FAHIM AHMED SIDDIQUI, J.---The appellant, through the instant Criminal Appeal has assailed the conviction judgment dated 01.03.2018, passed by learned Special Judge, CNS Act, Hyder abad in Special Case No.65 of 2017 emanating from Crime No. D040400817, for the offence punishable under sections 6, 9(c) CNS Act, 1997, registered at Police Station A.N.F . Hydera bad. The impugned judgment was pronou nced after finding the appellant, guilty for an offence under section 9(c) CNS Act, 1997 and convicted him to undergo R.I. for a term of five years with fine of Rs. 15,000/ - and in default, he shall undergo simple imprisonment for three months more. The trial Court also extended the benefit of section 382-B of Cr .P.C. to the appellant.
2. The factual matrix of the case is that on 08.05.2017, the appellant was apprehended by SIP Muhammad Mashooque of Police Station A.N.F . Hyde rabad and recovered 2500 grams hashi sh [charas] and cash amount of Rs.1200/- from his possession in presence of mashirs ASI Raza Ali and P .C. Yasir Ali.
3. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence. The learned trial Court framed the charge against the accused, who pleaded not guilty and claimed trial.
4. In order to establish their case, the prosecution examined PW-01 mashir Constable Yasir Ali [Exhibit-05], who produced mashirnama of arrest and recovery [Exhibit-05/AJ, PW-02 Complainant SIP Muhammad Mashooque [Exhibit-06], who produced FIR, departure and arrival entries, copy of letter addressed to Chemical Examiner , Chemical Examiner's Report and copy of entry No.158 of malkhana [Exhibits-0 6/A to 06/E respectively]. After closure of the side of the prosecution under the statement of Special Prosecutor A.N.F . (Exhibit-07), the statement of the accused was recorded under section 342, Cr.P.C. (Exhibit-08). In his statement, the accused denied all the allegations leveled against him by the prosecution and claimed his innocence. Appellant further stated that he has falsely been implicated due to refusal of illegal gratification.
5. Learned counsel for the appellant contends that the appellant is an innocent and he has been falsely implicated in the instant case. He points out that the place of incident is a busy road near a Petrol Pump but despite this, no private person was associated to witnes s the recovery proceedings while there are contradictions between the prosecution witnesses. He submits that there is no previous criminal record of the appellant showing involvement of the appellant in such type of cases. He prays for acquittal of the appellant OR in alternate reduction of sentence to one already undergone by the appellant.
6. On the other hand, learned Special Prosecutor pressed that the trial Court has rightly convicted the appellant on the basis of corroborative and convincing evidence and material produced by the prosecution. He further contended that the impugned judgment does not suffer from any infirmity or illegality which may invite interference by this Court. However , learned Special Prosecutor has raised no objection if the sentence is reduced to already undergone.
7. We have heard the arguments advanced and have scanned the relevant record available or produced before us. According to FIR, the complainant party had prior spy information about the appellant having hashish [charas] carrying but admittedly no private person was associated to witness the recovery proceedings even the alleged recovery is stated to have taken place, from the populated area. Though it is settled standard that judicial approach must to be conscious in dealing with the cases in which testimony pivots upon the evidence of police officials alone but we are also conscious of the fact that provisions of section 103, Cr.P.C. are not attracted to the cases of personal search of accused. However , where alleged recovery was made on road side i.e. at Fateh Chowk Hyderabad near Petrol Pump, which is meant for traffic, failure to secure independent mashirs, cannot be brushed aside lightly by the Court. Main object of section 103, Cr.P.C. is to ensure transparency and fairness on the part of the police during course of recove ry restrain false implication and diminish scope of foisting fake recoveries upon accused and the complainant only relied upon his subordinate police constables but did C not associate private person to witness recovery proceedings. With regard to non-association of independent witness in the recovery proceedings, we are fortified with the cases of 'Nazir Ahmed v. The State' [PLD 2009 Karachi 191] and 'Muhammad Khalid v . The State' 1998 (PCr .LJ 808).
8. It is worth noting that according to prosecution witnesses they tried to associate private person at the place of recovery but the private persons excused, however , admittedly no action was taken against said private persons as per law, hence, such assertion does not carry weight or strengthen such plea. Admittedly in presence of prior information to the A.N.F . officials, no fake customer was sent for purchase of charas from the appellant before raiding and alleged recovery . Another aspect of the case is that SIP Muhammad Mashooque is complainant of this case so also Investigating Officer but in our view the person who is complainant of the case cannot investigate the same case, which must be investigated by an independent officer but not by the complainant himself. Constable Muhammad Ameen, who carried the case property to the Chemical Examiner , was not examined by the prosecution in order to show the safe transmission to the office of Chemical Examiner by him but inspite of certain discrepancies, the case against the appellant is established but since the appellant is a youngman, therefore, the conviction awarded by the trial Court appears to be excessive.
9. In narcotics although there is a sentencing policy as described in the case of 'Ghulam Murtaza v. The State'
[PLD 2009 Lahore 362], which was affirmed by the Hon'ble Supreme Court in the case of 'Socha Gul v. The State'
[2015 SCMR 1077 ] but in the present case in view of the above discussion there exists reasons for departure to the sentencing policy mentioned in the cases of 'Ghulam Murtaza' and 'Socha Gul' [supra] as discussed in the case of 'State v . Mujahid Nasim Lodhi' [PLD 2017 SC 671 ].
10. Since appellant is in Jail from the date of his arrest and has served out a sufficient period of his sentence, therefore, while taking a leniency and dismissing this Criminal Appeal we reduce the sentence of appellant to one already undergone and also reduce the fine amount from Rs.15,000/- to Rs.5,000/ - with order if the fine amount of Rs.5,000/- is not paid by the appellant then the same will be recovered from him as Land Revenue.
Instant Criminal Appeal is dismissed with above modification.