' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Zulfiqar Hussain son of Faqir Hussain, caste Arain, resident of Chak No.23-A/GD District Okara, appellant was involved in case F.I.R. No.202 of 2002, dated 4-6- 2002, offence under section 9(c)/25 of the Control of Narcotics Substances Act, 1997 registered at Police Station B-Division, Okara and was tried by learned Additional Sessions Judge, Okara, who vide judgment dated 20-3-2004, convicted the appellant under section 9(c)/25 of the Act and sentenced him to death.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant impugned the same through filing Criminal Appeal No.403 of 2004, whereas the learned trial court forwarded Capital Sentence Reference NO.84-N of 2007 for confirmation of the death sentence inflicted upon the appellant; in terms of section 374, Cr . P. C .
3. As both the matters are arising out of the same F.I.R., therefore, we intend to dispose of the same through this single judgment.
4. The prosecution story as alleged in the F . I. R. (Exh.PA/1) recorded on the written complaint (E.Kh.PA) of Liaquat Ali, A.S.-I. (P.W.5) is that he along with Muhammad Akram 286/C, Sabir Hussain 263/C, Munir Ahmad and Munawar Hussain, PQRs, were present at Bus Stop Chungi No.7 G.T. Road, Okara, in connection with patrol duty and checking of crime. A person later on whose name was disclosed as Zulfiqar son of Faqir Hussain, caste Arain, resident of Chak No.23-A/GD was found standing holding a plastic shopper, who, on seeing the police personnel tried to slip away. He was captured red-handed by the police party and on his personal search, 5 packets of charas wrapped in a polythyne shopper separately sealed with Polacholor/Polaroid were found in his possession, each packet was containing one kilogram and total 5-KGs charas. The complainant separated 10/10 grams charas from each packet as sample for sending the same to the office of Chemical Examiner for analysis and sealed all samples along with recovered charas with the stamp namely OK and took into possession vide recovery memo Exh.PB. The accused was interrogated, who disclosed that he had purchased the charas from Chak No.5/4-L. The complainant prepared complaint (Exh.PA), which was sent to the police station through Munir Ahmad Razakar for registration of formal F. I . R. (Exh. PA/1).
4. On the basis of complaint (Exh.PA) formal F.I.R. (Exh.PA/1) was registered in the Police Station Liaquat Ali, A.S.-I. (P.W.5), prepared rough site plan of the place of occurrence (Exh.PC). Samples made into sealed parcels containing charas were sent to the office of Chemical Examiner, Lahore for its analysis under the supervision of Investigating Officer. The Investigating Officer also recorded the statements of the prosecution witnesses under section 161, Cr.P.C. Having found the accused guilty, the Investigating Officer prepared report under section 173, Cr.P.C, while placing his name in column. No.3' of the challan and sent the same to the court of competent jurisdiction.
5. The appellant was charge sheeted by the learned trial court on 2041-2002 under section 9(c)/25 of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial.
Prosecution in order to prove its version produced as many as five witnesses. The investigation of this case was conducted by Liaquat Ali, A.S.-I. (P.W.5), who is also complainant of this case.
Muhammad Akram 286/C is the other prosecution witness of the recovery. Statements of rest of the prosecution witnesses, however, are formal in nature.
6. On 8-1-2004, the learned DDPP gave up Abdul Majeed, S.-I. Being unnecessary. On 21-1-2004, besides giving up Sabir Hussain 263/C, P.W. Being unnecessary, the learned DDPP tendered in evidence the report of Chemical Examiner, Lahore (Exh.Pb) and closed the prosecution evidence.
7, Appellant was also examined under section 342, Cr.P.C; wherein he opted to lead defence evidence, however, he opted not to appear as his own witness as provided under section 340(2), Cr.P.C. In disproof of allegations levelled against him. To a question why this case against him and why the P. Ws. Deposed against bim, appellant made the following deposition:- "In fact prior to registration of this case near about 45-Kg charas was recovered from a Car No.1368/ R.I.P and the real culprits ran away from the spot. Later on it came to the knowledge of the police that the said charas was belonging to Zafar Qanun, Afzal Driver, Naeem (owner of the car) and Muhammad Khan Pathan belongs to Peshawar. The said charas was also brought from Peshawar by .The above mentioned persons. The above persons having visiting terms with the I.O.
Liaquat Ali A.S.-I. Who is notorious police officer who has friendly relation with narcotic dealers. The I.O. Took into possession car and 45 Kg charas and when he knew about it the said charas and car belong to - their friends he delivered the said narcotic and car to the above mentioned Zafar Qanun etc.. But later on it came into the knowledge superior police officers then I.O. Arrested innocent persons and involved them in different cases of narcotic and some quantity of narcotic was planted against the innocent persons and the said car was also taken by the I.O. Into his possession under section 550, Cr.P.C. And later on the said car was handed over to the above mentioned persons without any order of any court and the, recovery memo which was prepared at the time of taking possession of said car was also not attached with the judicial file. No document of superdari was also attached with the judicial file from the above recovered charas 5 k.g. Was planted against me and 15 k.g. Charas was planted upon Ejaz alias Bathal and remaining charas was planted against other innocent persons only to save the skin of the above mentioned persons who brought the charas from Peshawar. My maternal uncle was died and his widow is alive after the death of my uncle. Zafar Qanun started to visit the house of my late uncle. I and other relative tried to forbid him due to this reason Zafar Qanun annoyed with me and my family. Due to this grudge and to save his skin the said Zafar Qanun with connivance of the I.O. Involved me in this false case. All the P. Ws are subordinate to the I.O. And they deposed falsely at' the instance of I.O.
And I.O. Involved me in this false case to save the skin of real culprits and also to show his efficiency got registered this false case and then deposed falsely due to above mentioned reasons."
8. Liaquat Ali son of Farman Ali appeared as DW-1, who deposed that he is Headman of village.
When the raid at the house of appellant was conducted, he also reached at the house of appellant and in his presence the Investigating Officer trade personal search of the appellant as well as his house but nothing incriminating was recovered. Further deposed that neither appellant nor his parents and other family members deal in narcotic substance. Faqir Hussain, DW-2 also reiterated stance as stated by the DW-1. On 4-3-2004, the appellant tendered copy of judicial remand and order of learned Illaqa Magistrate dated 17-8-2002 (Exh.DB) and attested copy of judgment of case titled 'State v. Ejaz' (Exh.DC) in defence and vide the same statement closed his defence evidence.
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, which resulted into his conviction in the above stated terms.
10. At the very outset, learned counsel for the appellant argued that he does not object conviction of the appellant, however, prayed for reduction in sentence as only 5-Kg charas was recovered from him,
11. On the other, learned Deputy Prosecutor-General has opposed the contention raised on behalf of the appellant and stated that the learned trial court has rightly convicted the appellant.
12. We have heard the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor-General and perused the record.
13. As the learned counsel for the appellant has not opted to assail his conviction and, so, we do not feel the necessity to discuss in detail the prosecution evidence on the record. However, we find that he was rightly convicted on the basis of the evidence of recovery of the charas from him. The report of the Chemical Examiner also supports the prosecution case. We, thus, see no infirmity in the impugned judgment to the extent if his conviction and find no ground or justification to warrant interference in the same. We, thus, are inclined to maintain the same.
14. However, as regards the question of his sentence, we have carefully gone through the prosecution case viz. Complaint (Exh.PA/1) on the basis of which formal F.I.R. Was registered, statements of the prosecution witnesses recorded under section 161, Cr.P.C., as well as recorded during the course of trial, the statement of the appellant recorded under section 342, Cr.P.C. And also the reasons advanced by the learned trial court while convicting the appellant. It is nowhere mentioned in the prosecution evidence that 45-Kg charas was recovered from the appellant. The learned trial court has assumed that 45-Kg charas was recovered from the appellant mainly basing his statement recorded under section 342, Cr.P.C. Though the court can also take into consideration the statement of the accused if the same is confidence inspiring and finds corroboration from other independent source, however, in the instant case the appellant has also led defence evidence in this behalf. It would squarely be against the dictates of criminal justice that some part of the statement of the accused is taken as true and the remaining otherwise because it is settled principle of law that statement of accused either be discarded as a whole or be accepted in toto. In such circumstances of the case, we have been persuaded to hold that the learned trial court erred in law while giving finding that actually 45-Kgs charas was recovered from the appellant. Hence, in view of the relatively lesser quantity of the narcotic substance recovered from the appellant i.e. 5-KG, we are inclined to reduce his sentence. We have also carefully gone through the record and fail to find any saza slip (conviction slip) annexed with the file, meaning thereby that the appellant has not been convicted earlier by any court of law.
15. For the foregoing reasons, Criminal Appeal No.403 of 2004 filed by appellant is dismissed while modifying the sentence of death into imprisonment for seven years. Benefit of section 382-B, Cr.P.C.
Is extended to the appellant. The burden of fine as ordained by the learned trial court, however, shall remain intact. Capital Sentence Reference No.84-N-2007 fails, which is answered in NEGATIVE.
Death sentence inflected upon Zulfiqar Hussain appellant is NOT CONFIRMED.
16. Before parting with this judgment we may also observe here that the learned trial court in its judgment erroneously recorded words 'Hon'ble Federal Shariat Court, Islamabad' instead of 'Lahore High Court, Lahore'. Perhaps it might be typographical mistake, however, office shall inform the learned trial court in this regard, for future guidance.
Sentence reduced.