1. ' IMAM BUX BALOCH, 3---Through this appeal, we propose to decide Criminal Jail Appeal No, D-41 of 2009. The appellant through this appeal, assailed the judgment dated 10-6-2009 passed by the learned Sessions Judge/Special Judge Kashmore at Kandhkot convicting and sentencing the appellant to suffer R.I. For life and to pay fine of Rs.100,000. In case of default of payment of fine, the appellant/accused was directed to suffer S.I. For one year more for offence punishable under section 9(c), Control of Narcotic Substances Act, 1997. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. ' The prosecution to F.I.R. Is that on 13-12-2007. Assistant Excise and Taxation Officer, Abdul Latif Pitafi received spy information. In response to the information, he along with his subordinate staff namely Anwar Ali Excise Inspector, Excise Constable Rafique Ahmed, Bashir Ahmed, driver Excise Constable Ghulam Hussain and Excise Dafadar Ali Goher left Excise Police Station Kashmore Circle vide Roznamacha Entry No,1 to place of recovery near Israr Khoso Patrol Pump Kandhkot Kashmore road. It is alleged in the F.I.R. That during Nakabandi, one Truck bearing No,C-9495 happened to come from Kashmore side. It was stopped by Excise officials. Two persons were in the Truck.
3. Complainant apprised both the persons about the Excise laws and Rules. Driver disclosed his name Akbar Khan son of Wazir by caste Gujar Khail resident of Mengora Taluka and District Swat and cleaner of the Truck disclosed his name as Khasta Khan son of Khalid Khan by caste Moosa Khail resident of Mengora Taluka and District Swat. Truck was loaded with stones. Search of the Truck was conducted by unloading the stones Excise Officials found 188 bags, full of Charas wrapped in white plastic bags. Each bag containing 20 bundles and weight of each bundle was 20 kilograms.
4. Entire Charas, recovered from the vehicle was weighed, which became 3780 Kilograms. Out of the same, 5 Kilograms Charas were separately sealed for chemical analysis. Remaining Charas was also sealed in the bags. Personal search of accused driver Akbar was conducted, from his possession one driving license, cash of Rs.4570/- and his NIC was recovered. From the personal search of accused Khasta Khan, nothing was recovered. Mashirnama of arrest and recovery of Charas was prepared by Abdul Latif Pitafi, Assistant Excise and Taxation Officer in presence of mashirs Excise Dafadar Ali Gohar and driver Excise Constable Ghulam Hussain. Accused, case property and Truck were brought to Excise Police Station Kashmore Circle, where Abdul Latif Pitafi Assistant Excise and Taxation Officer lodged a case against both the accused on behalf of the State vide Crime No, 1 of 2007 for offence punishable under section 9(c), Control of Narcotic Substances Act, 1997.
5. ' Complainant/Investigating Officer recorded statement of witnesses under section 161, Cr.P.C.
6. Sample was dispatched to chemical analyzer for analyzing and report. It is very surprising that during investigation accused driver Akbar Khan committed suicide. After investigation, challan was submitted before the competent Court of law.
7. ' Charge was framed under section 9(c), Control of Narcotic Substances Act at Exh.3, for which appellant/accused Khasta Khan did not plead guilty and claimed to be tried. At the trial Abdul Latif Assistant Excise and Taxation Officer was examined as P. W.1. At Exh.4, he has produced Mashirnama of wardat, arrest and recovery at Exh.4-A. F.I.R. At Exh.4-B, entry dated 13-12-2007 at 5:00 a.m at Exh.4-C. Departure entry dated 14-12-2007 at 8:45 a.m at Exh. 4-D, Chemical Examiner report at Exh.4-E. Excise Dafadar Ali Gohar as P.W.2 at Exh.5. Statement of appellant Khasta Khan at Exh-7. After recording statement, learned State counsel moved an application under section 540, Cr.P.C. Which is at Exh-8 for summoning P.W., Excise Dafadar Ghulam Hussain and after hearing both the parties on 18-3-2009, application was allowed and P.W. Ghulam Hussain was examined as P.W.3 at Exh.9. Prosecution closed its side vide statement Exh.10 and on the second time, statement of appellant/accused was recorded under section 342, Cr.P.C. At Exh.11. After concluding the trial, learned trial Court convicted the appellant as stated above.
8. ' We have heard Mr. Asif Ali Abdul Razak Soomro, learned counsel for the appellant and Mr. Ali Raza Pathan, learned State Counsel.
9. ' Learned counsel for the appellant contended that the appellant was cleaner of the vehicle and he was not in knowledge of recovered property and during his personal search nothing was recovered from his possession. He further contended that, it was driver who was in exclusive knowledge about the recovered property, who had committed suicide during investigation. He further argued that the prosecution has not produced material document to prove that said Akbar Khan had committed suicide. No report under section 174, Cr.P.C. Was produced. According to the learned counsel post-mortem report was also not produced in Court during trial to establish that said driver actually had committed suicide during investigation. He further contended that there are so many contradictions in the evidence of Excise officials. He further contended that Inspector Anwar Ali Seehar has not been examined who had written Mashirnama and 161, Cr.P.C. Statements. He further contended that witness Abdul Latif stated that above Truck was coming from Kashmore side, whereas other witnesses have stated that truck was coming from Kandhkot towards Kashmore. He further contended that witness Abdul Latif stated that Excise Constable Bashir drove the truck from place of wardat to PS while accused were taken to Excise PS in Police Mobile. He further argued that witness Abdul Latif stated that he himself had written F.I.R. Learned counsel further argued that P.W. Ali Goher stated in his examination-in-chief that complainant AETO Abdul Latif Pitafi, I.O. He himself and co-mashir Excise driver Ghulam Hussain boarded in the truck. He further contended that P.W. Ali Goher stated in his examination-in-chief that such Mashirnama of recovery and arrest was prepared in his presence and in presence of Excise driver Ghulam Hussain.
10. Learned counsel further contended that the witness No,2 stated in his examination-in-chief that he is matriculate and it is fact that it is mentioned in the Mashirnama that one truck was coming from Kandhkot towards Kashmore. He further contended that P.W. Ali Goher in his cross-examination stated that the F.I.R. Was written by Inspector Anwar Ali Seehar and his statement was also recorded by Inspector Anwar Ali Seehar on the dictation of AETO Abdul Latif Pitafi. He further contended that P.W.3 Ghulam Hussain stated in his examination-in-chief that AETO prepared Mashirnama at the spot. He further contended that this witness stated that it is correct that Mashirnama was read over to him. It is correct that it is mentioned in the Mashirnama that truck was coming from Kashmore. In the above circumstances, learned counsel for the appellant contended that looking to the material contradictions in the prosecution case, and it is settled principle of law that if a single doubt is created then benefit of such doubt is to be extended in favour of the appellant. Lastly learned counsel for the appellant has relied upon the cases of Niaz- ud-Din v. The State 2007 SCMR 206; Amanat Ali and 2 others v. The State 2008 SCMR 991; Qaisarullah and others v. The State 2009 SCMR 579; Ali Hassan v. The State PLD 2001 Karachi 369; Nazar Hussain and another v. The State 2007 YLR 1601 and the case of Bilal v. The State 2007 YLR 3096.
11. ' Mr. Ali Raza Pathan learned State Counsel strongly supported the impugned judgment and he contended that prosecution has succeeded in establishing the guilt of accused/appellant. He further contended that huge quantity of narcotics was recovered from the vehicle in which the appellant was seated with the driver as cleaner. He further contended that cleaner would be in knowledge about Charas which was recovered from the vehicle, for which he and co-accused Akbar are liable for the said punishment. He further contended that the Excise officials have no enmity to implicate stranger persons in a heinous offence for which sentence is capital punishment. He further argued that the appellant is not known to the Excise officials who is resident of Sawat Mengora. He further argued that the prosecution has succeeded to establish guilt of the appellant beyond any shadow of doubt. He has relied upon the case of Gul Alam v. The State Through Advocate-General N. -W. F. P. Peshawar NLR 2010 Criminal 59. He further contended that the learned trial Court has already taken a lenient view and awarded lesser punishment whereas the appellant accused would have been punished for capital punishment by the trial Court.
12. ' We have considered submissions advanced at the Bar by the learned counsel for the respective parties and with their assistance we have scanned the entire evidence but we have not persuaded with the arguments advanced by the learned counsel for the appellant. In the case of Niazuddin (supra), honourable Supreme Court had reduced the sentence from ten years. In the case of Amanat Ali and two others (supra) the circumstances of the case are mostly distinguishable from the facts and circumstances of the case in hand. In the case of Qaisarullah (supra) only ten grams of Charas was dispatched for chemical analyzer and sentence of appellant was reduced as already undergone by him and co-accused Abdul Wali was acquitted. In the case of Ali Hassan (supra), circumstances of the case are distinguishable from the facts and circumstances of this case and no material contradiction has been pointed out to discard the prosecution evidence. The cases of Bilal and Nazar Hussain are also not on the same circumstances. Following the dictum laid down by honourable Supreme Court in the case of Gul Alam and the case of Niazuddin relied upon by the learned counsel for the appellant, we do not see any material contradictions and discrepancies in the prosecution evidence which could persuade us to extend benefit of doubt towards appellant. On the contrary prosecution has succeeded in establishing the guilt against the appellant beyond any shadow of doubt. Under these circumstances, we do not find any illegality in the impugned judgment passed by the learned trial Court which is also well-reasoning judgment.
13. The impugned judgment is therefore, unexceptional and conviction and sentence does not call for any interference. Therefore, appeal is dismissed.
14. ' However, coming to the question of sentence, we note that the appellant is first offender and the prosecution has not brought any document or any evidence to show that the appellant was previously involved in drug-trafficking and we also consider the fact that during personal search of the appellant nothing was recovered from his possession. In these circumstances, appellant needs to be given chance in his life to rehabilitate himself. From the statement recorded under section 342, Cr.P.C. The appellant seems to be Youngman. Accordingly, while dismissing appeal we are persuaded to reduce sentence from life imprisonment to ten years imprisonment. Benefit of section 382-B, Cr.P.C. Already extended to appellant by the trial Court shall remain intact.