Syed Shahbaz Ali Rizvi, J: - Through this appeal, Muhammad Arshad and Muhammad Afzal (appellants) have assailed the judgment dated 21.10.2014 passed by the learned Addl. Sessions Judge, Faisalabad in case FIR No.729 dated 11.07.2011, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Saddar, District Faisalabad whereby, Muhammad Arshad and Muhammad Afzal (appellants) were convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and both of them were sentenced to imprisonment for life with fine of Rs.5,00,000/- & Rs.1,00,000/- respectively. They were also extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
2. Brief facts of the case, as unveiled by Muhammad Ayub, Inspector/SHO, complainant (PW-5) in his application (Exh-PA) on the basis of which formal FIR (Exh-PA/1) was registered, are that on 11.07.2011, he along with Ashiq Ali ASI (PW-3), Walayat Ali 1768/C (PW-6), Muhammad Ali 1917/C, Mazhar Hussain 2866/C, Muhammad Yasin 5437/C, Akhtar Hussain 5285/C, on official vehicle FOG- 1128 being driven by Muhammad Anwar 751/C was present in Chowk Manawana Bye-pass when he received a spy information that notorious inter-district drug dealer Muhammad Arshad (appellant) was going towards Satiana in a car bearing registration No.LWE-9697 along with driver Muhammad Afzal (appellant) to sell a huge quantity of narcotics. On this information, after briefing the police officials, he established picket. After a while, from Faisalabad side, said car No.LWE-9697 arrived which was stopped and Muhammad Afzal sitting on driving seat and Muhammad Arshad sitting on front seat, whose names came in their knowledge afterwards, were checked. From the shopper bag lying in the lap of Muhammad Arshad, from different packets, twenty packets, each weighing half kilogram, heroine, twelve packets each weighing 250 grams, total thirteen kilograms was recovered. From the same shopper bag, sale amount of Rs.3,90,000/, forty notes of the denomination of Rs.5000/-, ninety notes of the denomination of Rs.1000/- and two hundred notes of the denomination of Rs.500/-, was also recovered. During further search of the car, three more shopper bags, twenty-eight bags Charas, which on weighing was of one Kg each, total twenty- eight kilograms was recovered and two pump action .12 bore along with one bag containing 100 cartridges of .12 bore and one Kalashnikov double magazine lying near Muhammad Arshad, three magazine and 150 bullets of Kalashnikov and on unloading the magazine, 75 more bullets of Kalashnikov were recovered from the bag. During the search of Muhammad Afzal, driver, from the shopper bag lying in his lap, ten packets Charas each weighing one kilogram, total ten kilograms and one packet Opium weighing one kilogram were recovered. Muhammad Arshad (appellant) could not produce license regarding the recovered Kalashnikov, two pump actions along with bullets and cartridges, proceedings regarding illicit arms were conducted. Ten grams from each packet of Charas and Opium and one gram from each packet of Heroine was separated as sample and sealed into separate parcel for analysis. Sale amount of Rs.3,90,000/- and car No.LWE- 9697 were also taken into possession vide recovery memo Exh-PB.
3. Muhammad Ayub Sahi, Inspector/SHO (PW-5), the Investigation Officer conducting the investigation, found the appellants guilty, prepared report under Section 173 of the Code of Criminal Procedure, 1898 and submitted the same to the court of competent jurisdiction. Charge was framed against the appellants to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as six witnesses. The ocular/ recovery account, in this case, was furnished by Ashiq Ali, ASI (PW-3) and Walayat Ali 1768/C (PW-6) besides Muhammad Afzal, SI/SHO (PW-4) and Muhammad Ayub Sahi, Inspector/SHO (PW-6) who also conducted the investigation of this case. Tahir Mahmood, ASI (PW-2) was the Moharrar of the police station who drafted the formal FIR and kept the recovered narcotics in Malkhana and on his transfer, Khalid Akhtar, ASI (PW-1) took the charge as Moharrar. He handed over said narcotics to Tahir Mahmood, ASI (PW-2) for its onward transmission to the office of Chemical Examiner, Lahore.
4. After closure of prosecution evidence, statement of the appellants were recorded under Section 342 of the Code of Criminal Procedure, 1898 wherein they negated the allegations levelled against them and professed their innocence. In reply to a question that "Why this case against you and why the PWs have deposed against you?, both the appellants replied as under: - "The case is false one against me PWs 1, 2, 3, 4 and 6 were the subordinates of Muhammad Ayub Inspector SHO on the day of occurrence. So they have deposed falsely against me on the asking and being the subordinates of Muhammad Ayub Sahi PW-5 just to strengthen his false version.
Prior to registration of this false case I stood complainant vide F.I.R No.1022 dated 12-10-09 under section 324, 337F3, 337L2 PPC read with 155-C Police order 2002, P.S Sadar against Liaqat Ali A.S.I and 5 constables posted at P.S Sadar for the abduction of my brother and causing fire arm injury to him. Further my stated injured brother Fazal Qadeer was firstly confined at police station Sadar Faisalabad and on my application for the recovery of my brother learned session judge deputed Mr. Abdul Sattar Wahla Stainographer as bailiff who raided at Police station Sadar on 24-08-2009 at about 5/47 p.m entered his report bearing No.21 in the Roznamcha of Police Station Sadar but failed to recover my brother and as per his report no criminal case was found registered against my brother at P.S Sadar and after that when he was on the way back to Sessions Court Faisalabad, Tanvir Rehmat Awan met him to whom Abdul Sattar Wahla told that he had already conducted the raid at police station but detenue has not been found there. It is pertinent to mention here that Mr. Tanveer Rehmat Awan recovered my brother Fazal Qadeer the bailiff of Hon;ble Lahore high Court Lahore in compliance with the order passed by His lordship in Crl. Misc. No.1188-H/2009 the concerned police officials of Police station Saddar abducted my brother Fazal Qadeer and kept him confined firstly at police station and then at a brick kiln of Shoukat Bhatti, where Muhammad Ayub Sahi, posted 2 guards from Elite Force, and then Muhammad Ayub Sahi appeared before Hon'ble Lahore High Court Lahore in connection with the said writ petition. Mr. Tanveer Rehmat Awan also entered his arrival report against serial No.22 on 24-8-09 at about 6:00 pm in the Roznamcha of P.S. Sadar and also confronted Ayub Sahi with the situation. He further directed Muhammad Ayub Sahi to appear before Hon'ble Lahore High Court Lahore on next date.
Muhammad Ayub Sahi felt it ill and kept grudge in his heart and he forced me to withdraw the case F.I.R No.1022 Supra. But I refused, upon which he on different occasions advanced threats to me to be ready for results. So on 11-07-11 Muhammad Ayub Sahi along with police officials due to said reasons raided at my house, forcibly entered in it, took into possession cash lying in the cupboard and took me into his custody and when he came out from my house my guest Muhammad Afzal (my co-accused) was on the way to my house was also arrested by the said Muhammad Ayub Sahi and others."
In response to above question, Muhammad Afzal (appellant) relied upon the reply given by Muhammad Arshad (appellant). They did not opt to appear as their own witness in disproof of the allegations levelled against them however, they produced certified copy of FIR No.1022/2009 (Exh- DE), copy of FIR No.291/2012 (Exh-DF), attested copy of Rapt No.22 dated 24.08.2008 (Exh-DG), attested copy of Crl. Misc. No.1188-H/2009 along with report of Bailiff (Exh-DH & Exh-DH/1) in their defence.
5. After conclusion of trial, the learned trial court convicted and sentenced the appellants to imprisonment for life along with fine vide judgment dated 08.11.2012. The appellants assailed said judgment before this Court through Crl. Appeal No.1907 of 2012. Said appeal came up for hearing before a learned Division Bench of this Court on 13.06.2013 and the matter was remanded back to the learned trial court with the following direction: - "10. Therefore, without commenting upon the merits of this case, we remand this case back to the learned trial court with the direction to send the case property to the office of Chemical Examiner to ascertain the remaining quantity and nature of the same and then to decide the case afresh in the light of the report of the Chemical Examiner. Needless to add that after obtaining the report from the Chemical Examiner, the accused shall be examined under Section 342 Cr.P.C only to the extent of the report so received and in the light of the same the accused shall be at liberty to produce any defence evidence, if so desired..."
6. The learned trial court after following the above directions issued by a learned Division Bench of this Court and on receiving the report of Punjab Forensic Science Agency (Exh-PE) regarding the remaining quantity of contraband material again convicted the appellants as mentioned above vide impugned judgment dated 21.10.2014 hence, this appeal.
7. Learned counsel for the appellants, at the very out set, contends that he does not challenge the conviction of the appellants, however, to the extent of sentence, maintains that he will be satisfied if the appellants are sentenced in the light of Ameer Zeb's case (2012 PSC (Crl.) 130), keeping in view the report of Punjab Forensic Science Agency (Exh-PE) obtained by the learned trial court as directed by this Court in connection with Criminal Appeal No.1907 of 2012.
8. Learned Deputy Prosecutor General while controverting the contentions raised by learned counsel for the appellants, inter alia, maintains that the report of Punjab Forensic Science Agency (ExhPE) clearly reflects that besides Heroin 796 grams and Charas 750 grams, Psychotropic substances weighing 9878 grams have also been found available in the analyzed material, possession of which is also punishable under Section 9 of the Control of Narcotic Substances Act, 1997 hence, the conviction and sentence awarded by the learned trial court through the impugned judgment does not call for any interference by this Court being legally firm and justified.
9. Heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor General and have scanned the record with their able assistance.
10. We have observed that earlier while dealing with Criminal Appeal No.1907 of 2012 filed by the appellants, this Court remanded back the case to the learned trial court as is evident from the supra reproduced part of the said judgment, while observing as under: - "8. In view of all above, we are of the considered view that the matter should be remanded back to the learned trial court for the following reasons: -
(a) It has come on record through the evidence of PW-3 Ashiq Ali, A.S.I, a recovery witness, when the learned trial court on the request of the learned DDPP and the learned Defence Counsel ordered for de-sealing of the bags of the case property and observed as under: - "At this stage, learned DDPP has requested that two plastic Tora be de-sealed as the case property has come from Mall Khana and it was comprising upon various shopping bags, therefore, Incharge of said Mall Khana for the protection of this case property has packed it in two different big plastic bags/Toras and its de-sealing will bring the true picture before the court. I perused the plastic Tora and it is not sealed. On the request of learned DDPP, it was opened which contained parcels not contained in shoppers but it was white colour clothes sealed upon which contents of instant case are written. Witness was confronted with the parcel of opium and it was suggested to him by the learned defence counsel, it contained "Ghur" and not opium. It was requested for de-sealing the parcel. Learned DDPP has no objection. Parcel is de-sealed and from the parcel of opium Ghur has been recovered which was tasted by the witness as well as Khalid Akhtar ASI who brought the case property and they after tasted stated it was found Ghur. This parcel was re-sealed.
Learned defence counsel confronted the witness with the all parcels of Chras P-2/1-28, P-3/1-10 said to contain Charas and suggested the witness that it contained soap but the witness has denied it. At the request of learned defence counsel all the parcels are de-sealed. Request is allowed and it is directed that the parcel be de-sealed. On the de-sealing of all these parcels from the naked eye it appeared black soap. Learned defence counsel and DDPP also washed their hands with it. De-sealed parcels are re-sealed. I know the smell of Charas. It is correct that de- sealed parcels do not contain Charas.
The witness has been confronted by defence counsel about the all packets said to contain heroin P-1/1-20 and P-1/21 to 32 suggested the witness that the packets do not contain heroin but these are custard powder. Learned defence counsel requested to de-seal the parcels. Request is genuine and the same is allowed. Parcel P-1/1 20, P-1/21 to 32 are de-sealed. I cannot identify the material contained in the parcels. Anyhow, it is tasted, it is sweet powder in present form except P-1/16, P-1/14 & P-1/16, the colour formation of these parcels is different from the other parcels and taste is also different. It is incorrect to suggest that nothing was recovered from the possession of the accused person either narcotic or crime weapon."
(b) Record further reflects that after recording of the statement of PW-3 on 26.04.2012, the accused moved an application under Section 265-K Cr.P.C for their acquittal but the same was dismissed by the learned trial court being pre-mature to record the evidence of remaining prosecution witnesses. On 28.04.2012, learned DDPP conducting the prosecution case moved an application for analysis of the recovered narcotics/case property and the learned trial court dismissed the same on 19.05.2012 while observing as under: - "Statement of Ashiq Ali PW-3 was recorded on 26.04.2012. During cross examination this witness stated that the recovered substance is not Opium, Charas and Heroin, on the basis of which, present application has been filed. Perusal of record shows that statement of other recovery witness is yet to be recorded. During course of arguments, learned DDPP submitted that an inquiry is being conducted by the police in this matter. In this view of the matter at present there is no need for re-analysis of recovered material. Instant application being without merits is dismissed."
(c) We have also noted with concern that F.I.R No.491/2012 dated 02.05.2012 under Section 155-C of Police Order, 2002 (Ex.DF) was registered on the application of Ghulam Farid, Inspector/S.H.O, Police Station Sadar, Faisalabad, that reflects that from the case property produced in the court, 81/2 kilograms heroin, 91/2 kilograms charas and 01 kilogram opium were found missing and the same was misappropriated by Muhammad Ayub Sahi, Inspector/Investigating Officer of this case.
Prosecution case is silent about the fate of case F.I.R No.491/2012 (Ex.DF). However, PW5 Muhammad Ayub Sahi, Inspector, when appeared in this case on 04.06.2012, in his cross-examination has stated that F.I.R No.491/2012 registered at Police Station Sadar, Faisalabad had been cancelled.
9. In view of all above, we are quite in agreement with the learned Law Officer that the learned trial court remained fail to ascertain the actual quantity of the narcotic substances/case property produced in the court and the nature of the same which was absolutely necessary for just decision of this case. Learned trial court, while dealing with this situation in Para-11 of the judgment, remained confused about these material points. Needless to add that quantity of the narcotic allegedly recovered from an accused is a relevant factor while deciding a case under the Control of Narcotic Substances Act, 1997. Learned trial court in Para-11 of the judgment has observed that PW-3 was not an expert to say as to what was the nature of narcotics produced by the prosecution in the case and his saying that it was "Gurh, soap and Custard Powder" is not a conclusive proof of the same. It is correct that PW-3 was not an expert, but we are unable to understand that whey the learned trial court, in the peculiar circumstances of this case, did not send the case property for its analysis and allowing de-sealing of the same and after passing the observation, referred above."
11. The learned trial court following the supra observation and direction of this Court sent the remaining material/case property to Punjab Forensic Science Agency for its chemical analysis and the report (Exh-PE) reveals that 958 grams of Heroin and 756 grams of Charas could be detected in the said material while the report also transpires that no opium could be detected. However, it is relevant to mention here that 9878 grams, in total, of Psychotropic substance was also detected in the sent suspected parcels of Heroin and Charas but we are of the opinion that the detection of Psychotropic substance is of no use for the prosecution for the reason that as mentioned above in the earlier observation of this Court in Criminal Appeal No.1907 of 2012 and the statement of Ashiq Ali, ASI (PW3), it has been observed by the learned trial court that "Plastic Toras" in which the case property was secured were not sealed and the packets were not contained in the shoppers, as it was the case of the prosecution but the same were in white coloured clothe which reflects that the case property was no more intact and if any Psychotropic material has been detected by the Punjab Forensic Science Agency in the same, firstly, that is not the case of the prosecution, secondly, the said material was not found sealed and intact when produced before the learned trial court thirdly, the matter was remanded back to the learned trial court as discussed supra but the appellants were never indicted for the recovery of any Psychotropic substance from their possession hence, conviction of the appellants for the said Psychotropic substance is not warranted by law and there is no cavil about the proposition that benefit of every doubt is to be extended to the accused, however, as the conviction is not being challenged by the appellants, we are of the considered opinion that, at the most, the appellants could be convicted for the narcotics detected by the Punjab Forensic Science Agency as per report (Exh-PE) and the quantity of the sent narcotic for chemical analysis mentioned in the report (Exh-DA) and even if aggregate of both the quantities of heroin are calculated, it comes to 958 grams as per report (Exh-PE) plus 32 grams of heroin declared in report (Exh-PD) 990 grams in total that was recovered from the custody of Muhammad Arshad (appellant) while the quantity of Charas detected as per report (Exh-PE) is 750 grams while total 38 sample packets of Charas mentioned in earlier report of Chemical Examiner (Exh-PD) sent for chemical analysis, each containing 10 grams of Charas, make out a total of 380 grams of Charas and if both the quantities are calculated, it comes to 1130 grams of Charas. It is also important to mention here that as per Punjab Forensic Science Agency, no opium could be detected hence, only 10 grams of opium earlier sent for chemical analysis as per report (Ex-PD) is to be kept in consideration and as such 1140 grams of narcotics i.e. 1130 grams of Charas and 10 grams of opium was recovered from Muhammad Afzal (appellant). In view of all discussed above, the conviction of the appellants by the learned trial court is maintained, however, to the extent of sentence, we are of the opinion that the sentence already undergone by both the appellants would meet the ends of justice. Hence, the appellants Muhammad Arshad and Muhammad Afzal are sentenced to rigorous imprisonment already undergone by them. Following the sentencing policy enunciated by this Court in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), the amount of fine imposed upon Muhammad Arshad and Muhammad Afzal (appellants) by the learned trial court is also reduced from Rs.5,00,000/- and Rs.1,00,000/- to Rs.15,000/- and 20,000/-, respectively and in default thereof to undergo simple imprisonment for five months each.
They are also extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898. They shall be released forthwith if not required to be detained in any other criminal case.
12. With above modification in the quantum of sentence of the appellants, instant appeal is disposed of.