P L D 2004 Lahore 829

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

REHMAT SHAH AFRIDI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1066 of 2001, heard on 3rd June, 2004.

(a) Control of Narcotic Substances Act (XXV of 1997)-----

----S. 29---Presumption from possession of illicit articles---Intent and

import-In order to raise such a presumption in law, the initial burden
continues to be on the prosecution and 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.

(b) Qanun-e-Shahadat (10 of 1984)-----

----Art. 40---Tape recorded conversation---Tape recorded conversation is

by now a well accepted form of "real evidence" which a party may
produce to prove a fact in issue---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---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.

Evidence Commentary and Materials by P.K. Waight and C.R. Williams

(3rd Edn.); Butera v. D.P.P. (VIC), High Court of Australia (1987) 62
ALJR.7; R. v. Maqsud Ali R v. Ashiq Hussain 1965 2 All ER); S. Partap
Singh v. State of Punjab AIR 1964 SC 72; R.M.Malkani v. State of
Maharashtra AIR 1973 SC 157; Ziyauddin Burhanuddin Bukhari v.
Brijmohan Ramdass Mehra and others AIR 1975 SC 1788 and Asif Ali
Zardari and another v. The State PLD 2001 SC 568 ref.

(c) Control of Narcotic Substances Act (XXV of 1997)

----S. 9(c)--Appreciation of evidence---Prosecution had successfully

discharged its onus of proof and a presumption stood lawfully raised
against the accused that he not only was indulging in trafficking of
"Charas" but had also led to its recovery---Accused did not lead any
evidence to rebut the said presumption raised against him by the
prosecution evidence---Not even a word of mala fides or personal enmity
was attributed by the accused to any of the prosecution witnesses-- Except
his statement under S.342, Cr.P.C. the accused did not opt to appear
himself in his defence ---Accused having not disputed the contents of the
recovered parcels since the time of his arrest till the stage of recording his
statement under 5.342, Cr.P.C. objection to the destruction of the narcotics
was not relevant and the irregularity or illegality, if any, arising therefrom
in the circumstances did not vitiate the trial in view of the Explanation to
S.537, Cr.P.C.---Non-compliance of S.24 of the Control of Narcotic
Substances Act, 1997, did not make the evidence of the witness acting as
under-cover officer inadmissible, provided it was otherwise admissible
under the Qanun-e-Shahadat and had not prejudiced the case of accused---
Said witness was not a private individual negotiating some illegal
transaction for some private gain---Said witness was a serving Army
Officer on deputation with Anti-Narcotics Force, who was trying to spy
over and gather information about the illegal narcotic trade of the
accused---Police and the Anti-Narcotics Force were obliged to resort to
such techniques which could not be taken exception to unless some malice
was shown or pre judice was proved on record---previous convict and
according to the video tape conversation he had expressed abhorrence for
trading in heroin even if he was offered a hefty price---Sentence of death
of ace-used was altered to imprisonment for life in circumstances.

Shahmore v. The State PLD 2003 Kar. 230; Muhammad Tayyab v. The
State 2002 PCr.LJ 1889; Naik Muhammad v. The State PLD 2003 Pesh.
130; Syed Karim v. Anti-Narcotics Force PLD 2003 Kar. 606; Nawab Ali
v. State PLJ 1995 FSC 90; Qanun-e-Shahadat Order Vol. p.545 by Justice
Munir; Evidence Commentary and Materials by P.K. Waight and C.R.
Willams (3rd Edn.); Butera v. D.P.P. (VIC), High Court of Australia
(1987) 62 A.L.J.R.7; R. v. Maqsud Ali R v. Ashiq Hussain 1965 2 All
E.R.); S.Partap Singh v. State of Punjab AIR 1964 SC .72; R.M.Malkani
v. State of Maharashtra AIR 1973 SC 157; Ziyauddin Burhanuddin
Bukhari v. Brijmohan Ramdass Mehra and others AIR 1975 SC 1788 and
Asif Ali Zardari and another v. The State PLD 2001 SC 568; Malik Talib
Hussain v. The State 19'38 MLD 506; P. P. v. A. Thamas AIR 1959 Mad.
166 and Ambujam v. The State 1953 Mad. W. N.Cr.156 AIR 1954 Mad.
326 ref.

(d) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Sentence---Section 9 of the Narcotic Substances Act, 1997,

although does not create any distinction between various kinds of narcotic
substances and prescribes only a minimum sentence in case the same
exceeds ten kilograms, yet the Court has to consider cases in which
sentence of death or the sentence of imprisonment for life should be
awarded---Death sentence should be awarded to accused on the recovery
of heroin which is the deadliest narcotic, if its quantity falls within the
mischief of the said provision or if he is convicted for the second time
under the same provision while undergoing life imprisonment under
S.9(c) of the said Act.
Messrs Syed Ehsan Qadir Shah, Syed Hassam Qadir Shah and M. Iqbal
Bhatti for Appellant.

Khawaja Sultan Ahmad, Special Prosecutor for the State.

Ch. Muhammad Suleman, Addl. A.-G., Punjab.

Dates of hearing: 19th, 20th and 26th May; 2nd and 3rd June, 2004.

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 F.I.R.
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 S.I. for two years.

2. The prosecution case, as given in the F.I.R. 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 newspapers Frontier Post, he was
being accompanied by two others i.e. Nark 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 along with three magazines
containing twenty bullets each were recovered from Naik Muhammad,
while a Kalashnikov along with three magazines containing twenty rounds
each were recovered from Lal Saeed. From the Dashboard of the car, a
pistol .30 bore along with two magazines containing five rounds each, the
licence 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, S.I. registered formal F.I.R. (Exh.PA/1).

3. During trial prosecution examined nine witnesses. P.W.1 is Abdul

Ghafoor, Constanble who stated that having received twenty sealed
parcels of Charas, delivered those to the office of the Chemical Examiner
the same day. P.W.2 is Muhammad Yasin H.C. According to him, in his
capacity as Moharrir Malkhana, he received twenty sealed parcels on
2-4-1999 containing Charas from Rana Ibad Ali (P.W.9) which he kept in
Malkhana in safe custody and on 5-4-1999 were handed over to Abdul
Ghafoor Constable. P.W.3 is Nasir Aziz who lodged the formal F.I.R.
P.W.4 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 P.C. Hotel in Rooms Nos.601 and
603 which were also fully video tapped. The audio and video cassettes
were duly exhibited along with 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 U.S.A. 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.
P.W.5 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. P.W.6 is Asif
Muzammal, Assistant Manger 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 (P.W.4) bearing No.550716. P.W.7 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.
P.W.8 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.). P.W.9 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 P.W.4 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 to 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 gift whereas the conversation leading
to the raid suggests that there was a sale transaction between the
appellant anti one Mr. Richi for whom Major Abdur kab (P. W.4)
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 (P. W.4) 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 v. The State PLD 2003 Karachi
230; Muhammad Tayyab v. The State 2002 PCr. LJ 1889; Naik
Muhammad v. The State PLD 2003 Peshawar 130; Syed Karim v.
Anti-Narcotics Force PLD 2003 Karachi. 606; Nawab Ali v. State
PLJ 1995 FSC 90;

6. Learned Special Prosecutor for Anti-Narcotics Force, Khawaja Sultan

Ahmad, 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 as accused was found in possession of
any narcotic drug, psychotrupic 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 article, 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
through witnesses, audio and video cassettes Chemical Examiner's
report. The anus 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 vide cassettes were duly exhibited. It proved the
conversation between the accused and the under-cover --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 along with 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 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 P.W.4
 (Major Abdul Rab);

(b) The person who recorded the conversation appeared as P.W.5 (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, P. W.2 Muhammad Yasin, P. W.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 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 could not be taken up on 17-6-2000, as the
Presiding Officer was on leave and it was allowed on the date of
hearing i.e. 22-6-2000. Pursuant to this order, examined 31 sealed
parcels, desealed them and randomly selected parcels No.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 up to one
million rupees. The minimum sentence as provided in the same
 section is that in ease 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 any 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 raises 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 (PW-4), 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 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 Narcotics Substance
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 to
law, the initial burden continues to be on the prosecution. It is only when
A 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 P.W.8 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 P.W.8 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 P. W.8 is further corroborated by the statement of P.W.9

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 (P.W.4) 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 bad 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 Criminal
Appeal No.1067 of 2001 and Criminal Appeal No.297-J of 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. 1, at page 545, t
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 dubbed. 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 one could make out that the appellant was
apprehensive of being under surveillance of the agencies, he was
using coded expression, he was offering to supply a less harmful
narcotic (Charas) and said that even if he was officer a billion
dollars, he would not deal in the deadly narcotic (Heroin). He told
P.W.4 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 (P.W.5) 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 . In Evidence Commentary and 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 and C.R.Williams (Third Edition), a detailed reference
is made to the precedent case-law from Australian jurisdiction. In
Butera. v. 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:-

.......... 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 might 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

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 v. State of Punjab (AIR 1964 Supreme
Court 72), R.M. Malkani v. State of Maharashtra (AIR 1973
Supreme Court 157) and Ziyauddin Burhanuddin Bukhari v.
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 Abdul Rab (P.W.4) 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 discernible 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 video conversation. Fourthly, P.W.8 Captain Mian
Farooq Aziz, who was a serving Army Officer and a one of the
witnesses of recovery was never suggested that no Charas was
recovered from Diggi of the car;

(x) The record of the Mobilink was produced as (Exh.PC & PD/ 1-50) and
the appellant in his statement under section 342 Cr.P.C., admitted
that he was using the said Mobile number;

(xi) The august Supreme Court of Pakistan in Asif Ali Zardari and
another. v. The State (PLD 2001 Supreme Court 568) relied on
`tape recorded conversation between Senator Saifur Rehman
Incharge Ehtesab Bureau and two learned Judges of this Court to
hold that the trial was biased;

9. In the light of the discussion in the preceding paragraphs we are of the

view that the prosecution has successfully discharged its onus of proof. A
presumption stands lawfully raised against the appellant that he not only
was indulging in trafficking of Charas but also led to its recovery. The
question which begs answer and which is part of the first proposition is as
to what evidence the appellant led to rebut the presumption raised against
him. In. this statement under section 342, Cr.P.C., he denied the
prosecution case. He did not specifically deny that the voice in audio tape
was his voice. Similarly, he never took up the plea that the person
conversing with P.W.4 Major Abdul Rab was not the appellant but only
stated that:-

" . It is incorrect that the video have been forged and the copy
given to me are indiscernible The Video have been forged and do
not contain my speech. My figure has also been forged. The
speech in the video is not mine and even otherwise speech is
indiscernible "

He even denied his arrest outside the Pearl Continental Hotel in

the early hours of the fateful day. About the ownership of the car,
which he was driving, appellant took up the plea that " the said car
belongs to Frontier Post "of which admittedly he was the owner. In
answer to the question as to why this case had been registered and
why the prosecution witnesses were deposing against him, be
attributed false implication to some articles published in the
Frontier Post against Anti Narcotics Force, the alleged enmity of
Government of Nawaz Sharif against him because he had been
writing against the said Government and their misdeeds and soft
corner for the smugglers and other outlaws etc, Not a word of mala
fides or personal enmity was attributed to any of the prosecution
witnesses. Except the afore-referred statement under section 342
Cr.P.C., the appellant did not opt to appear himself in his defence.
He did not lead any evidence either to rebut the presumption raised
against him on account of the prosecution evidence.
PROPOSITION (III):-

Whether destruction/disposal of property in terms of section 516-A Cr.P.C

has substantially prejudiced the case of the appellant- and have the effect
of vitiating the trial or in the facts and circumstances of this case is it an
irregularity which stood cured by the evidence led and the conduct of the
appellant during trial?

10. Coming to the third proposition, a reference to section 516-A, Cr.P.C.,

would be in order which reads as under:--

"516-A, Cr.P.C. Order for custody and disposal of property

pending trial in certain cases. When any property regarding which
any offence appears to have been committed, or which appears to
have been used for the commission of any offence is produced
before any Criminal Court during any inquiry or trial, the Court
may make such order as it thinks fit for the proper custody of such
property pending the conclusion of the inquiry or trial, and, if the
property is subject to speedy or natural decay, may, after recording
such evidence as it thinks necessary, order it to be sold or
otherwise disposed of".

Appellant's learned counsel relied on a judgment of the Federal Shariat

Court reported in Nawab Ali v. The State (PLJ 1995 FSC 90 and NLR
1995 SD 374) to contend that since the narcotics were destroyed without
notice to the appellant and not in front of the learned trial Court, the
appellant had been prejudiced and merits acquittal. To better appreciate
this point, certain important dates have to be kept in mind i.e application
was filed by the Anti-Narcotics Force for disposal/destruction on
30-5-2000 and notice was issued to the appellant the same day for
16-6-2000. 16-6-2000 appears to be a holiday and the case was taken up
on 17-6-2000 on which date Presiding Officer was on leave and the case
was adjourned to 30-6-2000. However, on 22-6-2000, the learned trail
Court passed the following order:-

"1 This application has been moved under section 516-A Cr.P.C for the
destruction of narcotics recovered in the case.

2. Since the case property falls under definition of Narcotics, the property
be destroyed in accordance with the provisions laid down under
section 516-A Cr.P.C., after retaining necessary samples.

3. Mian Ghulam Hussain, Special Magistrate, Police Station ANF Lahore

is deputed to get prepared the sealed samples from the case
property under his direct supervision. He shall submit a certificate
in this context in the Court giving details of the proceedings".

Despite the afore-referred order, the property was not destroyed forthwith
and the concerned Judicial Magistrate, who was directed by the trial Court
to destroy the narcotics in terms of section 516-A Cr.P.C., after retaining
necessary samples passed the following order after three months on
22-9-2000 (Exh.PJ):-
"1. In compliance with the orders of the Special Judge (Anti Narcotics)
Lahore dated 22-6-2000, the undersigned reached at Police
Station, Anti-Narcotics Force Lahore today where Incharge of the
Police Station produced 20 sealed parcels containing Charas total
weighing 20.800 kgs before me for drawing necessary
sample/samples.

2. On examination these sealed parcels duly numbered have been found

intact and correct in weight. I de-sealed and opened all the parcels
and randomly selected parcel No. 1, 8 and 15 from the above
parcels and separated the same as samples.

3. I have sealed these samples of narcotics and the remaining parcels

under seal bearing words M.G. Hussain Magistrate Section 30 and
handed over all the sealed parcels pertaining to this case to the
Incharge of Police Station, Anti-Narcotics Force, Lahore for safe
custody and further proceedings under section 516-A, Cr.P.C.

Ultimately, after five months of the trial Court's order, on 27,11-2000 and
having destroyed the samples, Mian Ghulam Hussain, Judicial Magistrate
Section 30, Lahore, issued Certificate (Exh.PK) which is to the following
effect:--

"Today on 27-11-2000 at Plot No. 6 of Military Dairy arm Defence

Road near Headquarters Pakistan Rangers (Punjab) Lahore, the
Incharge Police Station Anti-Narcotics Force Lahore produced 17
sealed parcels containing Charas involved in the subject case
before me for destruction. Parcels being 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"

A resume of the afore-referred orders pertaining to the destruction of the

property would show that notwithstanding the order for destruction on
22-6-2000 it was given effect to by the concerned Judicial Magistrate on
27-11-2000. During this period appellant and his learned counsel had been
appearing before the learned trial Court. No objection whatsoever was
raised with regard to the order dated 22-6-2000. The appellant was
represented before the learned trial Court on 17-6-2000, 8-7-2000,
24-7-2000, 35-8-2000, 28-8-2000, 9-9-2000, 19-9-2000, 14-10-2000,
11-11-2000 and on 7-12-2000.

11. The objection to the destruction of the narcotics would have been
relevant if, firstly, the appellant had disputed that the contents of the
parcels recovered whereas the appellant ever since leis arrest never raised
such a plea either before the Judicial Magistrate who granted physical
remand during investigation or at the time of framing of the charge by the
learned trial Court or when his statement under section 342 Cr.P.C., was
recorded. This irregularity or illegality in the afore referred circumstances
would not vitiate trial in view of Explanation to section 537, Cr.P.C.
Secondly, if the Judicial Magistrate had not issued certificates (Exh. PJ &
PK) in terms of section 516-A, Cr.P.C that the samples were retained and
the remaining property was directed to be destroyed in terms of the order
of the learned trial Court. Thirdly if P. W.9 Rana Abad Ali had not
appeared to testify that the properties had been destroyed and their
samples retained in his presence. The precedent case-law reported in
Nawab Ali v. State (PLJ 1995 FSC 90) relied upon by the appellant's
learned counsel is distinguishable on factual plane. In the said case, there
was not much time gap between the date of the order of destruction of its
implementation. Secondly, no evidence had been produced to show that
the property had actually been destroyed.

12. Even otherwise, the said judgment has been revisited by the Hon'ble
Federal Shariat Court in Maiik Talib Hussain v. The State (1998 MLD
506) wherein, at page 513, it was observed as under:--

"--------The Proviso is not independent and 'The Court' used

therein can 'only be interpreted with reference to 'any criminal
Court' in the main provision. The third proviso enacted in the year
1991 also leads to same inference. It appears that the main
provision of section 516-A, Cr.P.C., to which the proviso is tagged
was not placed before the Honourable Judge in case of Nawab Ali
v. The State reported in NLR 1995 FSC 374, and the proviso was
not interpreted in the light of the main provision ......"

A similar kind of objection was raised by the appellant in the afore-

referred case which was repelled by the Hon'ble Federal Shariat Court and
on the same page, it was held as under:-

"Be that us it may, anti notwithstanding the above, the main

question for consideration is whether any defect in or deviation
from the strict compliance of proviso would vitiate the trial or
adversely effect the result thereof, unless it is shown to have
resulted in grave injustice otherwise caused any serious prejudice
to the accused. There is nothing of the sort, however, appearing
from the proceedings nor has the learned counsel for the appellants
shown anything in the contraband material contained in the
samples in the ease is not disputed nor it is disputed or denied that
the same was taken as sample front the Eight Kilograms of Heroin
seized and recovered from the bag in the case. We, therefore, feel
that the technicalities, procedural or otherwise, if any, should not
be given serious thought if the case stands otherwise proved "

PROPOSITION(iv):

Whether the statement of Major Abdul Rab (P.W.4), who acted as an

under-cover officer, without the permission in writing of the competent
authority under section 24 of the Control of Narcotics Substance, Act,
1997, is admissible and whether he was an accomplice not worthy of
credit?

13. Appellant's learned counsel was very critical of the manner in which
the trap was laid and contended that the entire action from the alleged trap
laid by Major Abdul Rab (P.W.4), to appellant's arrest was unauthorized
and illegal and evidence so collected was inadmissible. His precise
objection is two fold. Firstly, that Major Abdul Rab (P.W.4) acted as
under-cover officer without any authorization in writing by the competent
authority under section 24 of Control of Narcotics Substance Act, 1997
and secondly, this witness was an accomplice and his evidence cannot be
relied upon.

Admittedly, this witness did not have written permission of the Federal
Government in terms of the afore -referred' section to act as an: under-
cover officer. But this is an enabling provision catering to primarily a
different situation. Its non-compliance would not make the evidence
inadmissible provided it is otherwise admissible under the Qanun-
e-Shahadat Order and it has not prejudiced the case of the appellant either.
So far as the argument with regard to the evidence of an accomplice is
concerned, the Court has to consider this aspect in the facts and
circumstances of each case. This witness was not a private individual,
negotiating some illegal transaction for some private gain. He was .a
serving Army Officer on deputation with Anti-Narcotics Force who, on a
tip, was trying to spy over and gather some information about the illegal
narcotic trade of the appellant. The practice of deploying detectives and
spies to detect crime is in vogue in Police Department since long. It .has
assumed greater importance on account of various complicated facets of
crime in the modern age. Narcotic and drug smuggling is one of those
crimes which has serious, magnitude. The l Police and the Anti-Narcotics
Force are obliged to resort to such techniques which cannot be taken
exception to unless some malice is shown or prejudice is proved on
record. In P.P. V. A. Thamas (AIR 1959 Madras 166), use of such methods
was approved by High Court. It observed as under:-

"To sum up as pointed by me in Ambujam v. the State, 1953 Mad,

W. N.Cr.156: AIR 1854 Mad 326, unfortunately owing to the
increasing nature of the special enactments and the impossibility
of procuring evidence in any other way and the paramount
necessity of putting down offences of this kind, the use of trap
witness has become widespread and indispensable. The
employment of trap witnesses is in accordance with the best
Hindu, Muslim administrative traditions. I have traced its
historical genesis in the aforesaid decision. A trap witness is not an
accomplice and he does not come under the category of persons
whose evidence cannot be accepted in the absence of material
corroboration. But at the same time as the system of employing
trap witness will lend itself to abuses, Court will closely scrutinize
his testimony. The weight to be attached to his evidence will
depend upon the character of each individual trap witness".

PROPOSITION(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 Narcotics Substance Act, 1997 and what
guidelines this Court lays down in these proceedings?

14. It would be pertinent to refer to the penal provision of the Control of

Narcotic Substances Act, 1997 i.e. section 9 which reads as under:-

Punishment for contravention of sections 6, 7 and 8.---Whoever

contravenes the provision of section 6, 7 or 8 shall be punished
with
 (a) imprisonment which may extend to two years, or with fine, or
with both. if the quantity of the narcotic drug, psychotropic
substance or controlled substance is one hundred grams or less:

(b) imprisonment which may extend to seven years and shall also
be liable to fine, if the quantity of the narcotic drug, psychotropic
substance or controlled substance exceeds one hundred grams but
does not exceed one kilogram.

(c) Death or imprisonment for life, or imprisonment for a term

which may extend to four teen years and shall also be liable to fine
which may be up to one million rupees, if the quantity of narcotic
drug psychotropic substance or controlled substance exceeds the
limits specified in clause (b):

Provided that if quantity exceeds ten kilograms the punishment

shall not be less than imprisonment for life".

Although this provision does not create any distinction between various
kinds of narcotics substance and prescribes only a minimum sentence in
case the narcotics substance exceeds ten kilograms yet this Court has to
consider as to in what cases death should be awarded and in what cases
the imprisonment for life. It is conceded before this Court that Heroin is
the deadliest narcotic and if a quantity of narcotics falls within the
mischief of the afore-referred provision, then the accused should be
visited with the maximum penalty. Yet another circumstance for awarding
the capital punishment could be if a convict undergoing life imprisonment
under section 9(c) of the Control of Narcotic Substances Act, 1997 is
convicted for the second time under the same provision. There is no
provision in our Control of Narcotic Substances, Act, 1997 but in the
Indian Narcotics and Drugs and Psychotropic Substances, Act, 1985 (Act
No.61 of 1985), section 31-A provides death penalty for certain offences
after previous conviction.

15. It is not the prosecution case that the appellant is a previous convict.
The transcripts of the video tape conversation placed on record indicate
that the appellant expressed abhorrence for trading in Heroin even if he
was offered a hefty price. Learned Special Prosecutor Khawaja Sultan
Ahmad, Advocate on Court query, in all fairness, admitted that this part of
the conversation could be considered as a mitigating circumstance with
regard to the quantum of sentence. The learned Additional Advocate-
General Punjab Ch. Muhammad Suleman conceded before this Court that
irrespective of the quantity of Charas recovered, no High Court in
Pakistan has ever affirmed death sentence in cases where Charas was
recovered.

16. In the afore-referred circumstances, while dismissing the appeal we

are persuaded to convert the sentence of death of Rehmat Shah Afridi
appellant into imprisonment for life. The sentence of fine and sentence off
imprisonment in lieu thereof, however, shall remain intact. He shall be
given benefit of section 382-13 Cr.P.C. Death Sentence of appellant is not
confirmed.
N.H.Q/R-65/L Sentence reduced.
;