1. ' IMAM BUX BALOCH, J.---Through this criminal appeal, appellants have assailed impugned judgment dated 8-5-2007 passed by learned Sessions Judge/Special Judge for C.N.S. Jacobabad in C.N.S Case No,10 of 2006 re: State v. Asmatullah and others arising out of Crime No,94 of 2006 of Police Station Saddar Jacobabad, registered for an offence under section 9(c), Control of Narcotic Substances Act. Whereby the appellants have been convicted and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs,500,000 each and in default of payment of fine they shall further suffer R.I for one year each.
2. ' Briefly the facts of the prosecution case are that on 3-8-2006 complainant SIP Mukhtior Ahmed Soomro along with PC Akber Ali, left Police Station in Government vehicle bearing No,SP 6020 driven by driver/PC Nawab Khan vide Roznamcha Entry No,13 for patrolling within the jurisdiction and during patrolling near Police Post Umrani Laro PC Karim Bux informed the complainant on mobile phone that he received spy information that one Mini, Heno Truck bearing No,PN3357 left from Ouetta for Karachi and near to cross in which Charas is lying in the palal/dry grass. On receiving such spy information, the complainant reached at Umrani Laro (curve) where LPC Zahid Islam, PC Karim Bux, PC Abdul Rashid, PC Liaquat Ali, PC Peer Bux and PC Ghulam Qadir were already present there. The complainant along with them started checking and the complainant informed TPO Saddar Arbab Ali Soomro through mobile phone. In the meanwhile ASI Wazir Ali Mangi, Line Officer Police Lines. Jacobabad come there in Govt. Vehicle TPO along with subordinate staff also came there in Govt. Vehicle. At about 1200 hours the pointed Heno Truck No,3357 came in which palal dry grass) was lying. On the front seat of the said truck three persons were sitting. The complainant got stopped the vehicle and took search and found nine plastic bags. The complainant party opened the bags and found slabs of charas lying in the bags. Complainant made enquiry from them about names and charas. The accused who was driving the Heno Truck disclosed his name to be Asmatullah son of Haji Salahuddin Kakar Pathan, other two persons disclosed their names to be Abdul Wahid Balo and Azizullah son of Yar Muhammad Kakar Pathans all resident of Kuli Lahran Tehsil Huroomzai Syedan Pisheen and further disclosed that they brought charas from Pisheen and sale the same at Karachi. The slabs of charas were counted through PC Zahid Islam under the supervision of TPO which were 358 slabs and weighing about nine mounds and seven kilograms.
3. The complainant associated A.S.-I. Wazir Ali Mangi and PC Karim Bux as mashirs and separated one slab from each bag and sealed the same as samples and remaining charas sealed in the same bags. The complainant took personal search of the accused and secured ten notes of hundred currency notes total Rs,one thousand from the front side pocket of accused Asmatullah and nothing was secured from the possession of remaining accused. Thereafter complainant prepared such mashirnama of arrest and recovery and then the arrested accused along with recovered property were brought at Police Station where the F.I.R was lodged on behalf of the State to the above effect.
4. ' Usual investigation followed and in due course the case was challaned and the formal charge was framed by the trial Court against the appellants to which they pleaded not guilty and claimed to be tried.
5. ' In support of its case, the prosecution examined complainant SIP Mukhtiar Ahmed Soomro at Ex.8.
6. He produced copy of Roznamcha Entries Nos.13 and 14 at Exh.8-A, mashirnama of arrest and recovery at Exh.8-B, F.I.R at Exh.8-C and chemical report at Exh.8-D, SIP Wazeer Ali at Exh.9 and thereafter the DPP for the State closed the side of prosecution vide statement at Exh.10.
7. ' The statements of accused under section 342, Cr.P.0 were recorded at Exh.11 to Exh.12 wherein they denied the allegations levelled by the prosecution against them and the accused examined themselves on oath under section 340(2), Cr.P.0 and examined D.W. Rehmatullah in their defence and the side of accused was closed vide statement at Exh.70.
8. ' After hearing learned counsel for the parties, the trial Court recorded the above impugned judgment whereby the appellants were convicted and sentenced as mentioned above.
9. ' We have heard learned counsel for the parties and perused the material brought on record.
10. ' It is mainly contended by learned counsel for the appellants that all the prosecution witnesses in this case are police officials. He has pointed out that at the trial, the prosecution has only examined complainant SIP Mukhtiar Ali Soomro and Mashir SIP-line Officer Wazir Ali. Learned counsel has further pointed out that it does not appeal to a prudent mind that appellants allegedly taken narcotics from Pishin in their vehicle and covered a long distance of 300 kilometers but they were not checked in the way. He has also contended that allegedly 358 slabs of charas were recovered while during examination-in-chief the complainant stated that he had secured 368 slabs from the truck while mashir Wazir Ali has stated that they recovered 350 slabs from truck, which also creates dent into the veracity of the prosecution case against the appellants. As per F.I.R. The complainant taken one slab from each plastic bag containing charas in the shape of slabs thus he had not taken sample from the total slabs and he had not taken samples from all the slabs alreaedly recovered from the truck therefore, the appellants can not be held responsible for the whole recovery of narcotics even if the chemical report is positive. He has also pointed out that F.I.R in this case was lodged on 31-8-2006 while the charas was sent to Chemical Examiner on 14-9-2006 after delay of 14 days but the prosecution is silent to offer any explanation for such delay in sending samples to the Chemical Analyzer creating doubts that the complainant has managed alleged recovery of charas from the appellants. Such delay in sending samples to the Chemical Analyzer is not regarded in the eyes of law unless it is justified by any cogent reason which is lacking in the case in hand. In fact no such incident was taken place as alleged but the appellants are labourers and were going to Karachi when they were intercepted by the complainant and demanded N.I.Cs on which some altercation taken place between the appellants and complainant therefore; he managed the above false case against them. In this regard the D.W. Rehmatullah also confirmed the position that the appellants are labourers and he had left them in wagon who were going to Karachi. In learned counsel while pointing out the contradictions in the prosecution evidence: has urged that the trial Court has failed to appreciate the material brought on record and passed the impugned judgment in undue haste which is only result of non-appraisal of the material and evidence brought on record. Learned counsel has further pointed out that the R and Ps of the case with rest of record of the trial Court was burnt to ashes by the provoked mob in protest on assassination of Mohtarma Benazir Bhutto. Finally he has urged that the prosecution has failed to bring home the guilt of the appellants beyond shadow of reasonable doubt and in view of the above mitigating circumstances, the appellants are entitled to the lesser punishment.
11. ' On the other hand learned State counsel, in view of the above position, while considering the above mitigating circumstances has conceded to reasonable reduction in the sentence awarded to appellants by the trial Court.
12. ' With the help of learned counsel for the parties, we have also scanned the evidence brought on record.
13. ' P.W./complainant stated in his examination-in-chief that on the day of incident he along with his subordinate staff was on patrol duty when PC Abdul Karim received spy information regarding availability of charas in a Truck No,3357 PN coming from Quetta for Karachi. On such report, the police party headed by complainant reached at the pointed place where the Line Officer ASI Nazeer Ali Mangi also came there along with a police party. The complainant by disclosing the above position, sought help from the above police party. The complainant further stated in his examination-in-chief that also called on mobile phone to TPO Saddar Jacobabad for help who also reached there. Later they started checking of 'vehicles and during the course the said truck came there which was stopped and the same was found loaded with dry grass in which three persons were apprehended and on checking charas was found lying in the rear side of the truck by removing dry grass. The accused apprehended on inquiry disclosed their names as present appellants and from their personal search ten notes of Rs,100 were recovered from only accused Asmatullah. He further stated that PC Zahid Hussain brought the scale from Rice Mill and the recovered charas on weighing became 9 mounds and 7 kg in the shape of 368 slabs. He further stated that they separated one slab from each slab for sending the same for chemical examination which was sealed separately and the remaining charas was sealed in the plastic bags. He also stated that associated mashirs ASI Wazeer Ali and PC Karim Bux to attest the recovery and arrest and he prepared such mashirnamas under signatures of mashirs. Later he lodged the F.I.R. In his cross-examination, he has admitted that he received spy information at Qadri Darbar Quetta Road, Jacobabbad while as per F.I.R it was PC Karim Bux of Police Picket Umrani Laro who contacted the complainant that he has received spy information about the narcotics being carried in a truck. He further admitted that so many vehicles cross from the place till the above truck reach there but they did not check any other vehicle. On the contrary, he himself stated in his examination-in-chief that they reached at the pointed place and started checking of vehicles. He admitted that at the time of search of truck they found sitting accused Asmatullah on driver seat. He further admitted that he did not secure the documents of the vehicle. He further stated that they brought some quantity of dry paddy grass along with the vehicle at the police station He stated that they tied the hands of the accused with handkerchief which were available with the police constables. He stated that he brought the truck through PC whose name he does not remember.
14. ' P.W. Wazeer Ali repeated the same story in his examination-inchief as stated by the complainant except differing the number of slabs of charas as 350 while complainant had stated in his evidence 368 slabs. In his cross-examination he also admitted that they did not check any other vehicle except the particular vehicle of the accused. He admitted that the place of incident is located at National Highway which is a busy route but none from the vicinity came there. He also admitted that the S.H.O. Had not taken sample from each slab of the slabs of charas recovered from the truck for chemical examination.
15. ' On the other hand, D.W Rehmatullah examined by the appellants in their defence stated in his examination-in-chief that accused Asmatullah is his brother, co-accused Azizullah and Abdul Wahid are sons of his uncle and they left their house for labour in the one and same vehicle from Pishin. Thereafter they came to Quetta and then Asmatullah and Abdul Wahid left Quetta for Karachi. I also stated that he got seated Asmatullah in a wagon and went to Quetta City and after 5/6 days he came to know that the accused have been taken away by the police. However, learned DPP for the State did not cross-examine him though chance was given.
16. ' We have carefully considered the submissions of the learned counsel for the parties and properly assessed the material brought on record.
17. ' From the record it appears that the R and Ps of the case were reported by the trial Court vide letter dated 10-7-2009, to have been set on fire by the provoked mob in the protest against assassination of Mohtarma Benazir Bhutto therefore, the parties had previously prayed for remand of the case for retrial of the case but the learned Division Bench of this Court vide order dated 15-7- 2009, in view of the fact that the certified copies of F.I.R. Challan, mashirnama of arrest, Search.
18. Recovery of charas and vehicle, Deposition of P. Ws SIP/complainant Mukhtiar Ahmed and P.W Mashir SIP Wazir Ali and deposition of D.W Rehmatullah as well as attested copy of Chemical Analyzer report were brought on record by the learned counsel for the appellants, ordered that appeal can be decided on the material available on record.
19. It appears that the police party while on patrol duty received spy information, and held checking at the pointed place and recovered 9 plastic bags containing charas weighing 9 mounds and 7 k.g.
20. From the truck in the shape of 358 slabs in which the present appellants were riding. The appellants were apprehended and such mashirnamas of arrest and recovery were prepared and one slab from each plastic bag was taken as sample and sealed separately. The weight of each slab is not mentioned in the F.I.R. In such a situation the appellants cannot be held responsible for whole consignment of charas even if the Chemical Examiner Report is positive.D.W. Rehmatullah was examined by the appellants in their defence who confirmed that the plea taken by the appellants that they are labourers, stating that accused Asmatullah is his brother and other accused Azizullah and Abdul Wahid are his cousins. He along with appellants Asmatullah and Abdul Wahid together left house in one and same vehicle and came to Pishin and thereafter they went to Quetta from where appellants went to Karachi. No doubt D.W Rehmatullah happens to be close relative of appellants but he was not cross-examined by the learned DPP though chance was given. After considering all the aspects of the prosecution case, we are of the view that mitigating circumstances are available with defence for lesser punishment, as the prosecution has failed to bring on record any document to show that the appellants are involved in such-like cases previously. We have also observed that chance be given to appellants to rehabilitate themselves and to pass a good life in future.
21. ' In view of the above discussion, we find that there are mitigating circumstances in the case of prosecution which suggests that the appellants are entitled to be awarded lesser punishment therefore, the sentence and conviction awarded to the appellants by the trial Court under impugned judgment, is altered from life imprisonment to R.I for 14 years and the sentence of fine is also altered from Rs,500,000 each to Rs,100,000 each and in case of default of payment of fine, the appellants shall suffer R.I for six months more and the benefit of section 382-B, Cr.P.C. Is also extended to the appellants.
22. ' With the above modification in the sentence and conviction the appeal was dismissed by a short order dated 18-5-2010 and these are the reasons for the same.