NOORUL HAQ Versus THE STATE
ABDUL RAZZAK A. THAHIM, J .---Appellants, Noorul Haq and Abdul Hakeem, have been convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 34/35. P.P.C. by learned Sessions Judge,. Karachi vide judgment, dated 21st August, 1990 and have been sentenced to undergo R.I. for ten years with fifteen stripes and fine of Rs. one lac each, in case of default of fine they shall suffer R.I. for two years more.
2. Noorul Haq filed Criminal Appeal No. 63/K of 1990 through his counsel Mr. Azizullah Shaikh. Convict Abdul Hakeem's representation was admitted as Jail Criminal Appeal No.78/K of 1990. Both convicts were given suo motu notice for enhancement of sentence and such matter is registered as Criminal Sou Motu No.104/K of 1990. Mr. Abdul Waheed Siddiqui, counsel was appointed to defend convict, Abdul Hakeem, at State expense.
3. We propose to dispose of these three matters by this single judgment as case is same and they have been convicted by a common judgment, dated 21-8-1990.
4. The facts of prosecution case are- that on 24-5-1988 F.I.O. Ghulam Muhammad Shaikh of Pakistan Narcotics Control Board, Police Station North Nazimabad, Karachi received spy information that one white Toyota Crolla car having No. 188-782 will be passing through Nagan Chowrangi, Buffer Zone, Karachi in which heroin will be transported. On getting this information the party consisting of Ghulam Muhammad Shaikh, F.I.O., Mashirs Muhammad Sharif and Muhammad Iqbal and other staff was constituted. The raiding party headed by Group Leader, Manzoor Ali Rana of Pakistan Narcotics Control Board, Karachi came at Nagan Chowrangi Karachi. When at about 4-00 p.m. the car reached and was encircled. '1 'he car was stopped, out of which three persons including driver came out and they disclosed their names as Noorul Haq, Abdul Hakeem, and Turbaz Khan. The car was being driven by Turbaz Khan. Appellant Noorul Haq was sitting near the driver's seat while Abdul Hakeem, was on rear seat of the car. The search was conducted and one cloth `Thaili' containing one kilogram heroin was recovered from beneath the driver's seat and 4 gunny bags containing 25 cloth `Thailis' were recovered from diggi of the car which was opened with key supplied by .Turbaz Khan. In all 100 `Thailis' having one kilogram in each `Thaili' were recovered. Samples were taken from all the `Thailis' and put into sealed parcels. A case under Articles 3 and 4 of the Prohibition Order was registered on same day i.e. 24th May, 1988 at 18-00 hours. The case was challaned after usual investigation.
5. During investigation Turbaz Khan was not challaned and was let off but subsequently, learned Sessions Judge took the cognizance on application of public Prosecutor. He is absconding.
6. Charge against Abdul Hakeem, and Noorul Haq was framed under Article 3/4 of the Prohibition Order on 5th January, 1989 to which they pleaded not guilty and prosecution examined P.W.I Manzoor Ali Rana, Group Leader, Pakistan Narcotics Control Board, Court Witness Ghulam Muhammad Shaikh, F.I.O., P.W.2 Muhammad Iqbal, Mashir, P.W.3 Muhammad Sharif, Mashir and P.W.4 Ghulam Muhammad, F.I.O. Pakistan Narcotics Control Board.
7. The statements of convicts/accused Noorul Haq and Abdul Hakeem were recorded under section 342, Cr.P.C. and they have also given statements on oath as required under section 340(2), Cr.P.C. in disproof of charges. They have not examined any person in their defence.
8. P.W.1 Manzoor Ali Rana has stated that on 24-5-1988 he was posted as Incharge Group Leader at Police Station, P.N.C.B. situated at `F' Block North Nazimabad, On that day F.I.O. Ghulam Muhammad who was posted at his Police Station received spy information and he discussed the same with him. They prepared a raiding party consisting of 15/16 employees of their department posted at Karachi. They arranged Mashirs, Muhammad lqbal and Muhammad Sharif. The raiding party left Police Station at about 1-30 or 2-00 p.m. and arranged for picking at Nagan Chowrangi, Buffer Zone, North Nazimabad, Karachi. At that place they contacted special spy and came to know through him that one Toyota Crolla with 3/4 passengers therein and heroin was passing through that point while coming from Karachi city and going to Super Highway Afghan Muhajir Camp. The number of vehicle was disclosed as 188-782. Round about 4-00 p.m. the said Car No. 188-782 with three passengers reached that point and on seeing vehicle the raiding party blocked the way and encircled the Toyota Crolla. The car stopped and on query passengers sitting inside the car disclosed that they were coming from Karachi City and proceeding towards Afghan Muhajir Camp, situated on Super Highway. The driver on inquiry gave his name as Turbaz Khan. He was directed to come down from the car. The passengers who were available disclosed their names as Noorul Haq and Abdul Kakeem. The diggi was searched in presence of Mashirs from where 4 gunny bags were recovered. On opening bags, each bag contained 25 `Thailis'. In all hundred `Thailis' were recovered from 4 bags and each `Thaili' contained one kilogram of Heroin. Total weight was 100 kilograms in all. From inside the car one `Thaili having one kilogram was recovered from beneath the seat of driver., Five grams from each `Thaili' were taken as samples and put into sealed parcels. They prepared Mashirnama of recovery and arrested accused. He produced Mashirnama as Exh.P/1. He has stated that the third accused was let off under section 169, Cr.P.C. by the Investigating Officer. He identified the property in Court. He was put very few questions in cross-examination on behalf of appellant, Noorul Haq and was suggested that Noorul Haq was arrested on 23rd May, 1988 at about 1-00 p.m. from Kharadar while he was coming from a doctor. This suggestion was denied by this witness, Manzoor Ali Rana. P.W.2 Muhammad Iqbal (Exh.13) has stated that on 24-5-1988 he was present at Nagan Chowrangi when at about 4.00 p.m. one car came from the side of city to which Narcotics walas gave signal. The driver tried to run but Norcoticswalas managed to get it stopped and directed the man on driver's seat to come out. From beneath the seat of driver one 'Thaili' containing heroin was recovered and there were two other passengers in that car who are present in Court. But nothing was secured from the possession of those two accused. He has stated that driver of the car having a key opened the diggi from which 4 gunny hags were recovered. Each gunny bag contained 25 `Thailis' of heroin therein. The Narcoticswalas prepared samples and put into sealed parcels. The remaining heroin was also put into sealed parcel. Mashirnama (Exh.P./1) was prepared which he signed. The Narcoticswalas then arrested three accused. He was taken to Police Station North Nazimabad where he signed at `Thailis'. His statement under section 161, Cr.P.C. was recorded by F.I.O. Ghulam Muhammad. P.W.3 Muhammad Sharif (Exh.16) has stated that he is taxi driver and incident of this case took place or. 24-5-1988. He was called by police at P.N.C.B. from Tin Hatti. He reached the Police Station at 12-00 noon and was detained there upto 3-00 p.m. The police party left Police Station towards Nagan Chowrangi. He was with police party. His taxi was being driven by policewalas. He was with F.I.O. who informed them that white coloured Crolla car of 1975 Model was to pass through that point. He has stated that at about 4-00 p.m. that car reached there and police stopped the car and took search and from beneath the seat of driver one `Thaily' containing heroin was recovered. The Policewalas asked the driver to open diggi. He opened it and from diggi 4 gunny bags were recovered. The heroin was weighed and such Mashirnama was prepared. Then three accused and recovered heroin were brought to Police Station. The samples were taken and he signed at Police Station. He has stated that Muhammad Iqbal came after him and at the time of raid they all were together. He has stated that after reaching police station samples were again signed by him. Police obtained his signature on the `Thailis'. He identified the property and two accused. P.W.4 Ghulam Muhammad Shaikh has stated that on 24-5-1988 he was posted as F.I.O. at P.N.C.B., Police Station North Nazimabad. He received spy information regarding arrival of a car at Nagan Chowrangi North Nazimabad, Karachi. He arranged private Mashirs, namely, Muhammad Iqbal and Muhammad Sharif. Thereafter he alongwith Group Leader Manzoor All Rana, Mashirs and other subordinate staff left Police Station at about 2-t10 p.m. They reached Nagan Chowrangi and waited for arrival of suspected car bearing No.188-782 Toyota Crolla Model 1975. At about 4-00 p.m. they observed a white car approaching from the side of town. They stopped the car and found three passengers in the car. On inquiry driver disclosed his name as Turbaz Khan while remaining passengers gave their names as Noorul Haq and Abdul Hakeem. He has stated that Noorul Haq was sitting by the side of driver on front seat while Abdul Hakeem was sitting on the rear seat. They directed all the three passengers including driver to come down. They searched the car and from beneath the seat of driver one `Thaili' containing heroin was recovered. He directed Turbaz Khan to open diggi and from diggi 4 gunny bags were recovered. On opening each gunny bag having 25 Thailis' of heroin were recovered. The total weight of 100 `Thailis' was 100 kilograms. Three accused were taken into custody. The samples of five grams were taken from each `Thaili' and put into sealed parcels. The Mashirnama was attested by Muhammad Iqbal, Muhammad Sharif and Manzoor Ali Rana. Then they alongwith accused reached police station and he lodged complaint on behalf of State. He stated that he during personal search of accused Noorul Haq secured one wrist watch and some cash and from Abdul Hakeem one driving licence and some receipts of his show room with some cash and from possession of Turbaz Khan his National Identity Card, wrist watch and some cash were recovered and such Mashirnama (Exh.P/3) was prepared. The samples were sent to Islamabad for examination and report. He produced Chemical Examiner's Report as Exh.P/5. Then he examined prosecution witnesses under section 161, Cr.P.C. and on completion of investigation challan was submitted in the Court. He has stated that one of the accused, Turbaz Khan, driver, was released by him under section 169, Cr.P.C. Therefore, only two accused, namely, Noorul Haq and Abdul Hakeem, were challaned and are present in Court. He has stated that in spite of best efforts he could not execute non-bailable warrants on Turbaz Khan. This witness was also examined as Court witness and his evidence is as Exh.P.12. He stated that he received N.B.W.S. of Turbaz Khan who was required in Sessions Case No. 82/88 of which he was Investigating Officer. He has stated that earlier he served notice of the Court on accused, Turbaz Khan. He could not serve non-bailable warrants on Turbaz Khan as he was not available and his whereabouts are not known. He stated that he was hundred per cent sure that Turbaz khan could not be arrested because nobody knows his whereabouts. He returned unserved non-bailable warrants and produced as Exhs.12-A and 12-B.
9. Appellant, Abdul Hakeem, in his statement under section 342, Cr.P.C. has denied the allegations and stated that police arrested him on 23-5-1988 from Shershah and was brought to Police Station where number of persons were present at Police Station who were not known to him. He remained confined in lock up for 4/5 days. He was maltreated, on refusal to sign papers, by police. He has stated that co-accused Noorul Haq was not known to him but he was sent to jail alongwith him. His brother came to Police Station to meet him and he told him that police obtained his signature from him forcibly. His brother moved an application before Excise and Taxation Officer but he could not get certified copy of that application but produced reply of E.T.O. (Exh.D/1) alongwith photostat copy of application. He in statement under section 340(2), Cr.P.C. on oath has stated that he had no concern directly or indirectly in false case and he is innocent. In cross-examination he has stated that he had no enmity with Narcotics Control Board but voluntarily stated that he had enmity with Pathans and he was arrested on account of other Pathans at their instance. The Pakistan Narcotics Control Board had no enmity with him.
10. Appellant, Noorul Haq, in his statement under section 342, Cr.P.C. has denied the allegations and stated that he is innocent. He was arrested on 23rd May, 1988 from the neighbourhood of a doctor's clinic in Kharadar. He has stated that police recovered Rs.100 and his wrist watch at the time of his arrest and he has been implicated due to enmity with Pathans. He in his statement under section 340(2), Cr.P.C. in disproof of charges has stated that he has not committed any offence subject-matter of this case. He is innocent. His brother, Hadaitullah Shah contested election of Local Bodies in Karachi. The Pathans who were opposing his brother contacted Turbaz Khan who involved him in this case. In cross-examination he has stated that he has no enmity with Pakistan Narcotics Control Board and they also have no enmity with him.
11. We have heard Mr. Azizullah Shaikh, counsel for accused, Noorul Haq. He has argued that Noorul Haq, was arrested one day prior to the incident i.e. 23-5-1988 and false case has been filed and in alternate he submitted that prosecution has not proved conscious possession of the appellant as allegation against him that he was only present in car. He has referred two cases reported in 1988 S C M R 1899 and 1991 P Cr. L J 488 and submitted that appellant is innocent. He has argued that Investigating Officer, Ghulam Muhammad, has not conducted investigation honestly and thus Court has passed remarks against him. He has also argued with regard to enhancement of sentence that appellant is not previous convict, therefore, sentence may kindly not be enhanced. Mr. Abdul Waheed Siddiqui, counsel for appellant, Abdul Hakeem, has adopted the arguments of Mr. Azizullah Shaikh and submitted that material secured from the car is not heroin and case has not been proved, therefore, the question of enhancement of sentence does not arise.
12. There are 4 witnesses in this case, namely, Manzoor Ali Rana, Group Leader, Pakistan Narcotics Control Board (Exh.8) Mashirs Muhammad Iqbal (Exh.13) and Muhammad Sharif (Exh.16) and F.I.O. Ghulam Muhammad Shaikh (Exh.17). The evidence of these witnesses is that Toyota Crolla car Model 1975 bearing No. 188-782 was intercepted at Nagan Chowrangi which was being driven by Turbaz Khan while Abdul Hakeem and Noorul Haq were sitting in car and from search one `Thaili' of one kilograms heroin was secured beneath the driving seat and 100 kilogram of heroin in four bags was secured from the diggi. The heroin was kept in 4 bags and each bag contained 25 `Thailis'. These 4 witnesses have unanimously supported the recovery and stated that the above-said car came at Nagan Chowrangi in which three persons were sitting and heroin was recovered. In cross-examination defence has only put question regarding recovery of articles from driver, Turbaz Khan and it is stressed upon that Ghulam Muhammad, F.I.O., Pakistan Narcotics Control Board let off main accused, Turbaz Khan after receiving huge amount to the tune of rupees ten lacs. These suggestions have been denied by the witness. The case advanced by both convicts in defence is that they were arrested one day prior to incident and This false case was filed against them at the instance of Turbaz Khan and they were involved because, according to Noorul Haq, some Pathans had enmity with his brother, Hadiatullah Shah on Local Bodies election. Muhammad Iqbal, Mashir is private person and his occupation, according to his statement, is a cloth-seller. He has stated on oath that 101 (sic) kilograms of heroin was recovered from car in which appellants and Turbaz Khan were present. It was suggested to him that he was deposing falsely at the instance of F.I.O. Ghulam Muhammad. This suggestion was denied by Mashir, Muhammad Iqbal. The appellants have not shown any enmity with this witness. Likewise second Mashir, Muhammad Sharif, who is Driver by profession, has supported and he has no enmity with appellants. P.W.4 Ghulam Muhammad is complainant. He has supported the case. The trend of cross-examination was that he usurped valuable articles of Turbaz Khan and released him. It was also suggested that he was wearing valuable ring at the time his statement was recorded perhaps showing that he is not honest. In the cross -examination a certificate regarding the ownership of the car was sought from this witness and he produced some letters by which delivery of the car was taken by convict, Abdul Hakeem. It was suggested that after receiving Rs. ten lacs, he released Turbaz Khan which he denied. But in such lengthy cross-examination appellants have not been able to show that this witness had any reason to implicate appellants falsely. In statement under section 342, Cr.P.C. appellant, 1 Abdul Hakeem, has stated that on 23rd he was brought at the Police Station and `~ there were so many persons available. He was confined for 4/5 days and maltreated on his refusal to sign the papers and he alongwith co-accused Noorul Haq was sent to jail. In his statement on oath he has stated as under:-
"I have got no concern directly or indirectly in this case. This is a false case against me. I am innocent."
In cross-examination he has clearly stated that he had no enmity with P.N.C.B. staff but he had enmity with Pathans and P.N.C.B. people had no enmity with him. Appellant, Noorul Haq, in his statement under section 342, Cr.P.C. likewise denied the allegation and stated that witnesses have deposed against him due to enmity of Pathans. He is innocent and was arrested on 23rd May, 1988 from the neighbourhood of doctor's clinic at Kharadar. He examined himself under section 340(2), Cr.P.C. and stated as under:-
"I have not committed the offence subject-matter of this case. I am innocent. My brother, Hadiatullah Shah had contested the election of Local Bodies in Karachi. The Pathans who were opposing my brother contacted Turbaz Khan who involved me in this case."
In cross-examination he has stated that he has no enmity with P.N.C.B. staff and they have also got no enmity with him. The reason for false involvement has been explained that Noorul Haq was involved due to electron dispute of his brother. Hadiatullah. He has not examined his brother or any other person in his defence to show that who were enemies of his brother, Hadiatullah. He has not examined his brother to support his contention. In the same manner Abdul Hakeem has also not shown enmity with any Pathan specifically. The name of enemy has also not been disclosed. Some, minor immaterial contradictions cannot help appellants when it is proved that appellants were found in car from which 101 kilograms heroin was secured. The evidence of four witnesses cannot be discarded. The car is not a public carrier and to some extent it has come in evidence at the suggestion of defence that car belongs to one of the co-accused, namely, Abdul Hakeem. The plea of appellants that they were arrested one day prior to incident has not received any kind of corroboration from any circumstance. In their statements on oath both the convicts have not stated that they were arrested one day prior to the incident and in statement under section 342, Cr.P.C. appellant, Abdul Hakeem, has not given the month and year of his arrest but stated that police detained him for 4/5 days after his arrest and was arrested on 23rd. Thereafter he and Noorul Haq were sent to jail. This version has been falsified by the statement of Noorul Haq. If they remained 4/5 days in police custody then how their arrest was shown on 24th on the day of incident. Appellant, Noorul Haq, has not examined his brother, Hadiatullah Shah, who is alleged to have contested election against Pathans. His brother has not made any application against Pakistan Narcotics Control Board. They have also not disclosed the names of Pathans with whom they had enmity. They have only stated that they had enmity with Pathans and at their instance Turbaz Khan implicated them. This story is not believable. We are of the view that recovery from car in presence of four witnesses is proved. There is simple denial on the part of accused, which is not sufficient to discard the evidence of four witnesses.
13. Now we come to the cases cited by Mr. Azizullah Shaikh, learned counsel. He has referred to case of Nadir Khan and another v. The State, reported in 1988 S C M R 1899. In this case two persons, namely, Sadiq Jan and Nadir Khan were travelling in a car which was intercepted and heroin was recovered from the rear seat of the car and from 6 secret cavities. The trial Court convicted these persons. The conviction was maintained by Federal Shariat Court in Criminal Appeal No.91 /L of 1987 decided on 23-12-1987. Both convicts filed Criminal Petition No.11-R(S)/1988 for grant of special leave to appeal. The pica taken by one of the accused, Nadir Khan, was that driver brought him to Lahor e instead of taking him to Swat. Leave was not granted and their Lordships considered all the points and held that there is possibility or presumption are all dependent on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually stregthens that conclusion rather than weakening it.
14. In the present case there is mere denial. Both appellants have denied their presence and not admitted to be present in the car but their presence is proved. In case of Said Shah and 2 others v. The State, reported in P L D 1987 SC 288 the facts were that one Suzuki having No-ADA-3453 was intercepted. The van was being driven by Altaf while one Ejaz was conductor. Said Shah was also with them. From van 400 bottles of liquor packed in crates were found. They all were. convicted. Each of them filed separate appeals bearing Criminal Appeals No.44/I/1985, No.45/I/1985 and No.53/I/1985, dated 8-4-1985. Their appeals were dismissed by the Federal Shariat Court. Then they moved Shariat Appellate Bench of Supreme Court and the Court came to conclusion that appellants were aware of the contents of crates. The leave to appeal was not granted. In case of ' Gul Saleem Shah v. The State reported in 1990 S C M R 321 three persons were challaned and convicted. The facts are that 110 kilograms of heroin in 5 bags was recovered from the cart and allegation was that one accused was sitting on the steering wheel while Gul Saleem Shah was sitting by his side on front seat and Shah Faiz Alam was occupying the rear seat. They were convicted by trial Court. The appeal was dismissed. They filed Criminal Petition No.66-R(S) of 1988 in Shariat Appellate Bench. The leave was not granted. The points taken in this application were different but in spite of that appellants did not challenge the conscious possession and it was not considered but the facts are identical to the present case that three persons were present in car and they all were convicted and appeals were dismissed by Federal Shariat Court. The same is the position in case of Syed Habibullah v. The State, reported in 1990 S C M R 313 when heroin was found from the house where three persons were present and they all were convicted. Though in this case in Appellate Shariat Bench (Supreme Court) some legal points were challenged but fact remains that they stand convicted and their conviction was maintained. We also refer to a case of Zahiruddin Versus The State, reported in P L D 1988 F S C 29. Mr. Shaikh has referred to a case of Iftikhar Ahmad alias Bobi and another v. The State, reported in 1991 P Cr L J 488. The facts of that case are different. The accused in that case were acquitted on contradictions and other grounds. We are fortified by the decision of the Shariat Appellate Bench (Supreme Court). There were some remarks passed against Ghulam Muhammad, F.I.O., who is also complainant in this case but we do not want to make any remarks as in this case appellants have not shown any kind of enmity with him.
15. Turbaz Khan was let off under section 169, Cr.P.C. but subsequently fie' was rightly joined as an accused by learned Sessions Judge and application was moved by the District Public Prosecutor. The notice of application was issued against Turbaz Khan. He appeared and was bound down to appear on next date of hearing. He did not appear. The learned Sessions Judge subsequently passed order by which he joined him as accused but he absconded.
16. In the present case huge quantity of heroin weighing 10 (sic) Kilograms was secured in heart of the city of Karachi. The sentence awarded in such serious offence was not adequate. Thus a show-cause notice was issued to both convicts as to why their sentences should not be enhanced. We are fully satisfied that sentence awarded is not proper. More than two maunds of heroin was found. In case of Nadir Khan and another v. The State referred to us, reported in 1988 S C M R 1899, it has been observed that lenient view could only be taken when accused confesses guilt otherwise it has been observed as under:--
"We have gone through the 'evidence on record and found that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being persons incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependent on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strenghens that conclusion rather than weakening it. As regards the lenient treatment to be afforded to the petitioners as mere carriers: It is one of the maxims of the criminal law that a confessing accused is to be dealt with leniently. There are reasons for it because though belated such a confession assists the administration of justice, lends credibility to the prosecution and helps locating the persons who have greater responsibilities in the matter than the criminal himself. But such leniency cannot be claimed or shown to a person who denies the commission of the offence itself to the end rendering no help to identify the real and major culprits and only resorts to it by way of an alternative argument to rely on being a helpless destitute: carrier. There is no principle on which
;, such a mitigation can be claimed after the mitigation allowed by the
Federal Shariat Court:'
We feel that this is a fit case for enhancement of sentence and the persons I who were dealing in narcotics and playing with the life of innocent people do not deserve any leniency. We, therefore, in exercise of suo Motu revisionsal jurisdiction under Article 203-DD of the Constitution enhance the sentence of both the appellants from ten years to life imprisonment but maintain fifteen strtipes and enhance the fine from Rs. one lac to Rs. three lacs, in default, both appellants to suffer R.I: for three years more.
17. Upshot of the above discussion is that Criminal Appeal No.63/K of 1990 and Jail Criminal Appeal No.78/K of 1990 are dismissed and in exercise of revisional jurisdiction in Criminal Suo Motu No.104/K of 1990 we enhance the sentence as stated above.
MA.K./620/FSC Appeal dismissed/Sentence enhanced.