' SALIM KHAN, J.-- A Murasila Exh.P.A./1 was prepared by Nausher Khan, S.H.O. Police Station Topi of District Swabi wherein he mentioned that at 10-00 a.m. On 16-10-2002 he along with Sirajur Rehman, Shoaib, Haroon and Fateh Jang were present on Shaheed Baba Check Post, on the information that narcotics would be smuggled to Punjab. A Suzuki motorcar No,7603-IDL of red colour came from Topi side, which was stopped. On checking, 103 packets of Pukhta' Charas were recovered from the Dicky of the said car, which were found one hundred and three kilograms.
Samples of 4 grams were taken from each packet of total 103 kilograms Charas for F.S.L. And sealed, and the remaining Charas was also sealed in separate parcels. There was official number- plate of green colour on the said car, the driver of which had on his head a black cap, on which the words "N.-W.F.F'." were written. The driver identified himself as Khan Zeb son of Amir Khan, resident of Yakatoot Peshawar, while the other person sitting with him on the front seat identified himself as Fida Muhammad son of Tila Muhammad of Dabgari, Peshawar. F.I.R. No,575 dated 16-10-2002 of Police Station Topi, District Swabi, was recorded at 11-20 a.m. On the same day.
2. The investigation was completed. The F.S.L. Report No,13419 dated. 5-11-2002 is regarding the motor car in-question. The F.S.L. Report No .13245 dated 1-11-2002 is regarding 103 parcels, each of which contained 4 grams, and it is to the effect that it was Charas in all the parcels, their seals were found intact, and the seals were opened in presence of the Chemical Examiner and Chemical Expert of F.S.L. Peshawar, which contained the said samples bearing 3 seals in the marks of N.R.
3. The prosecution examined Abbas Khan, S.-I. As P.W.1 who stated that he had submitted an application Exh.P.W.1/1 to the Motor Registration Authority/Excise and Taxation Officer, Islamabad, for verification of the motorcar Suzuki No,7603-IDL Model 1996. He exhibited the report of the Motor Registration Authority as Exh.P.W.1/2, which is that the said car was not so registered. He exhibited his application as Exh.P.W.l/3 submitted to F.S.L. And the report of F.S.L. Is Exh.P.W.1/4. The defence objected that the original application of Exh.P.W.l/3 was not placed on file. On cross-examination, he admitted that, in the registration copy, the names of the accused were not mentioned. Mushtaq Hussain H.C. (P.W.2) had recorded the F.I.R. He further admitted that initially in the Murasila sections 468/471 of the Pakistan Penal Code, 1860, were not mentioned, and that he had not recorded the statement of Fateh Jang F.C.
4. Sirajur Rehman H.C. Was examined as P.W.3, who was the witness of the recovery, and stated that the Investigating Officer had taken into possession 103 kilograms Charas lying in the Dicky of Suzuki motorcar No,7603-IDL. He stated that Charas was P.1 with a cap of black colour P.2, on which "N.-W.F.P." was written. He further stated that the samples were prepared in his presence. A mobile phone P.3 was also recovered by the Investigating Officer. He stated that the quantity of Charas had been destroyed by the order of the Sessions Judge, Swabi, the copy of which was Exh.P.W.3/2, under the supervision of the Judicial Magistrate, and the certificate to that effect was Exh.P.W.3/3.
These documents were exhibited without any objection from the side of the accused. This witness further stated that the number of this case was shown at serial No,23 of the photocopy Exh.P.W.3/4, which was a list of the cases in which the narcotics were destroyed. The defence, however, objected to this document on the ground that the case property was not produced before the Court, therefore, the document could not be exhibited according to law. The samples from the bulk of Charas Exh.P.1 at the time of destruction were, however, produced in Court. The signature of the witness on the recovery memo. Was undated. No further important material was taken out from this witness on cross-examination.
5. Nausher Khan, Inspector (P.W.4) narrated the facts of recovery of 103 packets of the Charas from the above mentioned motorcar, preparation of samples and other relevant facts. On cross- examination, this witness stated that no registration book was recovered from the motor car, therefore, he did not know about its ownership. He also did not know about the ownership of mobile phone. A suggestion was put to him that the owner of the motor car and the Charas was allowed by him to go free and the accused facing trial was made scapegoat, which he denied. This suggestion contained the admission of recovery of the motor car and Charas. He did not know if the accused were previous convicts or not. The prosecution evidence was then closed on 6-1-2004.
It was on 14-1-2004 that, as per directions of the Court in the order-sheet dated 6-1-2004, the Public Prosecutor produced the cap and mobile phone in Court which were already exhibited as P.2 and P.3, but subject to objection by the counsel for the accused that the learned P.P. Was not legally authorized to record any statement at the said stage of trial.
6. On completion of the trial and after hearing arguments, the learned Special Judge, Swabi, vide is judgment, dated 16-6-2004, convicted both the accused Khan Zeb and Fida Muhammad under section 9 of the Control of Narcotic Substances Act, 1997, and each of them was sentenced to life imprisonment and a fine of Rs,10,000, or in default of payment of fine, each of the accused was to suffer one year's S.I. They were also convicted and sentenced under sections 419/171/472, P.P.C. The benefit of section 382-B, Cr.P.C. Was extended to the accused, and it was ordered that all the sentences would run concurrently. As for motor car, it was decided that a separate case regarding its ownership will be conducted. Both the accused then submitted Jail Criminal Appeal No,576 of 2004 jointly with Criminal Miscellaneous No,338 of 2004 with the request that a counsel be appointed for them.
7. We heard Mr. Abdul Fayaz Khan, Advocate, for the appellants, Mr. Muhammad Ayaz Khan, D.A.-G.
For the State, and perused the record of the case.
8. The learned counsel for the appellants contended that as no case property was produced before the Court, except the alleged samples thereof, therefore, the case against the accused did not fall under section 9(c) of the Control of Narcotic Substances Act, 1997. The learned D.A.-G.
Contested the contention on the ground that the samples were taken from the total case property and were exhibited in Court, while the remaining case property was destroyed in accordance with the order of the competent Court and a certificate to this effect was given by the Judicial Magistrate, under whose supervision the destruction was conducted.
9. The record, however, speaks differently. An application copy Exh.P.W.3/2 was submitted by Rahat Ali, A.S.-I. Under section 516-A, Cr.P.C. That according to letter No,2/10-AS/91, dated 14-1-1992, samples be allowed to be taken from the narcotics and order of their destruction be issued. This application had the order dated 10-9-2003 of the learned Sessions Judge, Swabi and it was forwarded to him on 9-9-2003. There is another application dated 8-3-2003 of the same A.S.-I., which also contained the order and signature of the same learned Sessions Judge to the same effect. The certificate issued by the learned Civil Judge/Judicial Magistrate, Swabi is to the effect that as per directions of the Honourable Sessions Judge, Swabi, and after taking certificate from the prosecution regarding the provided list of decided cases of District Swabi, to the effect that all the cases mentioned in the list are decided cases and their periods of appeals/revisions have expired and that the contraband are no more required to the Courts of law, different drugs consisting of Charas weighing 72.225 Kgs. Opium weighing 0.429 Kgs., heroin weighing 7.406 Kgs.
And 2 bottles of alcohol which were the cases properties of the decided cases, were destroyed in his presence and supervision after observing all the legal formalities on 4-10-2003 at 4-00 p.m. At the vacant site near C.I.A. Office, Swabi. A photocopy of the list has, however, been placed on the file, subject to objection by the accused, wherein at Sr. No,23 CaseF.I.R. No,575, dated 16-10-2002 is mentioned. The original of this list was never produced before the Court. The copy, in the absence of the original, was not admissible in evidence. It was not proved on record that the original was either lost or destroyed. Permission for production of the copy as secondary evidence was never granted through a clear order after hearing the accused.
10. The above record shows that only 72.225 Kgs. Charas as a whole was destroyed under the said certificate. The quantity of the Charas in this case alone was 103 Kgs., which is not covered by the said certificate. It appears that a photocopy of the list of all the cases of narcotics written by hand has been placed on the file, irrespective of the fact as to whether those cases were already decided or were pending. There is no specific order regarding the destruction of the Charas mentioned in this case either by the learned Sessions Judge, Swabi, or by the learned Judicial Magistrate, and there is also no certificate with regard to the proceedings under section 516-A, Cr.P.C. For the purposes of this case. The prosecution has failed to prove that 103 kilograms Charas minus the quantity of the samples ever existed and was destroyed with the permission of a competent criminal Court. The statement of the witness to the recovery memo. Needed corroboration, and the material corroboration in the shape of the case property itself was either withheld or destroyed without the order of a competent Court. Criminal cases are related to personal freedom of the accused, in which the benefit of every doubt has to be given to the accused. The Investigating Officers of such cases, therefore, have to be competent and vigilant, and should not facilitate the creation of doubt by their own commissions and omissions.
11. The non-production of the case property at the time of trial, in the absence of any order or certificate in respect of their destruction, creates serious doubt about the existence of the case property. The evidence of the prosecution on all other material facts is confidence inspiring, except the bulk and actual weight of the narcotics. It was the duty of the Investigating Officer to keep the case property intact and produce before the learned trial Court, unless an order was obtained from the competent Court to destroy the said property by keeping samples thereof. In the absence of availability of the total quantity of 103 kilograms narcotic at the time of trial, or the order of the competent Court for their destruction with an order to keep samples thereof, and the certificate of such destruction, benefit of doubt has to be extended to the accused. It has, however, been proved that, at least, 412 grams Charas, as per samples, was recovered from the possession of the accused.
12. It was argued that both the accused-appellants were not the owners of the said car and they had no conscious knowledge of the existence of narcotics in the dicky of the car driven by Khan Zeb accused in which Fida Muhammad accused was sitting on the front seat. In the circumstances of this case, however, it cannot be expected that such huge quantity of the narcotics, as alleged in this case, could be placed/kept in the dicky of the motor car without the conscious knowledge of the accused-appellants. A plea was taken by Khan Zeb accused in his statement under section 342, Cr.P.C. That he was a poor man and was working as a daily wage labourer in Ghazi Project at that time, which he did not prove by any evidence. Fida Muhammad simply stated that he did not know about the story of the prosecution. Both the accused-appellants, however, could not prove that what was the purpose of their presence on the scene of occurrence and how they were travelling in a motor car which was neither owned by them nor shown to had been specially given to them by a certain person for travelling, or taking it, to Peshawar. They could not create any other doubt in the prosecution story.
13. The learned trial Court could use his powers under section 540, Cr.P.C. Regarding the articles produced by the Public Prosecutor, with a chance to the accused to cross-examine the witness of their production. The amount of fine was not proportionate to the quantity and value of the allegedly recovered Charas. But there is no criminal revision before us and we are going to reduce the sentence of imprisonment for the reasons already given. The period of simple imprisonment in default of payment of fine is not commensurate with the amount of fine and we, therefore, are going to reduce it.
14. In the circumstances of this case, and for the reasons mentioned above, we maintain the convictions of the appellants, but reduce their sentences from life imprisonment awarded to them through the impugned order under section 9 of the Control of Narcotic Substances Act, 1997, to five years' R.I. And the fine imposed by the impugned order shall remain intact. The imprisonment in default of payment of fine is reduced from one year's S.I. Each to six months' S.I. Rest of the punishments are kept intact. All the sentences shall run concurrently and the benefit under section 382-B, Cr.P.C. Already extended by the learned trial Court shall remain intact. With this modification in sentences, this appeal is dismissed.
Sentence reduced.