' SALAHUDDIN PANHWAR, J.---By this criminal appeal, the appellant has assailed the Judgment dated 3-6-2011 passed by the. Special Judge (CNS), Khairpur in Special Case No.7 of 2010 (Re. The State v. Ashiq Ali) arising out of Crime No.1 of 2010 of Excise Police Town, Khairpur, registered for offence under section 9-C Control of Narcotic Substances Act, 1997 whereby convicting the appellant under section 9(c) CNS Act, 1997 and sentenced him to suffer R.I for ten years and to pay a fine of Rs.50,000 and in case of default in payment of fine, the appellant shall further undergo S.I for four months. The benefit of section 382-B, Cr.P.0 was also extended in favour of the appellant.
2. The relevant facts leading to this appeal are that on 11-2-2010 Excise Inspector Muhammad Ali Soomro lodged F.I.R. Alleging therein that on the day of report he and Excise Inspector Liaquat Ali Dogar along with their subordinate staff namely EC Shahnawaz Chandio, EC Muhammad Rashid Soomro, ED Mushtaque Hussain Wassan, EC Riaz Hussain Shaikh, EC Mukhtiar Ahmed Bhutto on spy information proceeded towards the place of wardat near Patrol Pump of Javed Shah situated at main road Khairpur, where they saw that one passenger Wagon bearing Registration No.JF-3867 was coming from Sukkur and going to Kot Bunglo, they got stopped the said Wagon. According to spy information four persons were sitting on Seat No.3, they alighted one of them, they asked passengers, cleaner and wagon driver to act as mashir, but they refused, hence EC Shahnawaz Chandio and EC Muhammad Rashid Soomro were associated as mashirs and then introduced the said person from Excise laws. On enquiry the said person disclosed his name as Ashiq Ali son of Mohammad Sultan by caste Jatoi resident of village Noor Muhammad Khan Jatoi, District Khairpur. During his personal search one white colour plastic shopper containing three slabs of charas were found wrapped/tied with his abdomen. The recovered charas was weighed at the spot, which became three kilograms, out of which 300 grams charas was separated and sealed separately in a black colour shopper as sample for chemical examination, while remaining charas was also sealed separately in white colour shoppei bag, such mashirnama of arrest and recovery was prepared at the spot in presence of above said mashirs, then accused and case property were brought at Excise Police Station Khairpur, where complainant registered the F.I.R. Against the accused on behalf of the State.
After completion of investigation police submitted the challan before the Court of law.
3. A charge was framed against the appellant/accused, he pleaded not guilty and claimed his trial.
During the trial prosecution examined P. W.1 mashir EC Shahnawaz at Exh.4, who produced mashirnama of arrest and recovery at Exh.4/A, P.W.2 complainant Excise Inspector Muhammad Ali Soomro at Exh.5, who produced departure and arrival entries at Exh.5/A, F.I.R. At Exh.5/B, chemical report at Exh.5/C, thereafter the side of prosecution was closed vide Exh.6.
4. It further reveals that the statement of appellant was recorded under section 342, Cr.P.C., wherein he has denied the allegations of the prosecution and claimed his innocence. However, neither he examined himself on oath nor examined any defence witness.
5. The learned counsel for the appellant has inter alia contended that the impugned Judgment is not maintainable under the law as the material contradiction in evidence of witnesses is not appreciated while convicting the appellant, the appellant was arrested from a Wagon but none from the passengers or driver or clear of Wagon was made witness in the instant case; the punishment awarded to the appellant is harsh and also against the authoritative proposition of law the place of incident is a populated area in spite of that the police has not made any efforts to join an independent person to act as witness or mashir. He has relied upon the case of Abdul Jana v. The State (2010 YLR 2283), Rajab Ali v. The State (2011 YLR 563), Nazeer Ahmed v. The State (PLD 2009 Kar.191), Taj Wali and 6 others v. State (PLD 2005 Kar. 128), Ghulam Murtaza and another v.
State (PLD 2009 Lahore 362). Muhammad Saeed alias Rashid alias Sheda and another v. The State (2011 PCr.LJ 454) and Ayoob Masih v. The State (NLR 2003 Criminal 1).
6. Conversely, the learned A.P.-G. Ppearing for the State has argued that during the cross- examination no material contradiction is surfaced; 3 Kgs Charas was recovered from the appellant, out of three slabs,. The representative portion was taken for chemical examination and such report confirmed the fact; police officials are good witnesses, moreover no suggestion has been put during the cross-examination regarding any animosity with the police officials, therefore conviction, awarded by the learned trial Court is legal and in accordance with the law.
7. Heard the learned counsel for the parties and perused the material available on record. We have also examined the case law relied upon by the learned counsel for the appellant. In the case of Abdul Jana (supra), it is held that:-- "mashir and all prosecution witnesses had made improvements in their statements recorded by the Court as against the F.I.R. And those recorded under section 161, Cr. P. C. On material aspect of the case. Such improvements and contradictions could not be taken Tightly and evidence of said mashirs and witnesses would require strong and independent corroboration."
' In the case of Nazeer Ahmed (supra), it is held that:-- "officer who is himself complainant in the case cannot be expected to collect and procure evidence which goes against his case. Such Investigating Officer cannot properly perform duties of an independent and fair Investigating Officer."
' In case of Rajab Ali (supra), it is held that:-- "Investigating Officer never produced in the Court the Charas that was not used in analysis and was returned to him by the Chemical Examiner and non-production of unconsumed samples before the trial Court for which no plausible, explanation has been given either in the judgment impugned or by the Investigating Officer. We are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt."
' In case of Abdul Jana (supra) it is held that:-- "non-association of public witness with the recovery in spite of prior information is fatal to the prosecution case."
8. We have carefully considered the authoritative proposition of the law in the above cases. Now, we revert the same to this case to examine whether this case falls in same categories or is different one.
9. To substantiate the prosecution case, the prosecution has examined two witnesses Shahnawaz and Muhammad Ali. Both have deposed in same line that on spy information they stopped a white colour Wagon and arrested a suspected person, found 3 Kgs Charas from his possession, which was tied with is abdomen. 300 Grams from all of the rods were separated and sent for chemical examination. Another P.W. Muhammad Ali who has also given the same version.
10. It is pertinent to mention here that during the cross-examination, defence counsel failed to bring on record any defect regarding the recovery of Charas; separation of samples for chemical examination, and any variation in weight of samples sent to the Chemical Examiner.
11. We have also noticed that samples were sent within time for chemical examination and Chemical Examiner's report is positive. It is also worth to mention here that there is nothing on record about any suggestion regarding an enmity of prosecution witnesses with the appellant.
12. As discussed above, it is manifest that prosecution has succeeded to prove the onus by trustworthy evidence and the case law in the case of Taj Wali (supra) is not applicable to this case as in the instant case there is no improvement in the evidence of prosecution witnesses. The case of Rajab Ali is also not applicable to this case as in the case of Ameer Zeb v. The State (PLD 2012 SC 380), it is held that representative of property examined by the Chemical Examiner if found positive then it will be sufficiently held that whole property is same. The case of Abdul Jana (supra) relied upon by the learned counsel for the appellant is also not helpful to the case of appellant as on the point of non-association of public witness there are different views in various cases and in criminal cases every case is to be decided on its own merits and also there is no cavil that in present circumstances of the country ordinary persons are not willing to become witness. The case of Nazeer Ahmed (supra) is also not applicable to this case as nothing has been brought on record by the defence against the Investigating Officer of the present case regarding any animosity or ulterior motives of false implication and it is also a settled proposition of law that the police officials are the competent witnesses like any other independent witness and their testimony cannot be discarded merely on B the ground that they are the police personnel, as laid down in the case of Nazeer Ahmed v. The State (2004 SCMR 1361).
13. Regarding to the quantum of the sentence learned counsel has contended that harsh punishment has been awarded to the appellant. On these assertions we are in C agreement with the learned counsel as the appellant was convicted for ten years in case of 3 Kgs Charas recovered from him. The same is against the authoritative proposition of law settled by Full Bench of Lahore High Court in case of Ghulam Murtaza and another (supra). According to said judgment a complete chart has been given which provides punishment exceeding 2 Kgs upto 3 Kgs, the punishment will be R.I. 5 years and six months and fine of Rs.25,000 or in default to suffer S.I. For five months and fifteen days. Therefore, we are of the view that the prosecution has proved its case beyond any shadow of reasonable doubt against the appellant but on the quantum of sentence we are of the considered view that the impugned judgment is harsh and conviction is not according to law thereby we maintain the impugned judgment with modification in the sentence and reduce the sentence from ten years to five years and fine from Rs.50,000 to Rs.25,000, with benefit of section 382-B, Cr.P.C. In case of default in payment of fine, appellant will serve five months and fifteen days more.
14. With the above modification in the sentence, the appeal is dismissed.