' IKRAMULLAH KHAN, J.---This appeal has been filed by appellants Ghulam Rasool and Muhammad Afzal respectively who had been found guilty under section 9(c) of the Control of Narcotic Substances Act, 1997( thereafter as CNSA) in the case registered vide FIR No, 728 at the instance of one Fazle Subhan Khan, Sub-Inspector police, In charge PP Shagunaqa of Police Station Shergarh, for the crime which took place on 18-10-2010 at 10.45 hours and the matter was reported on the same day at 11.30 hours with Police Station Shergarh, District Mardan. A police party was on duty at Shagoonaqa (Police barricade) made for the purpose of searching and surveillance of anti-state activities and prevention of transportation of narcotics, when at the above mentioned time, the appellant Ghulam Rasool was driving a motorcar bearing Registration No,4318-GTR, arrived the barricade which was accordingly stopped whereas the appellant Muhammad Afzal was found sitting on the front seat of the car.
2. The car was searched out where from behind the front seat of the car, 10 packets of charas pukhta were recovered, when weighed came out as 01 Kg each packet, total 10 Kilograms. 05 grams charas was taken from each packet and was separately sealed for sending it to the chemical examiner for analysis, while the rest of narcotics were sealed on the spot in another parcel, being the case property. Appellants were arrested and after conclusion of investigation, report under section 173, Cr.P.C. Was submitted to the Court for trial.
3. Copies of evidence as required under Section 265-C Cr.P.C. Were supplied to the appellants- convicts and a formal charge was framed against them which was denied, by the appellants.
Thereafter prosecution led its evidence and in order to prove its case against the appellants, produced as much as 03 witnesses. The learned Trial Court on conclusion of the trial, vide the impugned judgment dated 12-4-2011, convicted the appellants under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment with fine of Rs,100,000 each and in default of payment of fine, they were directed to further undergo simple imprisonment for six months, however benefit of section 382-B, Cr.P.C. Was extended to the appellants. Case property motorcar was confiscated to the State.
4. The learned counsel for the appellants-convicts contended that there were material contradictions in the evidence; that the prosecution has miserably failed to prove the case against the appellants but in spite of that they were convicted and sentenced which is not sustainable under the law thereby the learned Trial Court has committed illegality by convicting the appellants; that samples were taken for analysis only therefrom three packets of the allegedly recovered chars, and as such appellants could not be convicted for the allegedly recovered whole bulk of chars as mentioned in the FIR, therefore, requested that the conviction and sentence imposed thereupon the appellants may be set aside and be acquitted of the charges for which the appellants were tried.
5. On the other hand, learned Additional Advocate General appeared on behalf of the State has opposed this appeal on the ground that appellants were convicted and sentenced by a competent Court of law thereafter proper appreciation of evidence on record, which were sufficient to connect appellants with the commission of offence.
6. We have heard the arguments of both the learned counsel and have gone through the available record with their valuable assistance.
7. The record reveals that prosecution in support of its case examined Zarif Khan as P.W.1 the Investigation Officer of the case, who had prepared the site plan Exh.PB, interrogated the appellants, received back the FSL report, which was placed on record as Exh.PK and had recorded statements of all P. Ws. Under section 161, Cr.P.C. Fazal Subhan Khan SI/SHO Police Station Shergarh as P.W.2, complainant of the case, who searched out the car and recovered the contraband therefrom the car concealed behind the front passenger seat which was found to in 10 packets when weighed came out as 10 Kgs. He separated 05 grams chars from each recovered packets on the spot and sealed them in 10 separate parcels for chemical analysis, while rest of the contraband was sealed into a single parcel being case property. Hamid Gul Foot Constable as P.W.3, who was the marginal witness to the recovery memo Exh.P.W.2/2, he during the cross-examination introduced the kind of the vehicle wherefrom the narcotics were recovered, stated to be a Suzuki.
8. The record reveals that narcotics were recovered therefrom a vehicle bearing registration No, 4318, this fact was confirmed by P.W.3 in his witness statement too.
9. The number of vehicle mentioned therein the report (Murasila) was 4314-GTR, while in the FIR as pinned down by one Noor Muhammad ASI, was 4318-GTR. This P.W. When examined during course of trial had confused and was not confident in regard to the registration number of the vehicle from which the narcotics were recovered. The learned Trial Court while framing the charge has also mentioned the vehicle number as 4314-GTR which had also been mentioned by the complainant in his witness statement, too.
10. The complainant (P.W.2) and the sole marginal witness P.W.3 have contradicted each other on the factum of delivery of narcotics and handing over appellants to the Investigation Officer. P.W.2, in his cross-examination has stated that he handed over the appellants and narcotics to Moharrar of the Police Station while P.W.3 has deposed in his Court statement that both were handed over to the I.O. On the spot.
11. The police personnel who drafted the report on the directions of the complainant and the one who took the contraband to the FSL, were not produced as witnesses even their names were not mentioned in the calendar of witnesses by the prosecution, attached thereto the report submitted before the Trial Court thereunder section 173, Cr.P.C.
12. Almost all over the prosecution evidence, no any witness has disclosed the kind of the vehicle from which a huge quantity of narcotics was recovered nor the prosecution bothered to conduct investigation regarding the ownership of the vehicle, whereas both the appellants-convicts have taken a specific plea that they were arrested by the Pakistan Army on account of having no National Identity Cards, and later on were handed over to the local police of Police Station Sher Garh. Strange enough, that police have also not shown any recovery of NIC, Licence of the appellants or any registration documents pertaining to the vehicle seized.
13. Control of Narcotics Substances Act, 1997 provides stringent punishment for commission of an offence, under the Act, while the appellants have been awarded maximum punishment as provided thereunder section 9(c) CNSA.
14. The samples collected therefrom the seized narcotics were sent to FSL with unexplained delay of 10 days, however, rule 3 or 4 of Narcotic Substances Rules, 2001 are not mandatory in stricto-senso, but at least the prosecution shall have to put forward a plausible explanation, of delay caused in sending the recovered narcotics to FSL. In the present case, neither the Moharrar, who was introduced during the trial, has been examined as a witness to explain the delay occurred in sending samples to the FSL nor it was proved that in whom custody the narcotics were remained for 10 days.
15. It is by now settled principle of law, that while awarding punishment to an accused for an offence which entails capital punishment, the standard of evidence shall be above board to save accused therefrom any probability of injustice.
16. In such circumstances, we find that the sentence imposed upon the appellants is severe one, not appropriate and proportionate as samples were collected therefrom some of the packets allegedly recovered therefrom the car. Keeping in view the standard and quality of the evidence so produced, against the appellants who were awarded capital punishment for the offence they were tried, therefore, keeping in view the evidence on record and peculiar circumstances of the case, by accepting the appeal in hand partly, the conviction of appellants is upheld however, the sentence is reduced from life imprisonment to 5 years R.I. With fine of Rs,50,000 each and indefault, to further undergo simple imprisonment for 3 months. However, benefit of section 382-B, Cr.P.C. Is also extended to them.
Sentence reduced.