How conviction and sentence is determined in narcotics case?

PLJ 2004 SC 566 [Appellate Jurisdiction] Present: syed deedar hussain shah and khalil-ur-rehman ramday, JJ. NASEER AHMAD-Petitioner versus STATE-Respondent Crl. Petition for Leave to Appeal No. 335 of 2003, decided on 14.4.2004. (On appeal from order dated 16.7.2003, passed by the Lahore High Court, Lahore in Cr.A. No. 971/1999) Constitution of Pakistan, (1973)-- —-Art. IBS-Control of Narcotic Substance, 1995 (V of 1995), S. 9(c)~ Criminal Procedure Code, 1898 (V of 1898), S. 164-Conviction and sentence-Appreciation of evidence-Drug trafficking-Preferred appeal dismissed by Division Bench—Assailed—On pointatioon of co-accused, ANF officials recovered 48 cartons from appellant-Private persons were not associated, because ANF official received information and apprehended co-accused and philpino woman who led raiding party to petitioner and recovery was effected-PWs fully stood and test of cross-examination and defence was not able to put any dent in prosecution story-Held: Police officials are good witness as others and their evidence on this score alone should not. be discarded-Ocular account, circumstantial evidence and confession of accused-Truthful version of prosecution witnesses was rightly believed by trial Courts—Petition dismissed. [Pp. 568 & 569] A, B & C Dr. Khalid Ranjha, ASC with Mr. M.A. Zaidi, AOR for Petitioner. Nemo for Respondent. Date of hearing: 14.4.2004. judgment Syed Deedar Hussain Shah, J.--Petitioner seeks leave to appeal against judgment dated 16.7.2003, passed by a learned Division Bench of the Lahore High Court, Lahore, in Criminal Appeal No. 971 of 1999, whereby the appeal of the petitioner was dismissed and the conviction and sentence recorded by the Special Judge, Anti-Narcotics Force, Lahore, was ma ; ntained. 2. The brief prosecution story is that on the statement of Ashraf Ali, SHO, PW. 5, FIR Ex.PA/1 was registered wherein it was alleged that the officials of Anti-Narcotics Force, Lahore, received an information that a woman of Philpino origin was arrested at Islamabad Airport, who before the ANF officials disclosed that the heroin, recovered from her possession was purchased from Naseer Ahmad-petitioner, resident of Lahore. The" said woman further disclosed that other members of her gang were present in Davis Hotel, Lahore Upon receipt of such information, a raiding party headed by Lt. Col. Muhammad Younas Deputy Director, Anti Narcotics Force, raided the above Hotel and one Tajo Yahya Dantuma and Isiaka Moru were arrested. They disclosed about their co-accused Abu Bakar Garwba, Alholabisi Amori Oladihura, Alhaja Idowu Balogun, Mrs. Omolole Yemi Adlbbite and Mrs. Risikatu Leamonth, who were also arrested. All of the accused were brought by ANF officials in their office and were interrogated. During the interrogation, they admitted that there were involved in drug trafficking, and Tajo Yahya Dantma further disclosed that herein, recovered from Philpino woman at Islamabad Airport, was purchased by her from petitioner-Naseer Ahmad on payment of US $ 15,000. On his pointation, ANF official conducted raid at the house of the petitioner where his wife and children were also residing and from where 48 cartons with the labelled "Al Jabbar Associate and Electric Co. Re-conditioned Spindules Kranks Suppliers Karachi, Pakistan" were recovered and each carton contained one steel roller. The steels rollers with the help ofMistri Akhtar Ali, PW. 3 were cut down and 28 Kg heroin Ex.PE was recovered. ANF officials, after separating 15 grams as a simple, took into possession through memo Ex.PB, which apart from I.O. was attested by Hawaldar Sher Zaman, PW. 2 The report of the Chemical Examiner was obtained, which was in positive. 3. After usual investigation, charge sheet was filed against the petitioner alongwith co-accused before the trial Court, who convicted the petitioner under Section 9(c) of CNSO. 1995 and sentenced to death. On appeal, the learned Division Bench of the High Court maintained the conviction and sentence, as awarded by the learned trial Court and dismissed the appeal of the petitioner. Hence, this petition. 4. Dr. Khalid Ranjha, learned counsel for the petitioner, inter alia, contended that the learned High Court had not considered the case in its proper perspective; that contraband narcotics were not produced before the trial Court and the alleged judicial confession of the petitioner under Section 164 Cr.P.C., recorded by the Magistrate was not in consonance with the High Court Rules and Orders; that the prosecution violated the provisions of Section 103 Cr.P.C. as private persons were not associated in the recovery process by the prosecution; and that the co-accused were convicted by the learned trial Court and lenient view in their conviction was taken. 5. We Have considered the arguments of the learned counsel for the petitioner and carefully examined the available material. The petitioner was implicated by Philpino woman, who disclosed that she had purchased the narcotics from him. Furthermore, on her disclosure, other members of the gang were arrested from a Hotel at Lahore, who also disclosed the involvement of the petitioner. From the record, it is not born out that co-accused, or officials of the ANF had any ill-will, prejudice and malice against the petitioner; so that he could have been falsely implicated in the case. On the pointation and disclosure of Tajo Yahya Dantuma raid was conducted at the house of petitioner, who also disclosed that heroin was purchased by Philpino lady from him for an amount of US $ 15,000/- and further that the raiding party recovered a huge quantity of heroin from the house of the petitioner. So far as the non-production of the narcotics before the trial Court is concerned, the I.O. during the trial submitted an application under Section 516 Cr.P.C. for destruction of narcotics substance, which was allowed by the Magistrate on 4.12.1995 and the Destruction Certificate was issued by the Magistrate on 5.12.1995. We are mindful of the fact that during the trial, the petitioner did not raise objection for the Destruction of the narcotics under the valid orders of the Court. 6. We have also gone through the statement of the petitioner under Section 164 Cr.P.C. recorded by the Judicial Magistrate, which is quite in accordance with the law and the High Court Rules. So far as the contention of the learned counsel for the petitioner, that the private persons were not associated in the seizing of narcotics, is not tenable, because ANF officials received the information and apprehended Philpino woman and co-accused who led the raiding party to the house of the petitioner and recovery was effected, which was attested by Hawaldar Sher Zaman and I.O. These PWs as well as other PWs have fully stood the test of cross-examination and defence was not able to put any dent in the prosecution case. It has been held by this Court, time and again that the police officials are as good witnesses as others, and their evidence on this score alone should not be discarded. Now- a-days, drug trafficking has created dangerous problems for the society and the country at large. This menace should be curhed so that people in society could get relief. 7. We further find that the trial Court as well as the learned appellate Court after thorough and careful examination found that the prosecution has proved the case against the petitioner beyond reasonable shadow of doubt. 8. No doubt, the co-accused were awarded lesser sentence i.e. 10 years R.I., but the main role of purchase, sale, and storing the narcotics is attributed to the petitioner, which shows that he is the ring leader of the smugglers gang. Therefore, keeping in view the ocular account, circumstantial evidence and confession of the petitioner, the truthful version of the prosecution witnesses was rightly believed by the trial Court and upheld by the learned High Court. 9. The impugned judgment is well reasoned and is based on the proper appreciation of facts and law. Neither there is jurisdictional error nor misconstruction of law. 10. For the facts, circumstances and reasons stated hereinabove, we are of the considered opinion that the petition is without merit and substance, which is hereby dismissed and leave refused. (A.A.K.) Petition dismissed.