1. Mrs. Syeda Tahira Safder, J.--The appellant preferred instant appeal with averments that impugned judgment dated 31.10.2008 is contrary to law and facts. There are material contradictions in statements of the witnesses, which were ignored by the trial Court. Further, despite receipt of prior information, private persons were not associated to witness the recovery proceedings. The recovered material was sent for chemical analysis with delay of one week without any explanation. As per prosecution witnesses Parcel No, 2 was sent to FSL, while as per report Parcel No, 1 was received for analysis. No document of ownership in favour of the appellant is produced by the prosecution to establish the ownership of the vehicle vested with the appellant. It is further his contention that the defence produced by him is not considered by the trial Court. He has prayed for setting aside of judgment dated 31.10.2008, thereby his acquittal of the charge. . As per record, FIR No, 5 of 2008 Police Station Bakhtiar Abad District Sibi was registered on 26.2.2008 on report of SHO Police Station Bakhtiar Abad namely Amir Jan SI. As per its contents on receiving of secret information about transportation of narcotics under supervision of SDPO Israr Ahmed they made check post at National High Way and started checking the vehicles, nearly 12:30 p.m. a white coloured car Bearing No, F-7294 proceeding from Quetta was stopped and search was made, on the same from secret cavities 35 packets of baked charas were recovered, out of which certain packets were weighed, each packet found to be of one kilo gram, total weight was 35-kilo grams. Out of the same three packets were separated, while Parcel No, 2 was prepared for purpose of analysis to FSL. While remaining charas weighing 32-kilo grains was packed in Parcel No,
1. Seizure memos were prepared. On registration of FIR Muhammad Iqbal SI was appointed as Investigation Officer, on completion of investigation case was challaned. Whereupon charge was framed on 3.4.2008 for offence punishable under Section 9(c) of Control of Narcotics Substances Act, 1997, to which he pleaded not guilty and claimed trial. Three witnesses appeared on behalf of prosecution, while in defence the appellant got recorded his own statement and produced one witness. After completion of trial, founding him guilty of the offence, thus punished by the trial Court through judgment dated 31.10.2008, while awarded him punishment to suffer rigorous imprisonment for life i,e, 25 years with fine of Rs, 2,00,000/-, in default has to suffer 06 months more.
2. The appellant being aggrieved of his conviction preferred instant appeal with averments as mentioned above.
3. The learned counsel for the appellant while arguing the matter pointed out the contradictions in the evidence. Further asserted that these contradictions are material, which were required to be considered and the doubt so appeared, benefit of the same was required to be extended in his favour, which has not been done by the trial Court. No evidence in respect of car has been collected. Learned State counsel strongly contested the contention raised by counsel for the appellant.
4. In present case recovery of suspected material charas weighing 35-kilo grams have been alleged against the appellant. The recovery is alleged to have been made from secret cavities of Car Bearing Registration No, F-7294 being driven by the appellant, when apprehended by the Police Authorities at the site. Prosecution Witness No, 1 Amir Jan is the complainant, who reported the matter after effecting recovery of narcotics substance from the car driven by the appellant. He prepared parcels of the recovered material, also prepared the seizure memos. which are present on record as Ex:P/2-A, Ex:P/2-B and Ex:P/2-C. PW-2 Ghulam Farid Constable is witness of these seizure memos. While PW-3 Muhammad Iqbal is Investigation Officer. He produced Examination Report Ex:P/3-B, issued from Forensic Science Laboratory bearing date 3.4.2008, which is positive in nature. While in defence the appellant recorded his own statement and also produced one witness DW-1 Safar Khan.
5. Apart from the plea taken by the appellant, at the first instance the prosecution has to establish the recovery of narcotics substance from his direct or conscious possession. PW-1 and PW-2 both are witnesses of the occurrence of recovery effected from the appellant. As per PW-1 in supervision of Israr Ahmed SDPO/DSP Bakhtiar Abad they set up a check post at Bakhtiar Abad Road and started checking. While PW-2 Ghulam Farid also stated same facts, except he deposed about presence of DSP Jan Muhammad at the check post. PW-1 though deposed that the charas was recovered' from secret cavities of the vehicle, but he did not disclose that where these secret cavities were, exact location is missing in written report, nor in recovery memos this fact is disclosed. But PW-2 while recording his statement during course of cross-examination disclosed that secret cavities were made in lower part ( O, f) of the trunk of car. The vehicle is taken into custody through recovery memo. Ex:P/2-C, but in the same the place of secret cavities are not disclosed.
6. From whole set of evidence and the defence plea taken by the appellant it is an admitted position that the appellant was apprehended from the vehicle from where the suspected material was recovered. As per prosecution the appellant was alone in the car while driving the same. While as per appellant he took lift from a car coming from Quetta and proceeding towards Usta Muhammad, wherein along with driver two other persons were boarded. According to him at the spot during course of checking the driver had a chat with police, while they all four were brought to Thana, where he was separated and after two days he was informed about recovery of material.
7. He further asserted that as all the said persons were Magsi and known to SHO, they were not seen thereafter and he had been involved in the case falsely. While DW-1 is only witness of the fact that he along with appellant came to Nari Bank Bridge, where a car reached, wherein three persons were boarded, to whom he make a sign to stop, get boarded the appellant therein and returned.
8. He further stated that appellant was bare handed when he boarded in the vehicle. This part of statement is of less help, as the recovery is not alleged to be made from physical possession of the appellant. But no description of the men boarded in the car is given either by the witness or by the appellant except disclosing their caste. Though he (appellant) has asserted that these men were Magsi, but he failed to disclose their names or their identity and the source from which he came to know about their cast.
9. In addition to his apprehension from the vehicle, the recovery of suspected material though denied by the appellant, but his defence is that he was falsely involved, while the real holders of the material were set free. He did not specifically deny the recovery. Now it is the prosecution, who has to establish that what suspected material was recovered and its quantity. As per Report Ex:P/1-A and FIR Ex:P/3-A 35 packets were recovered, wherein baked charas was packed, each packet weighed one kilo gram, while total weight was 35-kilograms. As per Ex:P/1-A the whole recovered material was not weighed at the spot, rather some packets were weighed and each packet was of one kilogram. PW-1 & PW-2 both stated that at spot whole recovered material was not weighed, rather some packets were weighed. The Investigation Officer, while recording his statement deposed that he did not weigh the recovered material by himself. It is clear from the statements and other material that whole of the recovered material was not weighed, rather after weighing some packets they came to the conclusion that each packet consists of one kilogram, which is not proper. The concerned Officers/officials were bound to weigh each and every packet separately.
10. In addition to the same as per PW-1 from 35 packets three packets were separated for chemical analysis and sent to FSL, while two separate parcels were prepared. PW-2 also confirmed this fact, while in Ex:P/1-A and in seizure memo. Ex:P/2-A and Ex.: P/2-B this fact is mentioned. This means that samples have not been taken from remaining 32 packets of material alleged to be baked charas. The Examination Report of FSL is also to the extent of three packets only, which were sent for examination, which is positive in nature. As far as remaining material is concerned the same has not been got analyzed by the Expert. The Report Ex:P/3-B is only to the extent of three packets weighing three kilograms. This report cannot be used to be extent of remaining material. The concerned Authorities made an error while separating the material for conducting of examination.
11. It was required to be taken from each and every packet, thereafter, it was required to be sent for chemical examination and on report thereon it shall be presumed to be in respect of whole of the material. But in instant case serious error has been made by the Police Authorities. Thus in the circumstances the report is deemed to be valid only to the extent of three packets containing the suspected material, which is declared to be Charas-Baked Cannabiniods. The trial Court has failed to consider this aspect of the case, the accused person cannot be convicted for the material which has not been got examined nor thereby proved to be charas. In view of above discussion as it has been established that the recovery of suspected material was effected from the vehicle, which was driven by the appellant, while no explanation is made by the appellant that either the material not belonged to him or he was not conscious about presence of the same in the vehicle. But as the samples were not taken from each recovered packets, rather out of 35 packets three packets were separated and sent for analysis, report though positive, but it is deemed to be only to the extent of three packets weighing three kilograms. Thus in view of the same the prosecution has established its case only to the extent of three kilograms against the appellant. Though the offence set up under Section 9(c) of Control of Narcotic Substances Act, 1997, the sentence awarded to the appellant is also under same section. But keeping in view the above mentioned facts and circumstances of the case it seems just and proper that while upholding the conviction order the sentence of life imprisonment is reduced to that of 10 years rigorous imprisonment. The remaining sentence to the extent of fine shall remain intact.
12. The appeal is dispose of in above terms.