1. ' SYED ZAKIR HUSSAIN, J.---By this common judgment, we intend to dispose of Criminal Appeal No,312 of 2009 (filed by appellant Abdul Ghani Ghano) and Criminal Acquittal Appeal No,43 of 2010 (filed by the State) arising out of the one and the same judgment passed by the learned Special Judge, C.N.S. Court No,1, Karachi, on 17-11-2009, in Special Case No,128 of 2007, whereby the appellant was convicted and sentenced to suffer R.I. For seven years and fine of Rs,100,000, in default whereof to undergo S.I. For six months more. Being aggrieved by and dissatisfied with the judgment, the appellant preferred criminal appeal for setting aside the judgment and State filed criminal acquittal appeal for enhancement of the sentence awarded by the trial Court referred to above.
2. By our short order dated 27-5-2010, for reasons to be recorded separately, we dismissed the criminal appeal as well as criminal acquittal appeal along with the applications fixed for hearing on the said date, however, the A quantum of sentence awarded to the appellant by the trial Court was reduced from seven years' R.I. To that of five years' R.I. The following are the reasons for the same.
3. ' Briefly stated, the facts are that on 27-10-2007 the complainant ANF Inspector Mir Badshah accompanied by H.C. Jaffer Nadeem, PC Muhammad Nasir Khan, PC Shamrez and other ANF staff left the ANF Police Station at about 0700 hours vide Entry No,11 and having picked up the spy/informer from near Kala School, reached the house of the appellant at 0800 hours and having apprehended him, secured from his personal possession, a black colour bag when he was on his motorcycle bearing Registration No,KDE-2170, on pointation of the spy. On search of the secured bag, two plastic thelies containing brown colour heroin powder, were found, and on interrogation on the spot, the appellant disclosed that certain other quantity of heroin powder and Charas were lying at his residence. In the meantime, three persons having come over there being supporters of the appellant opened fire against the police party which responded the same from its official weapons whereupon they managed to escape. The appellant disclosed his afore-mentioned particulars and those of the said assailants as Roshan Ali @ Rasho, Hameed Abro and Hanif @ Choha. Thereafter, the police party searched out the house and recovered one white cloth Theli from a wooden Almirah, two foil packets of Charas (in shape of rods, 145 in number), one plastic Theli containing heroin purries from one room on the upper storey of the house, and from other room, the police secured ammunition and Pakistani currency notes amounting to Rs,696,579. The plastic Thelies containing heroin powder recovered from the said bag, when weighed, were, found to be of 1225 grams each, (total 2.450 kg), whereas purries of heroin powder secured from the house of the appellant when weighed, were found to be 160 grams, and out of the recovered heroin, three samples of five grams each, were drawn and sealed while remaining heroin powder, was also sealed separately and similarly packets of Charas weighing 1.780 Kg were sealed and sent for chemical examination. Accordingly, the appellant was arrested and a memo of recovery and arrest was prepared on the spot, and the contraband substances and motorcycle, were brought to the Police Station where the instant F.I.R. Was registered against the appellant. After completion of investigation, the Challan was submitted in the trial Court wherein the other culprits were shown absconding. Formal charge was framed to which he pleaded 'not guilty' and claimed to be tried.
4. ' Prosecution examined P.W.1, PC Muhammad Nasir Khan and P.W.2 Assistant Director Mir Bakshah, the complainant/Investigating Officer of the case, who produced Memo of recovery and arrest, and F.I.R., Roznamcha entries, F.I.R. No,260 of 2007 under section 353, P.P.C., and F.I.R. No,261 of 2007 under section 13-E Arms Ordinance lodged at Police Station New Karachi Industrial Area and chemical report respectively. The statement of appellant under section 342, Cr.P.C. Was recorded wherein he denied the prosecution case and claimed to be innocent but he did not examine himself on oath nor led his defence.
5. The perusal of the impugned judgment goes to show that the witnesses of the prosecution gave the evidence in support of the case and their cross-examination conducted by the defence failed to shatter the same and, therefore, the learned trial Court has rightly come to the conclusion that the prosecution has, established the case to the effect that the alleged narcotic substances were secured firstly from the personal possession of the appellant, and secondly, from his house on his pointation in the respective quantity mentioned in the common memo, before the official witnesses. The Expert report has also been obtained in the matter in regard to the secured narcotic substances, which is in affirmative.
6. ' There is no reason appearing in the matter discarding the witnesses to any extent, as to the apprehension, search, recovery and arrest etc. And to the expert report referred to above, as well as other material aspects interlinked therewith. The defence not only seems to have failed to shatter the prosecution evidence in cross-examination but also failed to take any specific defence plea nor it made out a case of balance of probability as to the alleged innocence of the appellant throughout the case.
7. ' The learned Special Prosecutor has also rightly contended that the amount of Rs,696,579 so recovered from the house of the appellant, together with the said contraband stuff, is a huge amount and it is hard to assume that the same could be foisted together therewith just to falsely implicate the appellant for no obvious use and as such, no dubiousness seems to have possibly been spelt out against the prosecution, in the circumstances of the case.
8. ' We have heard Hussain, Advocate for the Abida Parveen Channer, Prosecutor, ANF, and the then Investigating Officer Meer Badshah. The learned Special Public Prosecutor states that the said recovered amount is liable to be forfeited in favour of the State being crime proceeds but she has failed to point out any evidence substantiating her such plea and since there was no such evidence at the trial, the learned trial Judge rightly allowed the same to go to the appellant.
9. We, therefore, find no infirmity, in the impugned judgment particularly in terms of the discretion exercised by the learned trial Judge as to the sentence awarded to the appellant, which though claimed as erroneous by ANF in its appeal but stands unsubstantiated at all, throughout.
10. Consequently, the criminal acquittal appeal being devoid of force, is accordingly dismissed.
11. Likewise, as regards the criminal appeal filed by the appellant, Abdul Ghani, we do not find any error in the impugned judgment, and taking into consideration that the appellant is first offender and sole bread-earner of his family, while dismissing his appeal together with the listed- applications, do hereby reduce the quantum of punishment awarded to him from seven years' R.I.
12. To that of five c years' R.I., without disturbing the findings as to the imposition of fine of Rs,100,000 and benefit of section 382-B, Cr.P.C. Which shall remain intact.