1. ' DR. RANA MUHAMMAD SHAMIM, J .---The appeal against impugned judgment was challenged by all the three appellants whereby they were convicted and sentenced to suffer imprisonment for life and to pay fine of Rs,20,000 each and in case of default each appellant has to suffer R.I. For six months more. The benefit of section 382-B, Cr. P.C. Was also extended to all the appellants.
2. ' The prosecution case against the appellants is that on 16-7-1998 Excise Inspector Muhammad Saleh Kerio, D.I.O. Camp Ubauro along with his staff, namely, EC Rashid Ahmed Mahar, EC Niaz Hussain Channa, EC Allandino Lolai, EC Barkat Ali Shaikh, EC Noor Hussain Memon, EC Farman, Ali Bullo, EC Muhammad Bakhsh Soilangi, EC Muhammad Hussain Khaskheli, EC Abdul Hayee Shaikh and LD Ghulam Mahar while holding Nakabandi started searching the vehicles near Kamoon Shaheed border of Sindh Punjab. Meanwhile, from Punjab side one truck bearing No,PRC-8823 was seen, in which three persons were sitting on the driver seat. On query made by the complainant in presence of Mashirs EC Niaz Hussain Channa and EC Farman Ali Buloo, said persons disclosed their names as Jamil Khan Awan resident of Lal Kile, Tehsil and district Peshawar, being driver, Hassan Beer Awan resident of Peshawar, being second driver and Farhad Khan Awan rsident of Peshawar, being cleaner of the truck. On search of driver Jamil Khan, his identity card and cash of Rs,560 were secured while nothing was secured from remaining two From the dash board, registration book and route permit in the name of Karim of Khayber Agency now Karachi were recovered. In the cabin of truck one secret drawer was noticed containing 48 packets of opium in red cloth. On weighment, each bundle became 4 kilograms and total opium became 192 Kilograms. Two bundles of 4 Kilograms each were sealed separately. The accused informed the complainant party that they are involved in supply of the narcotics on behalf of Hassan Khan of Charsada Road Peshawar and Hanif Khan of Molkiabad District Sawabi who are partners in the spurious trade and the material recovered from them was to be supplied to Abdul Majeed Chandio, resident of near Ranipur and previously also contraband was delivered to him and at that place their man, namely, Hazrat Gul would be present for this purpose.
3. ' Charge against the accused Jameel Khan, Hassan Beer, Farhad Khan and Abdul Majeed Chandio was framed on 18-11-1999 and they pleaded not guilty, and claimed for trial. During trial, accused Abdul Majeed was acquitted on 9-8-2000 on an application moved under section 265-K, Cr.P.C. By the learned 2nd Additional Sessions Judge, Ghotki Hence, this appeal and the appellants were convicted vide impugned Judgment on 12-9-2003.
4. ' The prosecution examined Excise Inspector Muhammad Saleh, who is complainant and Investigating Officer of the Case and Mashir Excise Constable DIO Camp Ubauro Niaz Hussain.
5. ' Mr. Ghulam Muhammad Khan Durani learned advocate for the appellants Nos.2 & 3 submits that the case of all the appellants was on better footings as the appellants are persons who took lift only on the truck in question whereas the alleged recovery was effected from the truck and not from them whereas the acquitted accused was the actual driver of the truck. No proof of entry of leaving of the raiding party and of arrival at Police Station was available on the record as no Roznamcha for such entries was produced and exhibited in the Court though the complainant was cross-examined on this point, that the complainant is also Investigating Officer of this case and also is signatory of the Mashirnama of recovery and being interested his version cannot be believed. He further submits that no private person was associated as witness at the time of search of the vehicle in question though admittedly occurrence took place near Mosque and hospital where people were available, but the complainant chooses to associate of his subordinates. He further submits that in cross-examination complainant/Investigating Officer has explained that though he tried to associate private witnesses available at that time but they refused to become witnesses and on their refusal no legal action was initiated against them though they were authorized to take legal action against them; that admittedly the only two bags weighing 4 kilograms opium were taken as sample for chemical examination whereas no sample was drawn from remaining 46 bags consisting of 184 Kilograms of opium and not sent for chemical examination. He further submits that for the purpose of trial and conviction only 4 Kilograms of opium is to be considered from the whole recovered opium of 192 Kilograms. He also submits that though the samples were drawn on 16-7-1998 and admittedly on the same day, the said samples were handed over to Excise Constable Noor Hassan to deliver the said samples to Chemical Examiner, Sub-Laboratory, Sukkur at Rohri, but there is no explanation offered for withholding the same, for four days and best reasons known to the said constable that he delivered the same on 20-7-1998 and nobody knows where these samples remained four days. Consequently the chemical report lost its evidentiary value and cannot be relied upon. He further submits that Chemical Examiner's report is defective as the contents in that report is not shown about two percent as Morphine/Heroine was not found and mentioned in chemical examination report to ascertain that recovered stuff was opium; that the said constable Noor Hassan was not examined as prosecution witness to explain regarding withholding of samples for four days with him which is fatal to the prosecution and reliance cannot be made on such report for conviction; that the Chemical Examiner's report is not conclusive for the purpose of maintaining of conviction; that the education and qualification of Chemical Examiner has not been mentioned in the report; that the recovery is affected from the joint possession of the appellants. At the same time, he further submits that the appellants Nos.1 & 2 were neither drivers of the vehicle in question nor owner of the vehicle and at the best if it is believed that they were the drivers the prosecution has not been able to bring on record that on whose pointation, the contraband opium was recovered and the conviction based on joint possession is not tenable in law; that no material is brought on record to show that both the appellants Nos.1 & 2 have conscious knowledge about the concealment and presence of contraband opium so concealed in the said vehicle. No driving license was recovered from the appellants Nos.1 & 2 at the time of their arrest and how it is possible by the appellant No,1 being driver and appellant No,2 being co-driver driving the truck without license from all the way to Sawabi after crossing two Provinces i,e, Frontier and Balochistan and entering into third Province of Sindh. Finally he submits that during statements recorded of the appellants under section 342, Cr.P.C. No opium so recovered was produced in the Court and no question was asked from any of them whether the same has been recovered from their conscious possession from vehicle. He further submits that there is no material available on record to connect the appellant No,3, who is conductor/cleaner of the truck whose job was only to clean the vehicle, check the bacterial water etc, during journey and he has to stay up on the truck as Chowkidar. He made reliance on 2002 PCr.LJ 51, 1997 SCM R 543, 2001 PCr.LJ 1762, 1996 PCr.LJ 843, 1971 PCr.LJ 970, 1969 SCMR 362, 2002 PCr.LJ 215, PLD 2004 SC 856, 1996 PCr.LJ 309, 2004 PCr.LJ 1224, PLD 2003 Kar 216 and unreported cases of Altaf Hussain and another v. The State (In Cr. Appeal No,D-103/2002). After placing reliance on the above case laws, he submits that the appellants have already suffered a lot, alternatively their life imprisonment sentence be reduced to already undergone.
6. ' Mr. Mumtaz Ali Deshmukh, learned advocate for the appellant No,1 adopted the arguments of learned Counsel for appellants Nos.2 & 3 and made reliance on the case laws already referred.
7. ' Learned Assistant Advocate General while supporting the impugned Judgment made reliance on the case of Rahim Dad v. The State (2002 PCr.LJ 1506), Munawar Shah v. The State (2004 M LD 200), Amanullah alias Aman v. The State (2000 PCr.LJ 1536) and Sarfraz v. The State (2007 SCM R 830) and submits that in view of samples drawn as two bags only containing 4 Kilograms of Opium whereas no sample was drawn from remaining 46 bags containing 188 Kilograms of opium, the sentence of appellants Nos.1 & 2 be modified from life imprisonment to 14 years as provided under section 9(c) of Control of Narcotics Substances Act, 1997. In support of his above submissions, he made reliance in a case of Waris Khan v. State (2006 SCM R 1051) and in a case of Muhammad Hashim v. State (PLD 2004 SC 856). He, however, concedes that since no active role is attributed to the appellant No,3 who is conductor/cleaner of the truck, as no material is available against him, his conviction be set-aside.
8. ' We have heard both the learned Advocates of the appellants, learned Assistant Advocate General for the State and perused the material available on record and gone through the case laws. During examination of evidence of the complainant it is deposed by him that the appellant No,1 was the driver and appellant No,2 was also co-driver of the truck whereas appellant No,3 was conductor/cleaner of the said truck. All the way from Sawabi Mardan (N.-W.F.P). The appellants Nos.1 & 2 being driver and co-driver and driving the truck on their turn to drive all the way from Swabi (N.-W.F.P) to Sindh Province without any load, duly concealed 192 Kilograms of opium in dash board of truck to deliver the same in Sindh and they were arrested from the vehicle in question near Sindh-Punjab border at Kamoon Shaheed Taluka Ubauro in the broad-daylight and this version of the complainant was corroborated by other prosecution witnesses. The recovered opium of 192 Kilograms duly concealed in the dash board was in the common conscious knowledge of the appellants Nos.1 & 2. No explanation was offered for travelling empty truck without load all the way from Sawabi to the place of occurrence. The case of the conscious possession of 192 Kilograms of opium was proved beyond reasonable doubt. We h:4ve minutely gone through the record.
9. Admittedly only two bags containing 4 Kilograms of opium was taken as sample and same was sent for chemical examination and positive report was received that the stuff sent for chemical examination contains opium having narcotic substances whereas admittedly no sample was drawn out of remaining 46 bags containing 188 Kilograms of opium and for the purpose of conviction, only 4 Kilograms will be considered. We are fortified by the judgment of Honourable Supreme Court in a case of Waris v. The State (supra) wherein it was held that the sample not obtained for chemical examination from each and every packet to prove narcotic substance would not be considered that recovered substance was a narcotic i,e, Charas, opium and morphine etc. The omission and inefficiency, of the officer concerned constrained us to hold that only a small amount of alleged total is proved to be Charas and opium. The contention of learned advocates for the appellants has no force regarding withholding samples for four days, as per Chemical Examiner's report, same was received by him in intact position duly sealed and having date of seal as of 16-7-1998 as deposed by the complainant.
10. As far as non-association of the independent witnesses of recovery and based conviction on the evidence of official witnesses, the Honourable Apex Court (Shariat Appellate Bench) in case of Sarfraz (supra) held that evidence of police official witnesses could be relied upon if their testimony remains un-shattered during their cross-examination and in absence of any rancor, enmity or ulterior motives to implicate the accused in such-like cases. The plea raised on behalf of the appellants has no merits for consideration. In case of Anwar Shah (supra), it was held by the Division Bench of Peshawar High Court that police officials are as good witnesses as any other citizen unless any mala fide is established against them and their evidence can not be brushed aside simply on the bald allegation that they belong to the police and the conviction recorded by the trial Court was maintained in circumstances. It is further held that the provision of section, 103, Cr.P.C. Had been excluded under the provision of section 25, of Control of Narcotic Substances. Act, 1997 and the provisions of section 20 of the Act were directly attracted and non-compliance of section 103, Cr.P.C. Could not be considered. The police officials are as good witnesses as any other member of the public unless any mala fides on his part is brought on record.
11. ' The plea taken by the appellants Nos.1 & 2 that they were not drivers but they are respectable businessm en and took lift on truck to come to Karachi and they appeared as defence witnesses and were examined under section 340 subsection (2) Cr.P.C. But their said claim was not corroborated through any other independent witnesses. They claim that lift was given to them at the request of hotel people at the Sindh-Punjab border but no such persons were examined to support their version. The taking lift and the distance of the place of occurrence and the hotel and Mosque was contradicted in the depositions of the appellants Nos.1 & 2 recorded under section 340(2), Cr.P.C. The case of acquitted accused Majeed Chandio is totally on different footings as his name was disclosed by the present appellants being co-accused during custody which was not admissible. In case of Rahim Dad (supra) it was held that contention of the appellant that the complainant also acted as Investigating Officer of the case has no force as no mala fides and enmity are alleged against the complainant for foisting huge quantity of narcotics upon the appellants.
12. ' In view of the above discussions in our humble view the prosecution has proved its case against the appellants Nos.1 & 2 beyond reasonable doubt on material particulars being the prosecution evidence was consistent, corroborative, direct, cogent, confidence-inspiring and not discrepant, creating dent in the prosecution case. Nothing has been brought on the record that the appellants Nos. 1 & 2 had no knowledge about the presence of illicit substance recovered from the dash board duly concealed and they have no concern with it. The defence plea put to prosecution witnesses at the face of it appeared to be highly misconceived and even improbable in facts and circumstances of the case. The plea taken by the appellants Nos.1 & 2 that they were not drivers and took a lift and when a specific plea is taken in a criminal case, the onus invariably shifts on them requiring to prove the same by producing evidence or at least their plea should be supported by the attending circumstances through corroboration and it should not be unfounded altogether.
13. Admittedly no person from the hotel was produced to support their version that at their request they took lift on the said vehicle. The trial Court rightly appreciated the evidence on record and conviction was recorded against the appellants Nos.1 & 2 acting upon the material available with the trial Court by holding that the prosecution has succeeded to establish its case against the appellants Nos.1 & 2 but erred in recording conviction in respect of appellant Nos.3 against whom there is no material on record to show that he has a conscious knowledge of presence of opium concealed in the dashboard of truck as he was merely a cleaner/conductor and his job was only to take care of the vehicle when on duty on the outer side of the truck and no concern with driving and front seat, and as such his conviction was not warranted. In our humble view the conviction can only be recorded against appellants Nos.1 & 2 to the extent of samples drawn of 4 Kilograms of opium sent for chemical examination which received a positive report. After going through the provision of section 9(c) of the Act that in case the quantity of narcotics substances exceeds one kilogram but does not exceed 10 Kilograms, the appellants cannot be sentenced under first proviso of section 9(c) of the Act to imprisonment for life and when exceeds 10 Kilograms the minimum sentence of life imprisonment be awarded. Since the positive report of only 4 Kilograms is available on record, the sentence for 14 years would serve the purpose.
14. ' In our considered view no illegality, irregularity, infirmity or misappreciation of evidence was pointed out while convicting th.. Appellants Nos.1 & 2. We accordingly while maintaining the conviction of appellants Nos.1 & 2 including fines, dismiss their appeal and modify the substantive sentences awarded to them from life to 14 years rigorous imprisonment, whereas the conviction awarded to appellant No,3 is set-aside. He is acquitted and be released forthwith, if not required in other case. The case laws referred by learned advocates for the appellants are distinguishable and not applicable in this case as every case is to be decided on its on merits.
15. ' By our short order, dated 31-1-2008 the appeal of the appellants Nos.1 & 2 was dismissed with above modification whereas appeal of appellant No,3 was allowed and he was acquitted. The above are the reasons for the same.