MUHAMMAD IQBAL MAHAR, J.---The appellants have challenged the judgment dated 26.08.2015 passed by learned Special Judge, Narcotics, Tharparker @ Mithi in Special Case No. 01 of 2015 [re: State v. Feroz Khan Pathan and others, arising out of Crime No.13/2015 of P.S. Mithi offence under section 9(c), Control of Narcotic Substances Act, 1997, whereby they 'have been convicted and sentenced for transportation of opium to suffer R.I. for 14 years with fine of Rs.100,000/- each and for the possession of narcotics and they are also sentenced to suffer imprisonment for 14 years R.1. with fine of Rs.100,000/- each and in case of default thereof, they shall suffer S.I. for six months more. However benefit of section 382-B, Cr.P.C. has been extended to them and it has been ordered that all the sentences shall run concurrently.
2. Precisely, prosecution story is that on 02.03.2015 at 07.00 p.m., complainant, SIP, Taj Muhammad Bhayo along with his subordinate staff, left PS for patrolling vide entry No.18/2.3.2015. After patrolling different places when at about 10.00 p.m., they reached at old Naka Mithi received spy information that five persons of Pathan community having bags in their hands are waiting for the vehicle near police check post on Phangario to Badin Road. The complainant, therefore, called CIA and special police teams with their mobiles, who joined the complainant party and thereafter they proceeded towards the pointed place and found five persons having bags in their hands standing on southern side of road. The police party apprehended them and took their bags in the custody. The accused persons disclosed their names as appellants. The complainant party recovered four ball type pieces of opium from accused Feroz Khan, three ball type pieces of opium from accused Fazal Wahid, two ball type pieces of opium from accused Gul Habib, 13 stamps and four ball type pieces of opium from accused Fazal-ur-Rehman and two ball type pieces of opium from accused Dilber Khan, which were weighed and each ball became 1000 grams. The Police also recovered cash in the shape of different currency notes, CNIC, mobile phones and the clothes. On inquiry the accused persons disclosed that they used to purchase the opium from their areas and to sell in the villages.
Due to non-availability of private person, the complainant, in presence of police mashirs, separated 10 grams from each ball of opium as sample, sealed the same separately and the remaining opium was also sealed in the bags separately. Such memo was prepared and thereafter the complainant brought the accused and case property at police station, where he lodged the FIR on behalf of the State. After usual investigation the I.O. submitted challan in the Court of learned Special Judge.
3. The learned trial Court after completing legal formalities framed the charge against the appellants for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, to which they pleaded not guilty and claimed their trial.
4. At trial, the prosecution, in order to establish its case examined 03 witnesses and then learned D.P.P closed the side of prosecution. Statements of appellants/accused were recorded under section 342, Cr.P.C. in which they denied the allegations leveled against them and claimed their innocence. However neither they examined themselves on oath nor led any evidence in defence.
The learned trial Court after hearing the counsel for the parties and appraising the evidence convicted the appellants as above, hence they have preferred instant appeal.
5. Learned counsel for the appellants Nos. 1 to 4 contended that the appellants are innocent and they have falsely been involved in this case by the complainant; that the impugned judgment passed by learned Special Judge is contrary to law and facts of the case: that there are material contradictions in evidence of PWs which have not been considered by learned trial Court; that the learned trial Court has not considered the delay in sending the samples to Chemical Examiner; that all the PWs are police officials and not a single private person was associated in recovery proceedings by the complainant which is clear violation of section 103, Cr.P.C.; that the learned trial Court has failed to consider the version of appellants given by them in their statements under section 342, Cr.P.C. , therefore, case is not free from doubt and appellants are entitled for acquittal.
In support of his contention he relied upon case of Ghulam Hussain and 9 others v. The State (2011 PCr.LJ 72), Shafiullah v. The State (2007 YLR 3087) and Shafqat Mahmood v. The State (2015 YLR 2163).
6. Learned counsel for appellant No. 5 added that the samples were not produced before the Court at the time of examination of witnesses; that no fake customer was sent to ascertain the fact of selling the charas. He lastly concluded that sentence awarded to appellants is against the schedule of sentence given in case of Ghulam Murtaza v. The State (PLD 2009 Lah. 362) and Ameer Zeb v. The State (PLD 2012 SC 380).
7. Conversely, learned DPG while refuting the contentions of learned counsel for the appellants submitted that huge quantity of opium was recovered from the possession of appellants which being costly can not be foisted upon them and the prosecution has succeeded to prove its case against the appellants beyond reasonable doubt. However he conceded that the sentence awarded to appellants is not in accordance with sentencing policy given in case of Ghulam Murtaza v. The State and Ameer Zeb v. The State (supra).
8. We have heard the arguments of learned counsel for the appellants, learned DPG and have perused the record including impugned judgment minutely.
9. Perusal of record reveals that the appellants were apprehended at Phanghario Road and about 15000 grams of opium was recovered from their possession. The prosecution examined three witnesses, i.e, mashir ASI, Panju Mal at Ex. 9, complainant, SIP Taj Muhammad Bhayo at Ex.11, and investigating officer SIP, Hamirji at Ex. 12, they have fully supported the prosecution case and corroborated the statements of each others. They are consistent on the material points that opium was recovered from the appellants, samples were separated and sealed, the case property was also sealed at spot in presence of mashirs and the appellants were arrested at spot. Despite lengthy cross-examination by learned counsel for appellants nothing could be brought on record adverse to the case of prosecution. No doubt some minor contradictions have come on record due to lengthy cross-examination but the same can be ignored. In this respect we are fortified by case of Zulfiqar Ahmed and another v. The State (2012 SCMR 492).
10.Report of Chemical Examiner reveals that the seals of parcels were perfect as per copy sent by police and the samples were containing opium. The report has been produced in evidence by investigating officer at Ex. 12A. Furthermore the appellants, who are resident of Bajore Agency, have failed to prove their enmity with the police of District Tharparkar Sindh.
11.As far as the contention raised by learned counsel for appellants Nos. 1 to 4 that all the witnesses are police officials and no private person was associated in recovery proceedings thus the complainant has violated the provision of section 103, Cr.P.C. It is stated that provision of section 25 of Control of Narcotic Substances Act, 1997, excludes the application of section 103, Cr.P.C., in narcotics cases, secondly the recovery was made at night time from a Road where no private person was available, therefore the contention has no value. Furthermore, it has been held by honourable Supreme Court in many cases that the Police officials are good witness as any other public witness unless the animosity is proved against them, therefore, evidence of police officials F could not be discarded merely on the ground that they were police officials. In this respect reference can be made to case of Nur Hassan v. The State (1993 SCM R 1608).
12.So far as the contention of learned counsel for the appellants that there is delay in sending the sample to Chemical Examiner. Apparently there appears no delay in sending the samples to the Chemical Examiner for the reason that the recovery was made from the appellants on 2.3.2015 at 2230 hours and the samples were received in the office of Chemical Examiner on 4.3.2015, therefore, there is no force in the submissions made by the learned counsel for the appellants. The case law relied upon by learned counsel for the appellants has no relevancy with the facts of instant case.
13.Adverting to the contention of learned counsel for appellant No.5 that samples were not produced in Court at the time of recording evidence of witnesses. In this respect we would like to reproduce a sentence written in Chemical Examiner's report and available at Ex.12-A "All contents from the above each fifteen parcels consumed in analysis". This clearly shows that all contents in 15 samples were consumed hence there remain no question of production of the samples in the Court.
14.For what has been discussed above we are convinced that no ground for interference in the impugned judgment is made out, therefore impugned judgment is upheld. However it appears that the conviction and sentence awarded to the appellants by learned trial Court is not in accordance with schedule given in case of Ghulam Murtaza v. The State upheld by honourable Supreme Court in case of Ameer Zeb v. The State, therefore while following the yardstick of sentence provided therein we, dismiss this appeal and modify the sentence as under: 15.As per prosecution case 4000 grams of opium was recovered from each appellants Feroz Khan and Fazal-ur-Rahman, therefore their sentence is reduced to 6 years and fine of Rs. 10,000/- and in default S.I. for 6 months and 15 days. 3000 grams of opium was recovered from appellant Fazal Wahid, therefore his sentence is reduced to 5 years and fine of Rs. 9000/-and in default SI for 5 months. 2000 grams of opium was recovered from each appellants Gul Habib and Dilber, therefore their sentence is reduced to 4 years and fine of Rs. 8000/- and in default 5 months and 15 days.
16. With above modification this appeal is disposed off.