Muhammad Hashim Khan Kakar, J.--Appellant Rehmatullah, through instant appeal, has challenged the validity of judgment dated 21st May 2008, passed by the Special Judge, under the Control of Narcotic Substances Act, 1997, Sibi at Mach, whereby he was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer life imprisonment and to pay fine of Rs, 300,000/- (rupees three lacs only), in default whereof to further undergo SI for six months, with the benefit of Section 382-B of the, Cr.P.C.
2. The case, in brief, is that Nawaz Ali, SI/SHO, registered a case crime No, 04 of 2010, under Section 9(c) of the Control of Narcotic Substances Act, 1997 dated 7 March 2010 at Police Station, Kolpur. alleging therein that on above date, he, along with other police officials, was on patrolling of the area and during course whereof, when reached police Naka, Kolpur, found the police officials on their duty, who were checking the vehicles. In the meanwhile, at about 9:30 p.m. .a single Hino truck bearing Registration No, LSA-2111, coming from Quetta side was stopped. The driver disclosed his name as Rehmatullah, whereas the person, who was sitting with him on front seat as Muhammad Hussain. During search of the said truck, the police officials recovered 205 packets of baked charas wrapped in polythene bags from the secret cavities, weighing 01 kilogram each packet, out of which, one packet, weighing one kilogram baked charas, was sealed in a parcel for analysis, while the remaining charas was sealed in another parcel. The persons were arrested and the truck was taken into custody, consequently, the aforesaid case was registered against them.
3. After registration of the FIR, investigation of the case was entrusted to PW-3 Dawood Khan, Levies Naib Risaldar, who visited the site, took into possession the recovered substance and truck from SHO Nawaz Ali. The accused along with truck was brought to Police Station and after completion of the investigation; the accused was remanded to judicial custody. The SHO sent the samples of charas to FSL, Quetta, prepared incomplete challan Ex.P/1-B and, on receiving report Ex.P/3-B from FSL, prepared supplementary challan Ex.P/1-C. It may be noted that accused Muhammad Hussain was discharged under Section 169 of the, Cr.P.C., whereas appellant Rehmatullah was sent up to face the trial.
4. On the stated allegation, charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. At the trial, prosecution examined four witnesses. PW-1 Nawaz Ali, SI, is complainant of the case, who exhibited his murasila Ex.P/1-A, incomplete challan Ex.P/1-B and supplemertary challan Ex.P/1-C PW-2 Nisar Ali, HC, is recovery witness of the recovered substance and produced recovery memos. Ex.P/2-A and Ex.P/2-B. PW-3 Dawood Khan, Naib Risaldar Levies, is the investigation officer of the case, who exhibited memo. of personal search Ex.P/3-A and FSL report Ex.P/3-B. PW-4 Allah Noor, levies Sepoy, resiled from his statement and was declared hostile.
5. The appellant was examined under Section 342 of the, Cr.P.C. wherein he denied the prosecution allegation and took the plea of false implication; however, he has not recorded his statement on oath under Section 340(2) of the, Cr.P.C., nor produced any witness in defence. The trial Court, after close of parties' evidence, vide impugned judgment convicted and sentenced the appellant, as mentioned hereinabove, hence this appeal.
6. We have heard the learned counsel for the parties and have gone through the record minutely, which is indicative of the fact that two accused were arrested from the spot, while traveling in a Hino truck, from which 205 kilograms baked charas were recovered. The recovery was witnessed by PW-1 Nawaz Ali and PW-2 Nisar Ahmed. Though they are police officials, but Section 25 of the Control of Narcotic Substances Act, 1997, excludes the provisions of Section 103 of the, Cr.P.C. from searches and the police officials become competent witnesses to the search and the recovery. The sample sent to the laboratory was found to be of charas after chemical examination. The prosecution has, therefore, proved its case against the appellant beyond reasonable doubt.
7. According to the case of prosecution, out of 205 packets; each packet containing 01 kilogram of charas and, admittedly, only one packet was sent to chemical expert for analysis. The preponderance of the case laws, produced by learned counsel for the appellant, are to the effect that where the sample from only one of the many packets recovered is sent to the laboratory and the result is positive the accused can be found guilty only as regards that packet. The culpability of the appellant can, therefore, only be regarding one packet, from which the samples were taken.
Since each packet, according to the prosecution case, weighed 01 kilogram, this would being the case against the appellant under Section 9(b) of the Control of Narcotic Substances Act, 1997, which provides seven years imprisonment and fine if the narcotic drug does not exceed 01 kilogram.
8. For the aforesaid reasons, appeal is partly allowed. The conviction and sentence of the appellant recorded under Section 9(c) of the Control of Narcotic Substances Act, 1997 is altered to that of under Section 9(b) of the Control of Narcotic Substances Act, 1997. Resultantly, the sentence of imprisonment for life and fine of Rs, 300,000/- awarded to the appellant by the trial Court is reduced to that of seven (07) years imprisonment and fine of Rs, 100,000/- (rupees one lac only).
He would also be entitled to the benefit of Section 382-B of the, Cr.P.C. as already held by the trial Court.
Before parting with the judgement in hand, we have painfully observed that the complainant of the case, viz, Nawaz Ali, SIP, the then SHO Police Station, Kolpur, for extraneous reasons has completely conducted dishonest investigation and damaged the case of the prosecution in order to save the skin of the culprits from clutches of law. He not only sent one packet out of 205 packets of baked charas for chemical analysis, but also intentionally entrusted the investigation of the case to an illiterate and untrained official. He, on the face of record, not only substituted the truck, wherefrom the narcotic was recovered, but also discharged one of the culprits, namely, Muhammad Hussain under Section 169 of the, Cr.P.C. without the consent and knowledge of the Investigating Officer in clear violation of law as also observed by the trial Court and such unwarranted acts on his part smack clear mala fides. Copy of this judgment be sent to the concerned Regional Police Officer and District Police Officer for initiating disciplinary proceedings against the incumbent official with intimation to the Registrar of this Court.