1. ' SYED PIR ALI SHAH, J.---Appellant named above has preferred this appeal against judgment dated 5-6-2006, passed by Mr. Azam Anwar Baloch, Special Judge (Narcotics) Larkana who had convicted and sentenced the appellant for the offence punished under section 9(c) of Control of Narcotic Substances Act, 1997 to undergo for life imprisonment and to pay fine of Rs,100,000 in default of payment of fine to undergo imprisonment for one year more. However benefit of section of section 382-B, Cr.P.0 was extended to appellant.
2. ' Brief facts of the prosecution case as disclosed in the F.I.R. Are that on 31-3-2003 Inspector Abdul Hafeez Qureshi lodged F.I.R at Excise Circle, Larkana, alleging therein that he along with his subordinate staff, namely, constables Muhammad Bux, Ali Gohar, Muhammad Hayat, Pathan Lal, Javed Ali, and Liaquat Ali Baloch AETO, left their office for patrol duty and reached on LarkanaRatodero road near Commerce College, Larkana, where, after some time, they saw a green colour jeep driven by a person, which was stopped by them, the driver was deported from the vehicle and on his personal search cash of Rs,1200 was recovered; on enquiry he disclosed his name to be Muhammad Sulleman Jatoi. The police party on search of vehicle secured its registration papers in the name of Muhammad Suleman from switch-board and 30-slabs of Charas weighing one kilogram each were also recovered from two concealed shelves under front seat of the vehicle and out of recovered charas four kilograms were sealed for chemical analysis, whereas rest of the narcotic substances was put in two separate plastic sack. The accused was then arrested under mashirnama in presence of mashirs, namely, E.0 Muhammad Bux and E.C. Ali Gohar. Then the accused along with case property was brought at Excise Office Larkana, where complainant lodged F.I.R. To the above effect on behalf of the State.
3. ' Formal charge against both accused was framed at Exh.2, to which he pleaded not guilty and claimed trial, vide his plea at Exh.3.
4. ' At trial, prosecution examined complainant Inspector Abdul Hafeez as PW-1, and E.C. Muhammad Bux as Exh.8. The prosecution then closed its side vide Exh.9. Thereafter, the statement of appellant was recorded under section 342, Cr.P.C. At Ex. 10, in which he claimed false implication in this case and denied allegations levelled against him by the prosecution. He further stated that he had sold out said Suzuki Jeep bearing No, BB-5464, to one Muhammad Naseem resident of Quetta on 1-1- 2003, and such sale agreement was reduced in writing in presence of witnesses who had paid part payment to him and still amount of Rs,90,000- was against him and after full payment he has to handover registration papers of Jeep to him. After some days brother of Muhammad Naseem, namely, Noor Muhammad came to him and stated that the said Jeep has been stopped by the police at Larkana, so he should accompany him to Larkana; consequently he accompanied him to Larkana, where they meet Excise personnel and he showed them Registration books and original computerized national identity card who took the same in their possession and demanded Rs,100,000- from him, but he did not fulfil their demand, therefore he challaned him in this false case. However, neither he led any defence, nor examined himself on oath.
5. ' The trial Court framed the following point for determination in the case.
6. ' Whether on the alleged date, time and place the accused was arrested by Excise police party of P.S., Excise Town, Larkana, headed by Hafeez Ahmed Qureshi, Excise Inspector and from secret compartment of the Suzuki Jeep of the accused he secured 30 Kilograms Charas, thus the accused transport said Charas and kept it in his possession and control, as alleged by the prosecution?
7. ' After hearing the counsel for the parties and going through the material brought on record, the trial Court given its finding on the above points, as under:-- ' Point No,1 In the affirmative.
8. ' We have heard the learned counsel for the parties and have also gone through the case papers and the law relied upon by the parties.
9. ' Learned counsel for the appellant argued that the impugned judgment is a result of misreading and non-reading of evidence adduced before the trial Court. It is contended that the trial Court has wrongly assessed and evaluated evidence and that nothing was recovered from exclusive possession of the appellant. It is mentioned that the alleged Charas was recovered from concealed shelves of the jeep and the said jeep was sold out by the appellant much before the date of occurrence. His contention is that there are material contradictions and improvements in the evidence of two witnesses examined by the prosecution. That, there is clear violation of provisions of section 21 of Control of Narcotic Substances Act, 1997, as the complainant party failed to obtain search warrant from the concerned Magistrate. He next contended that the sample of Charas was sent to the Chemical Examiner after about three days.
10. ' On the other hand, learned State counsel fully supported the impugned judgment.
11. The statements of the prosecution witnesses are in clear terms that present appellant was apprehended by them and the Charas was recovered from the jeep which was being driven by him. It has come on record that 30-bundles of Charas were recovered from the jeep; each of the bundle was weighing one Kilogram. In the instant case, the prosecution has led, A impeachable evidence so far recovery of contraband Charas is concerned so also arrest of the accused on the spot. Admittedly, only four bundles weighing four kilograms were referred to the chemical analyzer for his expert opinion . As per F.I.R the sample was not taken out from each bundle. The only point arises that whether appellant accused can be saddled for the recovery of Charas to the extent of 30-kilograms or to the extent of four kilograms which were taken as sample and referred to the laboratory for examination; and the Chemical Examiner's report in respect of the said sample has been exhibited on record which is in positive. Anyhow, the prosecution evidence is concrete so far the recovery of Charas relates, but the fact remains that the prosecution case is ambiguous as sample from each bundle was not taken. In such a B situation and peculiar circumstances, appellant/accused can only be held responsible for commission of offence on account of recovery of four kilograms only. Legally speaking the appellant/accused cannot be held responsible for the rest of the recovered Charas for which no sample whatsoever was taken out and the same remained un-examined and uncertified. There are numerous authorities on the point that a person can be accused liable for punishment to the extent of recovered Charas duly certified by chemical examiner. In this context reliance can safely be placed upon case of Muhammad Chuttal v. The State reported in 2001 YLR 654, wherein it has been held that when one kilogram Charas out of 30- kilograms has been sent for chemical examination, then accused can only be dealt with keeping in view his involvement in respect of one kilogram Charas only. In another case of Imtiaz Ali v. The State reported in 2006 M LD 1961, it has been held that when 20-kilograms Charas is recovered in the shape of patties and plates and only 250 grams was sent for Chemical examination and when it was not mentioned whether the sample has been taken from each patti/plate then the punishment for entire lot cannot be provided.
12. After going through the authorities as well as keeping in view section 9 of the Control of Narcotic Substances Act, 1997, we are of the view that when the punishment is provided on the basis of quantum of recovery of narcotic then it should be main criteria for the prosecution to establish that entire recovered substances C is a narcotic etc. And for that purpose it has to take all precautions and make the case fool proof. The case against the accused is to be proved till the time of finish by establishing that the accused was involved in the matter of specific quantity of narcotic substance of which allegation has been levelled. We have noticed and it is also a matter of routine that entire recovered narcotic substances in a sealed condition remained a case property in police Malkhana for a longer period and produced in Court at the time of examination. The authenticity of that substance can be questioned at any time, until a piece for chemical examination is taken from each packet or patti or whatever may be the shape of the narcotic substance. The case property remained in possession of complainant which in most of the cases is the State through the police itself, therefore the possession of the incriminating article in the custody of complainant itself is a matter of concern, it D can also happen that our honest and God-fearing police officials may sometime change the narcotic substance with other similar substance to gain some money as in some cases we have noticed that F.I.Rs, have been lodged against the police officials by other Government agencies that the narcotic substance has been changed by the complainant of the F.I.R himself as in place of Charas oil cake or stale Charas etc. By mixing with other substance has been placed. At the moment it has become easier for the police to show alleged recovery of any quantity and sending small quantity of narcotic for chemical analysis and after producing two police officials as witnesses, in all respect get the accused punished to whatever sentence they want.
13. The upshot of above discussion is that the impugned judgment requires interference by this Court to the extent that the prosecution on the basis of evidence adduced on the record has proved its case and brought guilt of the accused for the commission of the offence on account of recovery of four kilograms contraband Charas and case against the appellant stands proved for an offence which falls under section 9(c) of C.N.S. Act, 1997; but since the appellant is a young man aged about 29/30 ,years and is a first offender, and as such keeping in view this fact while taking leniency we modify the conviction and sentence awarded to appellant to lesser punishment.
14. Accordingly the conviction and E sentence awarded to appellant for imprisonment to life and fine of Rs,100,000 is hereby reduced to that of fourteen years and fine of Rs,20,000 and in case of default in payment of fine he has to undergo simple imprisonment for two months more. We are of the considered view that the conviction and sentence awarded by the trial Court modified by this Court would be enough to serve out the purpose of justice. With such modification in conviction and sentence this appeal stands dismissed.