' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant Muhammad Naeem Shah son of Nazeem Shah was tried by Special Judge, Gujrat in case F.I.R. No,943 dated 9-9-1999 registered under section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Civil Lines, Gujrat. The trial Court vide judgment dated 13-2-2001 while convicting the appellant under the ibid section sentenced him to death as well as directed him to pay a fine of Rs,2,00,000 or in default whereof to undergo two years' S.I. Through this appeal appellant has challenged his conviction and sentence.
2. The facts of the prosecution case are that on receiving a secret information about the sale of huge quantity of narcotics S.S.P. Gujrat constituted a raiding party which raided at Sofi Hotel, G.T.
Road, Gujrat. In Room No,5 of the said hotel the raiding party found Naeem Shah appellant lying on a bed who on interrogation disclosed that he had a attachecase containing heroin which he had brought from Peshawar with the connivance of one Raza Khan and prior to this he had been selling heroin in different parts of Punjab. On this disclosure the attachecase of the appellant with was lying under the bed was searched and ten kilograms of heroin was recovered. Riaz Ahmad, D.S.P.
After separating one gram heroin secured the remaining quantity through recovery memo. Exh.PA.
The said recovery memo. Was also attested by Muhammad Irshad, S.-I. And Nasir Mehmood Butt, S.-I. The appellant was formally arrested and the investigating agency after complying with the legal formalities submitted challan before the trial Court where prosecution produced seven witnesses to prove the charge against the appellant.
' Muhammad Iqbal, F.C. P.W.1 on 21-9-1999 took the parcels (case property) to the office of Chemical Examiner and delivered the same intact. Irshad Ullah, S.-I. P.W.2 along with Nasir Mehmood Butt, S.-I. P.W.7 was present when huge quantity of narcotics was recovered from the appellant and taken into possession vide recovery memo. Exh.PA which was also signed by them.
Sarfraz Ahmad, S.-I. P. W.3 drafted formal F . I .R. Exh.PB/1. Akhtar Hussain Shah, F.C. P.W.4 kept the parcels (case property) in Malkhana for safe custody and later on delivered the same to the constables for onward transmission to the relevant office. Tahir Farooq Cheema, S.-I. P.W.5 being the member of raiding party was present when narcotics (heroin) was recovered from the petitioner and had also partly investigated the case. Riaz Ahmad, D.S.P. P.W.6 on 9-9-1999 being a D.S.P./S.D.P.O. City Gujrat arranged the raiding party, conducted raid at Sofi Hotel, G.T. Road, Gujrat and recovered a huge quantity of narcotics (heroin 10 kilograms) from the possession of appellant.
On his dictation complaint Exh.PB was written and formal F.I.R. Exh.PB/1 was registered. He also prepared recovery memo. Exh.PA.
4. Trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question, why this case against you and why P. Ws. Have deposed against you?, the appellant replied as under:-- "I am a poor man. My father is a lineman in PTCL in Peshawar. We are 11 brothers and sisters. I am the eldest one. For the livelihood of my brothers and sisters I used to help my father. I used to sell electronic goods etc. In different cities of Punjab. Police falsely involved me in this case. I cannot even think to purchase or sell such a huge quantity of heroin. Original culprits (Mafia) after greasing the palms of police have escaped. I have been made scapegoat. P. Ws. Are police officials."
' Appellant did not make any statement under section 340(2), Cr.P.C. Nor produce any evidence in defence.
5. Trial Court after appraisal of evidence available on record, vide judgment dated 13-2-2001 convicted and sentenced the appellant as narrated earlier.
6. Learned counsel for the appellant while challenging the impugned judgment argued that while conducting raid at the Sofi Hotel, the raiding party never obtained warrants from the competent authority and that in the circumstances, the entire proceedings conducted during the raid were illegal; that after the recovery of narcotics on 9-9-1999 the sample was kept by the police for about twelve days and the prosecution had not given any explanation for the delay in sending the sample to the office of Chemical Examiner. Submitted that according to the prosecution witnesses the samples packet was deposited in the office of Chemical Examiner on 21-9-1999 whereas the report of Chemical Examiner Exh.PD reveals that the sample was received on 22-9-1999; and that in this view of the matter the report of the Chemical Examiner could not be relied upon; that there were contradiction in the statements of recovery witnesses about the mode in which recovered narcotics substance was measured. It was lastly argued that the appellant was a first offender and the trial Court while awarding sentence had taken a harsh view. Conversely, learned counsel for the State while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant.
7. With the able assistance of learned counsel for the parties, we have minutely gone through the record of this case and are of the view that the evidence available on record is sufficient to prove the charge against the appellant. All the recovery witnesses who had deposed before the trial Court were subjected to lengthy and searching cross-examination but we have observed that defence has failed to shatter their credibility nor anything has been brought on the record to show that the said recovery witnesses who belong to the police department had any malice or grouse against the appellant to falsely implicate him in this case. This occurrence took place at 6/7-00 a.m. On 9-9-1999 and at that early hours of the day it was not possible for the raiding party to obtain search warrants from the concerned Magistrate. Under sections 47 and 48, Cr.P.C. Due to the paucity of time apprehending that culprit might not escape, a police officer in order to arrest a person guilty of a cognizable offence can enter into a place without obtaining search warrants. The arguments of learned counsel that raid proceedings without the warrant from Magistrate were illegal have no force.
' No doubt according to prosecution witnesses i.e, Muhammad Iqbal, H. C . P.W.1 and Akhtar Hussain, H.C. (P.W.2) the sample was deposited at the office of Chemical Examiner on 21-9-1999'' whereas the report from the said office i.e, Exh.PD reveals that sample was received on 22-9-1999 but this difference in the date for the deposit of sample at the office of Chemical Examiner is of no help to the appellant because during the \Cross-examination no suggestion was put to the said witness or the Investigating Officer, that the said packet of sample was tampered with.
' The evidence of all the recovery witnesses supported by the report of Chemical Examiner Exh.PD inspire confidence, ring true and in the circumstances of this case, we are persuaded to rely upon the same to uphold the conviction of the appellant.
' As far quantum of sentence of the appellant is concerned, we are of the view that trial Court while awarding death sentence to the appellant has taken a harsh view. Firstly the appellant does not have the notoriety as a drug pusher. Secondly the criteria for awarding sentence as mentioned in section 9 of Control of Narcotic Substances -Act, 1997 is the quantity of narcotics which is recovered from the accused person. According to the proviso to subsection (c) of section 9 of the ibid Act the punishment for the offence shall not be less than imprisonment for life, only when the quantity of narcotics Exceeds TEN kilograms whereas in the present case the quantity of narcotics recovered at the instance of the appellant was only ten kilograms. Similarly the possibility that the quantity of narcotics was less than ten kilograms can also not be ruled out because the evidence on the record is not clear to show that the said weight does not include the weight of the material of the packets in which the heroin was packed. Thirdly, out of ten kilograms only one gram of heroin was sent to the Chemical Examiner for examination.
' In the said view of the matter while dismissing the appeal, the sentence of appellant is reduced to imprisonment for life with benefit of section 382-B, Cr.P.C. 'However, the appellant shall pay fine on the 'same terms and conditions as fixed by the trial Court.
Sentence reduced.