MUHAMMAD ASLAM Versus State

SAYYED MAZAHAR ALI AKBAR NAQVI, J .---Muhammad Aslam son of Muhammad Sharif, caste Taili, resident of Sadaat Market, Kabirwala, District Khanewal, appellant, was involved in case F.I.R. No.19, dated 21-9-1998, registered offence under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order 4 of 1979, read with section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Kabirwala and was tried by learned Additional Sessions Judge/Special Judge, Control of Narcotic Substances Act, 1997, Kabirwala, District Khanewal, who vide judgment dated 17-4-2004, convicted the appellant under section 9(c) of the Act, and sentenced him to death with a direction to pay Rs.10,00,000 as fine and in default whereof, to further undergo two years S.I.

2. Feeling aggrieved by the judgment of the learned trial Court, the appellant impugned the same through tiling Criminal Appeal No.272 of 2004, whereas the learned trial Court forwarded Capital Sentence Reference No.2-N of 2004 for confirmation of the death sentence inflicted upon the appellant in terms of section 374, Cr.P.C.

3. As both the matters are arising out of the same F.I.R., therefore, we intend to dispose of the same through this single judgment.

4. The prosecution story as alleged in the F.I.R. (Exlt.PB/1) recorded on the written complaint (Exh.PB) of Muhammad Newaz S.I. (P.W.2) is that on 21-1-1998 the complainant along with Gul Muhammad A.S.-I. Faqir Muhammad A.S.-I, Abid Hussein 754/C, Umer Druz 848/C, Abdul Jabber 912/C, Nadeem Baig 699/C, Khan Baig 674/C, and Manzoor Ahmed 41/CD was present at Children Park Kabirwala in connection with investigation of case F.I.R. No.18, dated 21-1-1998 under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order IV of 1979. During interrogation Muhammad Aslam son of Muhammad Sharif, caste Taili, resident of Sadaat Market, Kabirwala, made disclosure that some intoxicant/narcotic was present in his house which he could get recovered. On this disclosure Muhammad Aslant accused himself led the police to his dera wherefrom the room on southern wall of his dera, he got recovered four packets of opium in golden colour weighing four kilograms, six packets of charas weighing 6 kilograms and 150 grams heroine, which was wrapped in different shoppers lying underneath the bricks. Out of the recovered narcotic, 10 grams of opium, 10 grants of charas and 10 grants heroine, was separated for chemical analysis. The complainant drafted complaint (Exh.PB) and sent the same to Police Station through Nadeem Baig 699/C for registration of formal F.I.R.

5. After registration of case, Muhammad Nawaz, S.I. (P.W.2) recorded the statements of the prosecution witnesses and also prepared rough site plan of the place of recovery. Having found the appellant guilty, the Investigating Officer after preparing report under section 173. Cr.P.C, sent the same to the court of competent jurisdiction.

6. The appellant was charge-sheeted by the learned trial Court on 19-7-2001 under section 9(c) of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. Prosecution in order to prove its version produced as many as 7 witnesses. Occular/recovery account in this case had been furnished through Muhammad Nawaz, S.I (P.W.2) and Faqeer Muhammad, A.S.-I. (P.W.1). Besides, Muhammad Nawaz S.I. (P.W.2) also conducted investigation of this case. Muhammad Yousaf, DSP (C.W.1) had also conducted partial investigation of the case.

7. The learned A.D.A vide statement recorded on 18-3-2003, gave up Gul Muhammad, A.S.-I. and vide separate statement recorded on 25-2-2004, after tendering-in-evidence, the report Chemical Examiner regarding heroine (Exh.PE), report of Chemical Examiner regarding opium (Exh.PF), report of Chemical Examiner regarding charas (Exh.PG) and previous record of the accused Mark-A, closed the prosecution evidence.

8. The appellant was also examined under section 342, Cr.P.C. wherein he opted not to appear as iris own witnesses as provided under section 340(2), Cr.P.C, however, opted to produce defence evidence. To a question why this case against him and why the P.Ws. deposed against him, the appellant made the following deposition:

"All the P.Ws. are police officials and are inimical against me and my family because my father filed civil suits against police officials and got decreed. Since then police started involving us in false cases in which we were ultimately acquitted. Case in hand has been falsely registered in this background. Story narrated by the P.Ws. is false. Neither I was arrested by the police nor I got recovered any narcotics from my dera. Fake recovery of narcotics has been planted against me. I was arrested from Multan. Subsequently police took my personal articles and wrist watch etc. but falsely shown my arrest from Children Park Kabirwala. My this contention of innocence was proved correct during investigation by DSP Muhammad Yousaf who has also made statement in this regard before this court as C.W."

In defence, the appellant tendered certain documents.

9. After hearing the arguments advanced by the learned counsel appearing 'on behalf of both sides, the learned trial Court, while evaluating the evidence available on the record, found the version of the prosecution correct beyond any shadow of doubt, which resulted into conviction of the appellant as stated above.

10. Learned counsel for the appellant contended that the prosecution case is full of discrepancies and there are material contradictions in the statements of the prosecution witnesses, which escaped notice of the learned trial Court. It is also argued that the evidence of the prosecution witnesses of the occular account is not trustworthy as they are inconsistent about the weighing the articles, spot and recovery of contraband. Learned counsel next stated that Muhammad Nawaz S.-I. (P.W.2), who is the complainant of the case, also conducted investigation, for which there is no room in the Criminal Procedure Code. Even otherwise, learned counsel argued, the statements of the prosecution witnesses qua recovery i.e., Fageer. Muhammad, A.S.-I. (P.W.1) and Muhammad Nawaz S.I. (P.W.2), are at variance. Learned counsel further stated that admittedly case property was not produced by the prosecution during the trial proceedings and mere production of rozenamcha, in the case involving capital punishment, could not have been made basis by the learned trial Court while passing conviction. Learned counsel next argued that respective reports of the Chemical Examiner qua narcotic substance, in the peculiar circumstance is of no value. Learned counsel next submitted that all the prosecution witnesses are government functionaries and while effecting recovery provisions of section 103, Cr.P.C. were squarely violated. Learned counsel vehemently urged that Muhammad Yousaf, DSP (C.W.1), while appearing during the trial proceedings, in categorical terms, admitted that the investigation conducted by the earlier Investigating Officer was not above-board and lie also did not agree with the same. Learned counsel submitted prosecution failed to substantiate its case qua safe custody of the narcotic substance and statement of Irshad Hussain/H.C. (P.W.3) under section 161, Cr.P.C. was recorded at a very belated stage. Learned counsel next argued that the appellant and his father had filed so many civil suits and writ petitions against the police functionaries and due to this reason, the appellant has been falsely involved in this case. With regard to registration of other cases, against the appellant, learned counsel stated that he stands acquitted in all the cases. Learned counsel argued that in such a situation, case of the appellant is of clean acquittal.

11. On the other, learned Deputy Prosecutor-General stated that during the course of interrogation of case F.I.R. No. 18, dated 21-1-1998, offence under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order IV of 1979, the appellant himself made disclosure and led the police to the recovery of narcotic substance and due to its being huge quantity, it cannot be said that it was planted one. Learned DPG further argued that prosecution witnesses qua recovery remained consistent on salient features of the prosecution version and nevertheless they were cross-examined at length but the defence could not shatter their testimony. It was also contended that report of the Chemical Examiner fully connects the appellant with the commission of offence. Learned DPG next stated that narcotic peddlers are defaming Pakistan in the world and are also putting the young generation into dark, therefore, they do not deserve any leniency. Learned DPG vehemently argued that the appellant was found guilty of the charge and the learned trial Court while dealing each and every aspect of the case has very rightly convicted him. With regard to investigation conducted by Muhammad Yousaf, DSP (C.W.1), learned Law Officer stated, the same was ex parte, having been conducted in a hasty manner. Moreover, learned DPG argued, C.W.1, though had disagreed with the earlier investigation, `however, he in no way had declared the appellant innocent.

12. We have heard the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.

13. We have gone through the prosecution evidence which is consistent, unbiased and confidence-inspiring and has come from a source which is independent squarely. Faqeer Muhammad, A.S.-I. (P.W.1) and Muhammad Nawaz S.I. (P.W.2), prosecution witnesses qua recovery, remained consistent on salient features of the prosecution version. Although they were subjected to lengthy cross-examination, however, the defence could not fetch anything in their favour. It was the contention of learned counsel for the appellant that as the appellant and his father had filed certain civil: suits and writ petitions against the police hierarchy, therefore, the appellant was involved in this case with mala fide intention, however, we may observe here that such contention was also made by the defence at trial and the learned trial Court rightly observed that the persons involved in heinous crimes, often lodge/file writ petitions and civil suits against the police functionaries in order to create defence. Moreover, none of the civil suits or writ petitions was tiled against the prosecution witnesses of the instant case.

14. So far as contention of learned counsel for the appellant that the recovered narcotic substance was never produced before the learned trial Court is concerned, admittedly the fire erupted in the malkhana where the case property was kept in safe custody and all the articles lying therein were burnt, which fact finds mention vide Rapat No.13, dated 15-5-2000, whereas the appellant was formally charge-sheeted in the case on 19-7-2001. Moreover, copy of the rapat was also produced during the trial proceedings, which was rightly believed by the learned trial Court.

15. During the course of investigation, Muhammad Nawaz, S.-I. (P.W.2) had found the appellant guilty of the charge: Subsequently Muhammad Yousaf, DSP (C.W.1), on the direction of DIG, also conducted partial investigation in the case, however, at that time challan in the case had already been submitted before the learned trial Court. If investigation proceedings conducted by C.W.1 are seen with naked eye, it is apparent that he never associated the prosecution witnesses into investigation and mere on the basis of affidavits of 26 persons appeared in defence, he disagreed with investigation earlier conducted in the case. However, fact remains that he nowhere declared the appellant innocent. This aspect of the case, as such, does not help the appellant. Even none of those 26 prosecution persons, who had furnished their affidavits during the course of investigation conducted by Muhammad Yousaf, (C.W.1), had bothered to appear before the learned trial Court to supplement the findings of the DSP although the appellant had ample opportunity to produce them. Moreover, the appellant had not bothered to rebut the accusations while appearing under section 340(2); Cr.P.C. in disproof of the allegations levelled against him.

16. It has been the consistent view of the superior courts of the country that police officials are as good prosecution witnesses as the other public. The contention of learned counsel for the appellant that while effecting recovery, provisions of section 103, Cr.P.C. have been violated, has no substance and their statements cannot be discarded without any rhyme or reason. Moreover, we may observe here that acquittal of the appellant from the earlier cases registered against him, was only on account of 103, Cr.P.C. because before promulgation of Control of Narcotic Substances Act, 1997, this provision was mandatory, however, after its promulgation, the same is of little value.

17. The report of Chemical Examiner qua narcotic substance is positive, which prima facie connects the appellant with the commission of offence. Admittedly, the appellant is record-holder as earlier he is involved in as many as 21 cases of the similar nature, therefore, he cannot beg any leniency from the Court. Nevertheless there are minor discrepancies in the prosecution version, which were pointed out by learned counsel for the appellant, however, these do not shatter the prosecution case to the hilt. All these factors depict that prosecution has ably established its case against the appellant.

18. In this backdrop we have been persuaded to uphold the judgment of the learned trial Court and maintain conviction and sentence of the appellant for the following reasons:

(i) The recovery effected from the appellant has rightly been proved by the prosecution during the course of trial through leading cogent and confidence-inspiring evidence. The report of the Chemical Examiner is also positive.

(ii) Nevertheless the appellant and his father had earlier filed civil suits and writ petitions before the police officials; however, none of the same was filed against any of the prosecution witness of the instant case. Even otherwise the appellant is involved in as many as 21 cases of similar nature.

(iii) The accused involved in such-like cases are not only defaming the image of Pakistan as a country rather making our young generation, the future of Pakistan, addict of narcotic, therefore, these deserve to be dealt with iron hands.

19. In sequel to above discussion, Criminal Appeal No.272 of 2004, filed by Muhammad Aslant, appellant, is dismissed in toto. The sentence inflicted by the learned trial Court by virtue of its judgment passed on 17-4-2004 is maintained. Capital Sentence Reference No.2-N of 2004, forwarded by the learned trial Court for confirmation of death sentence inflicted upon Muhammad Aslam, appellant, is answered in affirmative. Death sentence is confirmed.

N.H.Q./M-704/L Appeal dismissed.