SH. HAKIM ALI, J.- Through this criminal appeal, Muzaffar Mahmood has challenged his conviction recorded under section 9(c) of the Control of Narcotic Substances Act (XXV of 1997) by the learned Sessions Judge, Bahawalpur on 7.4.2001, by which he was sentenced to suffer life imprisonment and to pay a fine of Rs. 1,00,000/- in default whereof, to undergo sentence to two year's S.I.
2. The case against the petitioner had commenced with the transmission of a writing from Muhammad Afzal Asim SI/SHO, which was registered at No. 01/1999 on 15.1.1999 at 10.00 a.m., at Police Station Anti- Narcotics Force, Bahawalpur. According to the story narrated in the aforesaid written application (Ex.PA), which was reproduced in the shape of the FIR Exh. PA/1, Muhammad Afzal Asim SI/SHO had stated that upon information of an informant, he along with his sub ordinance Constables had arrested Muzaffar Mahmood alias Zafri at Adda Mini Flying Coach, Chowk Fawarra,, Bahawalpur at about 8.00 a.m. In the morning on 15.1.1999. According to the allegations continued in the FIR, Muzaffar Mahmood accused when had dismounted from the coach, which had arrived at the aforesaid Adda of Mini Flying Coach, from Multan was arrested upon indication of Mukhbar from the search of a bag which he was holding in his right hand, it was found that one black shopper had contained charas weighing 8 kilograms, which was lying in one portion and from the other portion of the bag another black shopper had opium weighing 3 kilograms. So, upon this recovery, out of those, 80 grams charas and 30 grams opium was sent to the chemical examiner, who had opined and found that the parcel/packet had actually contained charas and opium. His reports were produced in the evidence as Exh.PD and Exh.PF, in the trial.
3. After the challan was submitted to the Court, learned Sessions Judge charge-sheeted the accused under the offence of section 9(c) of the CNSA, 1997 on 16.9.2000. As the accused pleaded not guilty, so the prosecution was directed to produce its evidence. Hareem Javed, Head Constable, who had recorded the formal FIR in whose custody the parcels had remained was produced as PW-1 while PW-2 Muhammad Hussain, FC appeared to depose that he had handed over two sealed parcels to chemical examiner, PW-3 is Muhammad Ashraf, Constable, who was one of the members of the raiding party while Muhammad Afzal Asim, SI/SHO, Police Station, ANF, Bahawalpur who had conducted the raid, had appeared as PW-4 in the case. After tendering the reports of chemical examiner and giving up the evidence of Muhammad Shafiq, Constable being unnecessary, prosecution closed its evidence. Statement of the accused under section 342, Cr.P.C, was recorded. The accused produced two witnesses in his defence, namely Allah Wasaya DW-1, and Sarfraz DW-2. Allah Wasaya, DW- 1, claiming himself an employee at Adda Mini Flying Coach, Bahawalpur, had stated no such occurrence had taken place at the Adda while DW-2 Sarfraz had appeared to state that in front of his house, accused was residing when he was arrested in the month of Ramzan at about Sehri time by 4/5 persons who had come there on a vehicle. After appreciating the evidence, the learned Sessions Judge, Bahawalpur convicted the accused as stated above on 7.4.2001.
4. Learned counsel appearing on behalf of the appellant submits that in fact the appellant was an informer of PW-4 Muhammad Afzal Asim and when he had asked for the payment of his commission, which had accumulated upto 40,000/-, Muhammad Afzal Asim, SI/SHO instead of payment of commission, had falsely roped in the appellant in this false case. He has further argued that the alleged place of occurrence, which was a busy public place and where persons were coming and going, not a single private person was associated in the alleged raid and search. He has also referred to a contradiction which has occurred in the FIR (Exh.PA/1) and the statement of PW-4 Muhammad Afzal Asim in the Court. Pointing out to the contradiction, learned counsel has stated that according to first information report, the bag had contained two separate black shoppers, one of which contained 8 kilogram charas and the other was consisting of 3 kilograms opium. But while appearing as PW- 4 Muhammad Afzal Asim had deposed in his examination-in- chief that both these articles were wrapped in polythene papers. According to the learned counsel thus contradiction was sufficient to entitle the accused an acquittal from the charge, ln the last he has prayed for leniency in the sentence of the accused as the appellant had no previous history to his account.
5. Learned counsel appearing on behalf of the State had opposed the arguments of the learned counsel for the appellant and has replied that the alleged inconsistency pointed out by the learned counsel for the appellant is of no value because both these articles were recovered from one bag.
6. We have considered the arguments of both the learned counsels and have examined the record of the case.
7. No doubt while appearing PW-4 Muhammad Afzal Asim, SI/SHO had stated that 8 kilogram charas and opium wrapped in polythene paper. But this alleged statement of PW-4 was not confronted to the previous writing (Exh.PA) of Muhammad Afzal Asim. So, no value can be given to such alleged contradiction, lt is also correct that no independent public witness was associated during the search of the accused, yet we do not consider it a case of acquittal on this basis.
Because section 25 of the CNSA, 1997 has exempted the application of mandatory provision of section 103, Cr.P.C, to all those searches and arrests in case under the CNSA, 1997. Police officials are as good witnesses as the public. We have perused the statements of all the witnesses and have found those statements consistent and confidence inspiring. So, we are inclined to maintain the conviction of the appellant.
8. Lt being a case of first offender, who has got no previous record, so we consider it a case of mitigating circumstance where the appellant shall be granted remission in his sentence, ln an earlier case, i.e. Criminal Appeal No. 124-2001/BWP Bakhat Jamal Vs. The State decided on 19.2.2004, this Division Bench had examined the application of clause (c) of section 9 of the CNSA, 1997. My learned brother, Muhammad Farrukh Mahmood, J. Author of the judgment, had very ably dilated upon the use of the words used and sentences provided and their impact on the cases as are mentioned in clause (c) of section 9 of the CNSA, 1997; which has provided death or imprisonment for life or imprisonment for a term which may extend to 14 years. My learned brother has correctly expounded that first too sentences death, or imprisonment for life have been provided for the hardened, relentless, stubborn, unbendable criminal/accused who is involved in many cases or convicted but the involvement or the conviction has not acted to deter him from the repetition of the same offence, while the sentence prescribed or imprisonment for a term which may extend to fourteen years has to be kept in mind in cases of fresh entrants entering into this arena of narcotics dealings. So, the provision of three different sentences in one clause for one and the same offence has got diverse and distinct application and meanings, and award of sentence under section 9(c), CNS Act, 1997 has to be employed in accordance with the facts of each case. So, following the aforesaid principle of precedent case, we have considered the case of the appellant to fall within the third term of punishment, which has provided maximum imprisonment upto 14 years. Appellant who is admittedly a first offender needs leniency, in the imposition of above-noted maximum sentence. Therefore, the sentence of the appellant is reduced to 10 year's R.I. And in default of the payment of fine of Rs. 1,00,000/- sentence of 2 year S.I is reduced to 6 month S.I. However, benefit of section 382-B, Cr.P.C as granted by the learned Sessions Judge, shall be continued to be granted to the appellant. Accordingly, the appeal is decided in the above-noted terms.