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
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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