AFTAB AHMED GORAR, J.---Through this Criminal Jail Appeal, the appellant has challenged the judgment dated 28-10-2011, passed by learned Special Judge (Narcotics), Shaheed Benazirabad, in Special Case No.111 of 2009, Crime No.05 of 2009 of Police Station Excise Sakrand, under section 9(c), C.N.S. Act, 1997. The appellant was convicted and sentenced to undergo imprisonment for life with fine of Rs.500,000/- (Five Lac) in default whereof, to undergo R.I for one year more. However, appellant was extended benefit of section 382-B, Cr.P.C.
2. Allegation against the appellant is that on 18-03-2009 he along with absconding co-accused Saleem came in Trailer bearing registration No.R-6585 from Sakrand side, when Excise Police of D.I.O Camp, Sakrand stopped the said Trailer and during its search, the complainant secured 1200 packets weighing 1200 kilograms charas lying in packets in sixty plastic bags from secret compartments available in back side floor of Trailer; and as per prosecution the accused were transporting the charas.
3. After due formalities, the charge was framed against the appellant and trial as such started against him. To prove its case prosecution examined PW-1 complainant Excise Inspector Zulfiqar Ali Shaikh at Ex:09, who produced mashirnama of recovery at Ex:09/A, F.I.R. At Ex:09/B, roznamcha entry Nos.1 and 2 at Ex:09/C & Ex:09/D and Chemical report at Ex:09/E and PW-2 mashir EC Abdul Razzak was examined at Ex:10. The appellant in his statement recorded under section 342, Cr.P.C. Denied the case of the prosecution and claimed his innocence. The appellant however, neither examined himself on oath nor led any evidence in his defense.
4. Learned trial Judge after considering the evidence and hearing the parties convicted the appellant in the manner as stated above through the impugned judgment.
5. Miss Aliya Sehar Kaimkhani, learned counsel for the appellant argued that the appellant is innocent and has been implicated due to enmity as on 23-02-2009 while the appellant was coming on a Truck, the complainant demanded Rs.10,000/- from the appellant when he did not pay the amount, he was kept in wrongful confinement for two hours and such complaint was made to the Director Excise and Taxation Sukkur on 24-02-2009. She contended that the appellant was wrongly convicted by the learned trial Court as there was no confidence-inspiring evidence produced by the prosecution against him. As per learned counsel, the charas was not recovered from the exclusive possession of appellant as the charas was allegedly recovered from the secret compartment of Trailer, which does not belong to the appellant and the appellant was unaware regarding the charas. She further contended that police has failed' to associate private mashirs in the recovery proceedings though it was easy for police to associate any public mashir as the place of recovery is stated to have taken place at Highway road but failed to do so, therefore, the recovery is highly doubtful. According to her, the case is full from doubts and it was a rule of prudence to extend benefit of doubt to the accused not as a matter of grace but as a matter of right. She lastly prayed for the acquittal of appellant.
6. On the other hand, Mr. Shahzado Saleem Nahiyoon, Assistant Prosecutor General, Sindh appearing on behalf of the State contended that prosecution has succeeded to bring the confidence-inspiring evidence against the appellant on record which is reliable and unimpeachable evidence produced before the trial Court and the trial Court has rightly convicted the appellant. He next contended that the appellant is booked in the instant case for recovery of a huge quantity of charas supported with the un-shattered evidence of complainant and mashir, therefore, the appellant could not be allowed to go unpunished in presence of trustworthy evidence. According to him, by the conviction awarded to the appellant, the ends of justice stood satisfactory served. He pointed out that the trial Court has already taken a leniency in the punishment and finally requested for dismissal of the instant appeal and maintaining the sentence by arguing that the findings of trial Court against the appellant needed no interference by this Court.
7. We have heard both the learned counsel for the appellant and learned A.P.G. Sindh for the State and perused the material available on record.
8. The prosecution witnesses viz, the complainant Inspector Zulfiqar Ali Shaikh and the mashir Excise Constable Abdul Razzak Bhatti in their depositions have corroborated their evidence to each other as well as recovery. A look at the corroboratory evidence of the A prosecution witnesses would reveal that it is supported with regard to the recovery of a huge quantity of charas and the same has not been shattered by the appellant. The sample of the recovered case property i.e. Charas has also been certified by the Chemical Examiner.
9. The defense counsel put the question from the complainant regarding false implication of the appellant that he was implicated by the complainant due to enmity as appellant made a complaint against complainant to the Director Excise and Taxation, Sukkur for keeping him in wrongful confinement upto two hours and -demand of Rs.10,000/- but the complainant in his evidence during cross-examination has denied this plea; and the appellant has neither produced any copy of such complaint in his statement under section 342, Cr.P.C. Nor got examined any official of the Director Excise and Taxation, Sukkur in order to substantiate that such complaint was made. A minutely perusal of statement of the appellant recorded under section 342, Cr.P.C. Would reveal that the appellant has taken another plea when a question was put to him that Do you want to say anything else? To which, the appellant replied as under:- At Peshawar ring road Lal Badshah gave me Trailer and Cement was loaded in the Trailer. The said Lal Bashshah delivered Cement at Moro and got seated me Saleem outside. Then Lal Badshah asked Saleem that he should drive the Trailer upto Hyderabad. The Excise Police gave signal and when Saleem stopped the Trailer, the Excise Police alighted we all the persons. Then kept confined us in the room. Then after 20 minutes the Excise Inspector took away Lal Badshah outside the room.
At evening prayer time the Excise Police took out from the room. The Excise Inspector Zulfiqar Shaikh ask the Saleem as to where is Lal Badshah on which he asked him that Lal Badshah has escaped away. The Excise Inspector ask us that we should pay him Rs.10,00,000/- and then we should go. We did not pay the amount and then he asked us that there is narcotic articles in our vehicle. Then Excise Inspector challaned us and send us to Jail."
10. From the above reply of the appellant, it appears that nowhere, the appellant has denied their captivity and capture of Trailer. The appellant is silent in his statement under section 342, Cr.P.C. For making complaint before the Director Excise and Taxation, Sukkur against the complainant though such question was put in cross-examination of the complainant, which was denied. Meaning thereby, the appellant has two versions in his defense; one is demand of Rs.10,000/- by complainant on 23-02-2009 and making complaint against the complainant; and the other is demand of Rs.10,00,000/- by the complainant for release of appellant; and these versions of the appellants are not supported by any documentary proof as stated above.
11. It is not established by the appellant that the complainant had any enmity with the appellant who belongs to other province or had some motive for false implication. In the instant case, a huge quantity of charas is recovered and there are no reasons for disbelieving the recovery of such huge quantity of charas. Nothing has been brought in the cross-examination of the complainant and mashir to shake their credibility or otherwise to induce them to falsely implicate the appellant.
12. As per well settled principles of criminal administration of justice, the conviction can be awarded to an accused, only after reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story is brought on record. In the present case, the prosecution has brought the reliable, trustworthy and unimpeachable evidence without any discrepancy or cloud over the veracity of prosecution story as it is un-shattered and corroborative testimony so also the sample is certified by the Chemical Examiner to be charas which can be said hazardous to the lives of youngest. The prosecution has succeeded to bring on record the evidence of that quality and degree beyond any shadow of doubt, which would justify maintaining conviction and sentence against the appellant.
13. In view of above facts and circumstances, we are of the view that the appellant does not deserve for further leniency as trial Court has already taken leniency, therefore, no interference in the findings of conviction recorded by the trial Court against the appellant is necessary.
Consequently, instant Criminal Jail Appeal is dismissed.
14. These are the reasons of our short order pronounced by us in open Court on 02-11-2015.