1. ' MEHTA KAILASH NATH KOHLI, J.---This appeal is directed against judgment dated 13th June, 2008, passed by learned Special Judge (C.N.S.) Dera Allah Yar in C.N.S. Case No,10/2007, whereby, appellant Muhammad Naeeem son of Muhammad Haneef has been convicted under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter called as the C.N.S. Act, 1997) and sentenced to suffer imprisonment for life, and to pay fine of Rs,10,000 in default thereof; to further undergo six months simple imprisonment. Benefit of section 382-B, Cr.P.C. Has been extended in favour of appellant-convict.
2. ' Facts of the case, in brief, are that a case vide F.I.R. No,1/CH/07 under section 9(c) of' CNS Act, 1997 was registered by Excise Police Station, Drea Allah Yar on 16th November, 2007, on the report of Qurban Ali Khan Assistant Excise and Taxation Officer, Dera Allah Yar, wherein; it was alleged that on the eventful day' Excise and Taxation Officer Jaffarabad had received spy information that narcotics was being smuggled from Quetta to interior Sindh in, a Car bearing No, ANG-226- Karachi, on receipt of Said information, a raiding party was constituted and under the supervision of complainant a picket was installed near Sattar Petrol pump on QuettaDera Allah Yar Road, in the meantime; at about 2-00 a.m. The alleged car coming from Quetta side was stopped at the picket, which was being driven by accused Muhammad Naeem. On checking the car, 35 packets of Charas wrapped in plastic were recovered from the secret cavities made on the back of rear seat of the car, on weightment of the same it was found to be 35 kilograms baked Charas, thereafter two parcel of alleged recovered Charas were prepared. It was stated that 2 grams sample' from each packet of Charas were separated for the purpose of chemical analysis weighing 70 grams were sealed in parcel No,1, while remaining 34 kilo and 930 grams Charas was sealed in plastic bag, and accused was accordingly arrested, as well as, Car bearing No,ANG-226 Karachi was seized as case property. The alleged articles were taken into possession vide recovery memos, which were prepared on the spot, and excise Inspector Saifullah Khan Sial was appointed as Investigation Officer. After completion of investigation challan was filed in the Court of competent jurisdiction. Learned Special Judge (C.N.S.) Dera Allah Yar took cognizance in the matter. Charge was framed, which was denied by the appellant-accused.
3. ' To substantiate accusation prosecution produced following evidence:-- ' P.W.-1 Qurban Ali, Assistant Excise and Taxation Officer is the complainant, who had reiterated the contents of the F.I.R. And produced the same as Exh.P/1-A bearing his signature. He has further stated that after completion of investigation incomplete challan (Exh.P/1-B) was filed in the Court and on receipt of FSL report, complete challan (Exh.P/1-C) was filed. It has been stated that on account of death incident of Shaheed Benazir Bhutto, their Police Station was burnt, and the case property i.e, 34 kilo 930 grams Charas was also destroyed, in this regard witness produced F.I.R.
4. No,298/2007 (Exh.P/1-D). Witness produced the car as Article P/1, and identified the accused to be the same.
5. ' In cross-examination, he stated that they had received information from Excise & Taxation Officer, one day prior to the incident and thereafter he had constituted the raiding party. It was admitted that the place of recovery was national highway, where the traffic continuously running, however; he had not associated any private witness to the alleged recovery. It was admitted that the vehicle (Article-P/1) did not have separate cavity. It was stated that according to the documents of vehicle it was obtained on lease from Bank. It was denied that nothing material was recovered from the possession of accused. It was further denied that Charas was not recovered from the vehicle. It was admitted that the recovery Charas i.e, case property was not produced in the Court; voluntarily stated that the same was burnt.
6. ' P.W.2 Hameedullah, Hawaldar Excise Police Station Dera Allah Yar is the recovery witness, who has stated that E.T.O. Had received information that narcotics was being smuggled from Quetta to interior Sindh in a Car bearing No, ANG 226-Karachi. On receipt of said information, a raiding party under the supervision of Assistant E.T.O. Namely Qurban Ali was constituted comprising of Saifullah, Khadim Hussain, Sher Ali and Arz Muhammad installed a picket at Sattar Petrol Pump, in the meantime at 2-00 a.m, alleged vehicle came from Quetta side being driven by accused-appellant.
7. It has been stated that on the direction of Assistant E.T.O., witness in presence of Khadim Hussain checked the vehicle, in result whereof 35 packets of Charas from secret cavities prepared behind the back seat wrapped in plastic were recovered, which were taken into possession by Assistant E.T.O. Vide recovery, memo (Exh.P/2-A). It was stated that samples of two grams Charas from each packet were drawn and were sealed in parcel No,1, while remaining 34 kilo and 930 grams Charas were sealed in parcel No,2, and the vehicle (Article-P/1) was seized vide seizure memo (Exh.P/2-B).
8. He has stated that the case property i.e, seized Charas was burnt in the police station. He had identified the accused to be the same.
9. ' In cross-examination, he stated that at 1-00 a.m. In the night they reached Sattar Petrol Pump. It was denied that there were no secret cavities prepared in the vehicle. It was admitted that separate cavity was not prepared, while on the backside of the seat there was one cavity, wherein Charas was concealed. It was admitted that all the witnesses belonged to Excise Department. It was admitted that no private person was called as recovery witness. Witness stated that he had signed three recovered memos. It was denied that accused had no concern with the seized vehicle, nor he had any concern with the alleged recovered Charas. It was denied that the proceedings were not conducted on the spot.
10. ' P.W.3 Saifullah Excise Inspector/ Investigating Officer appeared in witness box and deposed that after registration of F.I.R, investigation of the case was entrusted to him. He had taken into possession the custody of case property and accused. He had recorded statements of witnesses under section 161, Cr.P.C, and after completion of investigation on 19th November, 2007, he had remanded the accused to judicial custody, and on 22nd September, 2007 mursala was sent to the Car leading company, as well as parcel of Charas was sent to FSL for the purpose of Chemical analysis; on 28th September, 2007 report of FSL (Exh. P/3-A) was received, which was filed along with complete challan.
11. ' In cross-examination, witness stated that at 8-00 p.m. In the night, Assistant E.T.O. Had informed him about conducting of raid. It was stated that the vehicle was taken into possession at 2-00 a.m.
12. It was stated that there was a gap behind the back seat, while there was no specially designed cavity. It was admitted that not reply from the car leasing company was received. It was further admitted that during course of investigation he had not contacted the concerned bank with regard to the seized vehicle. It was denied that the accused had no concern with the seized vehicle and recovered Charas. He had denied that he had not conducted proper investigation in the case.
13. ' On close of prosecution evidence, statement of appellant-accused was recorded under section 342, Cr.P.C. Wherein he had pleaded his innocence, however; he did not record his statement on oath, nor produced any witness in his defence.
14. ' Learned Special Judge (CNS) Dera Allah Yar, vide judgment dated 13th June, 2008, convicted and sentenced the appellant in the aforementioned manner. Being aggrieved of his conviction and sentence, appellant-convict has filed the present appeal before this Court.
15. ' Syed Saleem Akhtar, Advocate appeared on behalf of appellant-accused, while Mr. Abdul Raheem Mengal, Assistant Advocate-General appeared on behalf of State.
16. ' Learned counsel for the appellant--accused contended that the prosecution had miserably failed to prove the case beyond reasonable doubt. It was the case of appellant that the case property was not produced before the Court, and in case, if it was burnt, benefit has to be extended to the accused and not to the prosecution. It was further stated that the F.I.R. Produced did not mention of alleged narcotics and cannot be made basis for excuse for non-production of the recovered articles. It was stated that the evidence has not been properly appreciated and at the best it could be a case of recovery to the extent of 70 grams of Charas of the alleged samples, which were sent for analysis and report was found positive.
17. ' On the other hand, learned Assistant Advocate-General has opposed the appeal on merits, while supporting the judgment of trial Court, has stated that the Charas, which was kept in the custody of Excise Department was burnt on account of incident of death of Shaheed Benazir Bhutto, however; stated that recovery memo produced is sufficient to bring the guilt at home.
18. ' We have considered the arguments advanced by learned counsel for the parties and perused the record. From the perusal of record, it is abundantly clear that some recovery was made during the night of 16th November, 2007 by the Assistant E.T.O. And thereafter a case was registered in consequence of said F.I.R; challan was submitted and charge was framed, which was denied. The onus was upon the prosecution to have proved that 35 kilograms Charas was recovered from the possession of the appellant. After the recovery of articles, it was the duty of the prosecution to have kept it either in malKhana or in safe custody. The prosecution has failed to establish as to whether the above incriminating articles were kept in safe custody. The suggestion was made that nothing material was recovered from the possession of the appellant. Unless the' incriminating article is produced before the Court and the Court is satisfied that the recovery was properly made, it was properly sealed and had kept in the proper possession, the accused cannot be held liable. It is an admitted feature of the case that the above said article was not produced. It is an established position of law that in various cases the superior Courts have held that in case, if the article is not produced, the recovery could not be termed to judiciously made and adverse inference against prosecution is drawn. The factum of possession could only be established by production of the articles, so recovered and in the absence of the articles; no definite opinion could be formed. The onus was upon the prosecution to prove the case beyond shadow of doubt which has not been discharged. The benefit of non-production of article cannot be extended to the prosecution and definitely, the same will go to the accused. However, the prosecution has been able to prove the case to the extent of 70 grams Charas, which was taken into possession and was sent for chemical analysis and FSL report A (Exh.P/3-A) was positive, and thus; recovery of Charas is proved to the extent of 70 grams. The appellant cannot be held liable for the entire alleged articles and thus, the sentence of life imprisonment is modified to that one year rigorous imprisonment and fine of Rs,5,000 in default of payment of fine to further undergo one month simple imprisonment. Benefit of section 382-B, Cr.P.C. Is extended in favour of appellant-convict.
19. ' With the above modification in the quantum of sentence, the appeal having no merit is accordingly dismissed.