples of vicinity at Rawalpindi and my place of abode in Peshawar and permanent place of residence i.e. Jamrood and endorsing the factum cited by me above for my past and present that the same is transparent. I detest narcotics to the hilt and performance of Islamic tenants is permeated in my blood. On the following day, I was produced by Mr. Shehzad Kawish, P.W. before this Honourable Court, I was badly injured having serious injuries on my person with blunt weapons i.e. sticks/clubs. Seeing my precarious condition this Honourable Court. I was having serious injuries on my person that is why C.W. Dr. Zain-ul-Abdin directed Mr. Shehzad Kawish to take inc before the Surgeon for evaluating the nature of injuries but he did not do so nor produced me before the Radiologist for obtaining the result of my injuries as I was having fracture due to merciless beating of the aforesaid P.Ws. This Honourable Court was pleased to summon Dr. Zain-ul-Abdin, C.W. 1 and he confirmed the factum of merciless beating to me. I am innocent, adultered material was foisted against me to usurp the huge sum/money i.e. Rs.1,90,000 and to further conceal their naked aggression, torture and merciless beating to me which is proved on record."

He also produced two defence witnesses namely D.W.1 Mst. Noor-ul-Ain Ali and D.W.2 Iqbal Shah. Both the witnesses stated that petitioner was arrested from his house and that no heroin was recovered from him.

4. Learned counsel for the petitioner submitted that it was a false case, that police arrested the petitioner prior to the registration of the case and they wanted him to make a confession for his involvement in the illicit business of drug trafficking of Fateh Muhammad and on his refusal a false case was planted against him.

5. Learned Assistant Advocate-General vehemently argued the case and supported the impugned judgment. On Court query he admitted that petitioner is not a previous convict.

5-A. The prosecution story consists of officials of A.N.F. namely P.W.1 Muhammad Ashraf, P.W.2 Shaukat Ali, A.S.-I. P.W.3 Tajammal Hussain, P.W.4 Mubarak Ali Khan, P.W.5 Shahzad Ali Kawish and P.W.6 Asad Mahmood. All of them have implicated the petitioner to have been apprehended from the Bus Stand in broad-daylight with a bag containing heroin which weighed 5 Kgs. Admittedly none of the prosecution witnesses had any enmity with the petitioner nor was it ever suggested. In absence of that, there is no reason why he should be falsely implicated. Their, statements remained consistent on all material particulars despite lengthy cross-examination to which they were subjected. In these circumstances we do not find any illegality in the A concurrent finding of petitioner's guilt. The impugned judgment, therefore, is unexceptionable and the conviction does not call for any interference.

6. However, coming to the question of sentence we note that it has been conceded by learned A.A.-G. that petitioner is a previous non-convict and there is no other instance of petitioner's involvement in drug trafficking. It has also been brought in evidence that at the time of this arrest he met custodial violence and on that account he received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer. In these circumstances petitioner needs to be given a chance in his life to rehabilitate himself.

7. Accordingly while dismissing the appeal we are persuaded to reduce the sentence of imprisonment of petitioner from 10 years to six years. Order accordingly.

S.M.B./N-11/SC ???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.