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Petitioner: REHMAT SHAH AFRIDI VS Respondent: STATE
Court Name: Lahore High Court Judge(s): Muhammad Saeed Akhtar, Tasaddaq Hussain Jillani Title: REHMAT SHAH AFRIDI vs STATE Case No.: Crl. Appeal No, 1066 of 2001 Date of Judgment:2004-06-03 Reported As: PLJ 2004 Cr.C. (Lahore) 779 Result: Order accordingly
JUDGMENT
JUDGMENT Tassaduq Hussain Jilani, J.--Appellant Rehmat Shah Afridi son of Haji Khilji Khan Afridi was tried by Syed Kazim Raza Shamsi, Special Judge, Anti-Narcotics, Lahore (in the case registered vide FIR No, 11/99 dated 2.4.1999 under Section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station ANF, Lahore), and vide the judgment dated 27.6.2001, he was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to death. He was also burdened with a fine of rupees one million in default whereof he was further directed to undergo SI for two years. 2. The prosecution case, as given in the FIR, briefly stated is that the appellant was involved in smuggling of narcotics at international level; that his activities were being monitored; that on the fateful night at about 1.30 a.m. on an information received to the effect that the appellant, having narcotics, was to come out of the Pearl Continental Hotel, a raiding party was constituted consisting of several officials of the Anti-Narcotics Force, at about 3.45 a.m. appellant's car came from the Hotel side which was intercepted, the appellant was on the driving seat who introduced himself as Editor-in-Chief of the daily newspaper Frontier Post, he was being accompanied by two others i,e, Naik Muhammad sitting on his side and Lal Saeed sitting on the rear seat. All the three were arrested. Rehmat Shah Afridi appellant himself opened the Diggi of the car from where twenty packets (Total weight: 21 Kilograms) of charas were recovered lying underneath the spare wheel of the car. The Investigating Officer separated ten grams of charas from each packet as samples and prepared twenty sealed parcels for onward transmission to the office of the Chemical Examiner. A Kalashnikov alongwith three magazines containing twenty bullets each were recovered from Naik Muhammad, while a Kalashinkov alongwith three magazines containing twenty rounds each were recovered from Lal Saeed. From the Dashboard of the car, a pistol .30 bore alongwith two
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magazines containing five rounds each, the license of the Pistol, Registration Book of the car and other documents were taken into possession. During investigation, the appellant allegedly disclosed that sixteen maunds of Charas sealed in a truck had been parked near Faisalabad and he could have it recovered. The Investigating Officer sent complaint (Exh.PA) to the Police Station of ANF on the basis of which Nasir Aziz SI registered formal FIR (Exh. PA/1). 3. During trial prosecution examined nine witnesses. PW1 is Abdul Ghafoor Constable who stated that having received twenty sealed parcels of charas, delivered those to the office of the Chemical Examiner the same day. PW2 is Muhammad Yaseen HC. According to him, in his capacity as Moharrir Malkhana, he received twenty sealed parcels on 2.4.1999 containing charas from Rana Ibad Ali (PW9) which he kept in Malkhana in safe custody and on 5.4.1999 were handed over to Abdul Ghafoor constable. PW3 is Nasir Aziz who lodged the formal FIR. PW4 is Major Abdul Rab. He, at that time, was Deputy Director of Anti Narcotics Force. He acted as under-cover officer with the assumed name of Khalid. He got introduced to Rehmat Shah Afridi through one Javed. He held telephonic conversation with the appellant (which was duly taped) and held meetings with him in PC Hotel in Rooms Nos, 601 and 603 which were also fully video tapped. The audio and video cassettes were duly exhibited alongwith transcripts (Exh.A/1-8 and V/1-4) and the record of mobile phones used by the appellant was also tendered in evidence (Exh.PD/1-50). Copies of reservation of rooms were placed on record as (Exh.PE/5). He deposed that the appellant agreed to supply charas to him for a consideration of $ 100 per kilogram for delivery in Pakistan and $ 200 per kilogram for delivery in USA. He further deposed that the appellant entered into an agreement with him for supply of 1300 kilograms of charas; that latter told him that half of the consignment was reaching Faisalabad that day and that payment of the price of charas i,e, Rs, 66,30,000/- shall have to be made to him in Pearl Continental Hotel. He further told that he had brought some charas with him in his car as a gift. PW5 is Captain Muhammad Hashim Dogar who prepared the audio and video cassettes (A/1-8 and V/1-4). He certified the preparation of the transcripts of the afore-referred audio and video exhibits. PW6 is Asif Muzammal, Assistant Manager Coordination, Mobil Link who proved the record pertaining to the mobile telephone number of the appellant and of Captain Muhammad Hashim Dogar which was used by Major Abdul Rab, Deputy Director ANF Lahore (PW4) Bearing No, 550716. PW7 is Syed Hasnain Raza who was the Manager of Pearl Continental Hotel, Lahore. He produced record pertaining to Rooms Nos, 439, 441, 601 and 603. PW8 is Captain Mian Farooq Aziz, Assistant Director, Police Station ANF, Punjab who was member of the raiding party. He arrested the appellant and the co-accused on the day of occurrence. He is a witness to the recovery Memo of Charas (Exh.PG) and of the recovery memo of some of the articles (Exh.PH). PW9 is Rana Abad Ali. He is also a recovery witness, complainant and the Investigating Officer. The report of the Chemical Examiner with regard to the samples was found to be positive and the same is Exh.PL. Exh.PJ and Exh.PK are orders passed by the learned trial Court with regard to the destruction of the case property under Section 516-A Cr.P.C. 4. In support of this appeal, learned counsel for the appellant Syed Ehsan Qadir Shah, Advocate, submitted as under:-- (i) That there is nothing on record to indicate that PW4 Major Abdul Rab was duly appointed or authorized by the Federal Government in terms of Section 24 of the Control of Narcotic Substances Act, 1997 to act as an under-cover-officer in absence of which all proceedings prior to the raid were illegal and cannot be used as evidence against the appellant; (ii) That no audio or video cassette was prepared prior to the registration of case. If those had been prepared, same would have find mention in the case registered; (iii) That even if the story preceding the raid is accredited with truth, the same is of no avail as Charas allegedly recovered was allegedly brought by the appellant as a gift whereas the conversation leading to the raid suggests that there was a sale transaction between the appellant
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and one Mr. Richi for whom Major Abdur Rab (PW4) was an assumed agent; (iv) That the transcripts of audio and video cassettes are not incriminating because, firstly, there is nothing in the conversation to indicate that any charas was being given as a gift to Major Abdul Rab (under-cover officer) and, secondly, there is nothing in those cassettes to indicate that Major Rab (PW4) left Rehmat Shah Afridi appellant in the Hotel room and himself went out to bring the money for the alleged deal; (v) That the case property was not produced before the learned trial Court and that the same was allegedly destroyed in absence of the appellant by an order of the Court passed without hearing him and that the manner in which the case property was destroyed indicates no such narcotics substance was recovered; (vi) That no samples of charas were taken into possession prior to being destroyed under Section 516-A Cr.P.C. which is violative of the mandatory provision of law. In support of the submissions made, reliance was placed on Shahmore vs. The State (PLD 2003 Karachi 230), Muhammad Tayyab vs. The State (2002 P.Cr.L.J. 1889), Naik Muhammad vs. The State (PLD 2003 Peshawar 130), Syed Karim vs. Anti Narcotics Force (PLD 2003 Karachi 606) and Nawab Ali vs. State (PLJ 1995 FSC 90). 5. Learned Special Prosecution for Anti Narcotics Force, Khawaja Sultan Ahmed, Advocate defended the impugned judgment and contended as under:-- (i) That the Control of Narcotic Substances Act, 1997 is a special Act and the evidence on record has to be examined in the light of the special law. In terms of Section 29 of the said Act, once the prosecution establishes that an accused was found in possession of any narcotic Crug, psychotropic substance or control substance or any cannabis resin or opium poppy plant on a land cultivated by the accused, or any apparatus used for the production or manufacture of any of the afore-referred articles, then a presumption of guilt would arise against the accused in the event of his failure to satisfactorily account for the same; (ii) That the prosecution produced ample evidence to prove the case i,e, through witnesses, audio and video casettes, Chemical Examiner's report. The onus thereafter shifted on the accused/appellant to satisfactorily explain the recovery of narcotics which burden of proof he has failed to discharge; (iii) That the audio and video cassettes were duly exhibited. It proved the conversation between the accused and the undercover officer preceding the recovery of the narcotics substance; (iv) That copies of those Exhibits and their transcripts were delivered to the accused before the commencement of trial alongwith the statements of the prosecution witnesses recorded under Section 161 Cr.P.C. Those exhibits, according to him, are relevant also because there is evidence to indicate that the appellant had a business of narcotics both within and outside the country. These exhibits stand proved, he contended, for following reasons:-- (a)The person who had conversation with the accused appeared as PW4 (Major Abdul Rab); (b)The person who recorded the conversation appeared as PW5 (Captain Muhammad Hashim Dogar); (c)That the witnesses appeared to state that the audio and video cassettes remained in safe custody; (d)That the recovery of narcotics was proved beyond reasonable doubt by PW1 Abdul Ghafoor, PW2 Muhammad Yasin, PW 9 Rana Abad Ali and the report of the chemical examiner; (v) That in the face of the afore-referred evidence, a heavy burden was cast on the accused/appellant to explain as to how he was in possession of such huge quantity of narcotics. To discharge the said heavy burden, the appellant did not adduce any evidence whatsoever but relied on his own statement under Section 342 Cr.P.C. and did not even appear as his own witness; (vi)That the learned trial Court was well within its power in terms of Section 516-A Cr.P.C. to direct
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destruction of the narcotics and the Court did pass the order on 22.6.2000 on the application of the Assistant Director Anti Narcotics Force dated 30.5.2000 in which notice was issued to the appellant, the same day i,e, for 16.6.2000, the application would not be taken up on 17.6.2000 as the Presiding Officer was on leave and it was allowed on the next date of hearing i,e, 22.6.2000. Pursuant to this order, Judicial Magistrate Section 30, visited Police Malkhana, examined 31 sealed parcels, desealed them and randomly selected Parcels Nos, 15, 20, 25 and 31 and took one slab from each parcel whereafter he resealed all the parcels and on 27.11.2000 under his own supervision those slabs were destroyed. On the afore-referred date, the Magistrate issued certificate (Exh.PH/1) to the effect that "parcels bearing my seal have been found intact and correct in weight. Consequently, I have caused and ensured the destruction of the charas contained in the said parcels through burning, hence this certificate". At no stage the appellant challenged the recovery or the contents of the packets/parcels recovered from him; (vii) That in his statement under Section 342 Cr.P.C. he admitted that the car in question (Exh.PH) was his car and that the mobile telephone from which conversations took place which was taped belonged to him. In these circumstances the recovery against the appellant stands proved beyond any shadow of doubt to sustain the impugned conviction; (viii) On Court query with regard to the quantum of sentence, learned Special Prosecutor Khawaja Sultan Ahmad, in all fairness, admitted that the sentence of death is rather harsh but nevertheless this sentence is provided under the law. However, he further added that under Section 9(c) of the Control of Narcotic Substances Act, 1997, the Court has the discretion to award either of three kinds of sentences i,e, death, imprisonment for life or imprisonment which may extend to fourteen years and also fine which may be upto one million rupees. The minimum sentence as provided in the same section is that in case the narcotics substance exceeds ten kilograms, the punishment shall not be less than imprisonment for life. In absence of any guideline, he further added, the Court can keep in mind the nature of narcotics substance recovered, the quantity and the previous convictions, if any. 6. Ch. Muhammad Suleman Additional Advocate General Punjab, who was called to assist the Court, on the question of sentence, submitted that the law does not create nay distinction between various kinds of narcotics so far as the question of sentence is concerned and if the quantity recovered falls within the mischief of Section 9(c) ibid then the maximum sentence of death is neither harsh nor illegal. On a Court query, he conceded that so far no High Court has ever confirmed death sentence in a case in which the narcotics substance recovered was Charas. 7. Having heard learned counsel for the parties, the learned Law Officer and having gone through the evidence on record we are of the view that this appeal arises following propositions for consideration:-- (i) Whether the prosecution has successfully raised the presumption of guilt in terms of Section 29 of the Control of Narcotic Substances Act, 1997 and whether the appellant has discharged the onus to rebut the said presumption? (ii) What is the evidentiary value of the video and audio tape conversation. Has the said conversation brought to light the antecedents of the appellant in narcotics trade and has the effect of proving the subsequent transaction i,e, the recovery of narcotics from appellant's car? (iii)Whether destruction/disposal of property in terms of Section 516-A Cr.P.C. has substantially prejudiced the case of the appellant and had the effect of vitiating the trial or in the facts and circumstances of this case is an irregularity which stood cured by the evidence led and the conduct of the appellant during trial? (iv)Whether the statement of Major Abdul Rab (PW4), who acted as an under-cover officer, without the permission in writing of the competent authority under Section 24 of the Control of Narcotic Substances Act, 1997, is admissible and whether he was an accomplice not worthy of
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credit? (v) What is the effect of the absence of any guidelines with regard to the award or otherwise of the maximum/capital punishment as provided in Section 9(c) of the Control of Narcotic Substances Act, 1997 and what guidelines this Court lay down in these proceedings? PROPOSITIONS (i) & (ii) (i) Whether the prosecution has successfully raised the presumption of guilt in terms of Section 29 of the Control of Narcotic Substances Act, 1997 and whether the appellant has discharged the onus to rebut the said presumption? (ii)What is the evidentiary value of the video and audio tape conversation. Has the said conversation brought to light the antecedents of the appellant in narcotics trade and have the effect of proving the subsequent transaction i,e, the recovery of narcotics from appellant's car? 8. Drug trafficking is a menace both at domestic and global level. Countries all over the world have enacted special laws to combat this crime, Promulgation of the Control of Narcotic Substances Act, 1997 is a special law which reflects the resolve of law maker to deal with these offences. It has spelt out the offences, has laid down procedure for the arrest of the accused, for inquiry, investigation and trial of those offences. Realizing that the ambit of contraband activity and the criminal transactions may entail sophisticated conspiracy and methodology, the procedure laid down under this law has certain special features. For instance Section 29 of the Act raises a presumption in law that an accused has committed an offence if he is found in possession of any narcotic drug/substance or material mentioned therein unless he satisfactorily explains and proves to the contrary. But to raise such a presumption in law, the initial burden continues to be on the prosecution. It is only when the prosecution has successfully discharged its burden of proof that the onus would shift on the accused to rebut the said presumption, which the law has raised. In the case in hand, the prosecution has produced the following set of evidence to discharge the initial burden of proof:-- (i) The recovery of twenty packets of charas from the Mercedes car which the appellant himself was driving; was intercepted and he himself led to its recovery i,e, by opening the Diggi of the said car (Exh.PG & PH); (ii) The substance recovered from the said packets was proved to be charas as is evident from the report of the Chemical Examiner (Exh.PL). The case property was produced in Court which is also evident from the cross-examination of PW8 who, at page 59 of the Paper Book said, "it is correct 20 packets of separated hashish are present in Court today"; (iii)The afore-referred recovery was witnessed by PW8 Captain Mian Farooq Aziz who was at that time a serving Army Officer and was on deputation with the Anti Narcotics Force since 1.5.1998 and with whom the appellant, at no stage, attributed enmity or any motive for false implication. This witness was subjected to a lengthy cross-examination but the factum of recovery of twenty packets of charas from the Diggi of the car was nowhere challenged during the cross- examination; (iv)Statement of PW8 is further corroborated by the statement of PW9 Rana Abad Ali, Assistant Director Anti Narcotics Force who too was subjected to cross-examination at length but no motive for false implication was attributed to him either. The trend of cross-examination of this witness indicates that the case of the appellant was that the charas was recovered from the car but not on the pointation of the appellant but on the search made by the raiding party itself. The precise answer of this witness to the query made by the appellant's learned counsel is suggestive of this trend. He stated that ". The charas was not recovered as by searching the car rather Rehmat Shah Afridi himself got recovered the same from the Diggi of his car " (v) Major Abdul Rab (PW4) who is yet another serving Army Officer on deputation with Anti Narcotics Force, further corroborates the recovery of narcotics. He is a witness who not only had
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telephonic conversation with the appellant but also had meetings with him in the Pearl Continental Hotel which were video taped. This witness stated that he posed himself as an agent for one Mr. Richi of USA. On latter's behalf he struck a deal with the appellant. In terms of the said deal, the appellant was to supply 1300 kilograms of charas, half of the consignment was to reach Faisalabad the same night (which ended in conviction and is subject matter of Crl. Appeal No, 1067/2001 and Crl. A. No, 297-J/2001), appellant demanded full payment of the afore-referred amount of charas (Rs, 66,30,000/-) and brought a gift of charas in the car for the said witness. Statement of this witness is admissible in evidence in terms of Article 40 of the Qanun-e-Shahadat Order which reads as under: "40. How much of Information received from accused may be proved.--When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." In the Commentary of Qanun-e-Shahadat Order by Justice Munir, as adapted by Mr. Justice (R) Khalil-ur-Rehman Khan, Vol. I, at page 545, relying on precedent case law, it was commented as under: "........For purposes of Article 40, the word 'custody' does not necessarily mean detention or confinement. Submission to custody by word or action under Section 46(1) Cr.P.C. may be taken to amount to custody. The expression 'police custody' does not necessarily mean formal arrest, it also includes police surveillance and restriction of the movements of the person concerned by the police. Detention of a person by the police as a suspect amounts to his being in police custody. As soon as an accused or suspected person comes into the hands of a Police officer, he is, in the absence of clear evidence to the contrary, no longer at liberty, and is, therefore, in custody within the meaning of Article 40 of the Qanun-e-Shahadat Order....... (vi)Copies of the audio/video tapes (Exh.PM) were duly delivered to the appellant at the time of delivery of statements of prosecution witnesses under Section 161 Cr.P.C. This exhibit was played during trial as also before this Court and it was never challenged that the person on the video tape was not the appellant. But the learned counsel contended that the voice was clubbed. However, admittedly, at no stage, during trial or in appeal, appellant or his learned counsel made any request for a sonographic test of the voice in question. In corroboration of the video and audio tapes, their transcripts were also placed on record by the prosecution as Exh.PM; (vii) This Court watched the video to comprehend the conversation with the help of transcripts. Some parts of it may be difficult to discern but broadly open could make out that the appellant was apprehensive of being under surveillance of the agencies, he was using coded expressions, he was offering to supply a less harmful narcotic (Charas) and said that even if he was offered a billion dollars, he would not deal in the deadly narcotic (Heroin). He told PW4 that the delivery of first instalment of Narcotic was to be made at a city starting with word "F" (Faisalabad) and that Major Rab should arrange payment for the entire consignment which was to be supplied; (viii) The person who taped audio/video conversation of the meetings was Captain Muhammad Hashim Dogar (PW5) who too was a serving Army Officer on deputation with the Anti-Narcotics Force. Tape recorded conversation is by now a well accepted form of 'real evidence' which a party may produce to prove a fact in issue. The expression 'real evidence' refers to all kinds of evidence, other than oral and documentary. Tape records, charts, photographs, finger prints and tracker dogs are some instances of the 'real evidence'. In Evidence Commentary and Materials by P.K. Waight & C.R. Williams (Third Edition), a detailed reference is made to the precedent case law from Australian jurisdiction. In Butera vs. D.P.P. (VIC), High Court of Australia (1987) 62 A.L.J.R. 7, relied on the tape recording conversation. Chief Justice Mason, who authored the judgment is quoted to have said:
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"........Of course a conversation can be proved by the oral testimony of anyone who heard it but that is not the only mean by which a conversation night be proved. The Courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape........ " The tape recorded conversation can be proved by the testimony of a person who was part of the conversation or who recorded the conversation or even transcripts were considered as proof of the conversation in R.v. Maqsud Ali R v. Ashiq Hussain (1965 2 All E.R.), S. Partap Singh vs. State of Punjab (AIR 1964 Supreme Court 72), R.M. Malkani vs. State of Maharashtra (AIR 1973 Supreme Court 157) and Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra and others (AIR 1975 Supreme Court 1788). (ix)Appellant's learned counsel laid much stress on the point that since the statement attributed to the appellant that he had brought a gift of charas for Major Abdur Rab (PW4) is missing in the video and its transcripts, therefore, the very recovery of 21 packets of charas from the Diggi of the car is doubtful. This argument is fallacious for more than one reasons. Firstly, every element of conversation between the two is not discernable because of T.V. music was being played in the Hotel. Secondly, the absence of this part in the transcript defeats the argument that the video conversation was dubbed or its transcript was doctored. Had it been so, this part of conversation could have been easily added. Thirdly, the recovery of charas from Diggi of the car stands proved irrespective of this missing part of…
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