' CH. EJAZ YOUSAF, J.--- This appeal is directed against the judgment, dated 20-5-1996 passed by the learned Additional Sessions Judge, Nushki whereby the appellant has been convicted under Article 3(2) of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to undergo R.I. For fifteen years and to pay a fine of Rs,three lacs or in default to further undergo S.I. For three years alongwith twenty stripes. Benefit of section 382-B, Cr.P.C., has however, been extended to the appellant.
2. Briefly stated, the prosecution case as gathered from the record is that on 18-8-1995 complainant Haji Safar Khan Dafaidar Levies alongwith Nabi Dad Levies sepoy were on usual Gasht in the area of Bar-aab-Chah. At about 4-00 a.m. They saw the appellant who had entered into Pakistan Territory alongwith a camel load of goods. He was intercepted and on suspicion, the pair of dorsers, lying on the camel's back were searched. Consequently eight bags of opium alongwith certain arms and ammunition were recovered from inside thereof. Appellant therefore, was taken to the Bar-aab-Chah Levies Check Post situated at a distance of three miles from the place of incident. Assistant Commissioner and Tehsildar concerned were called and in their presence the contraband material was taken out from the recovered opium was sealed on the spot and taken into possession vide the recovery memo. Exh.P.1/A. F.I.R. Bearing No,21/22/95 was registered at the Levies Station Tehsil Dalbandin and investigation was carried out in pursuance thereof. On the completion of investigation the appellant was challaned to the Court for trial.
3. Charge was accordingly framed to which the accused/appellant pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegation levelled against the accused/appellant produced three witnesses, in all. P.W.1 Haji Safar Khan is the complainant, He, at the trial, while reiterating the version contained in the F.I.R. Deposed that in his presence the contraband material alongwith certain arms and ammunition were recovered from the possession of the appellant which was taken into possession by the levies authorities vide recovery memo. Exh.P.1/A, in his presence. He added that the contraband material was transported by the appellant and brought into Pakistan Territory from Afghanistan. In the course of his cross- examination he admitted the suggestion as correct that the contraband material was not weighed on the spot and instead it was weighed on the Levies Check Post, in the presence of Assistant Commissioner. He refuted the suggestion as incorrect that the camel whereon the contraband material was being carried did not belong to the appellant. He also refuted the suggestion as incorrect that, at the time of his arrest, the appellant had disclosed to him i.e. The witness that the recovered opium as well as the arms and ammunition etc. Belong to Mahmood and Karim. He also refuted the suggestion as incorrect that he had deposed against the appellant falsely at the instance of the Tehsildar and the Assistant Commissioner. P.W.2 Syed Abdullah is the Chemical Expert. He produced in Court report as Exh.P.2 and confirmed that the contraband material recovered from the possession of the appellant and sent to him for analysis was opium. P.W.3 Wahid Baldish is Tehsildar Noukundi. He deposed that on the report made by the complainant, he had informed Assistant Commissioner, Dalbandin regarding the incident. In consequence whereof both visited the Levies Check Post where in their presence the pair of dorsers (URDU TEXT) lying on the camel back were searched and from inside thereof 72 Kgs. Opium was recovered. He confirmed that the contraband material was weighed, seized and sealed in presence of the witnesses. In the course of his cross-examination he admitted the suggestion as correct that the appellant was apprehended from the mountain of Dokechi, however, voluntarily stated that Dokechi Mountain is situated adjacent to Bar-aab-Chah. In answer to. The question as to why any independent witness of the area was not taken to witness the recovery he stated that since the area of Bar-aab-Chah is not inhabited, therefore, it was not possible for them to associate any independent witness. He also refuted the suggestion as incorrect that .The appellant was implicated in the case falsely, on account of enmity with levies personnel.
5. On the conclusion of the prosecution evidence the accused/appellant was examined under section 342 as well as 340(2), Cr.P.C. In his statement, he denied the charge and pleaded innocence. His case before the trial Court was that he in the night of occurrence had stayed in the house of P.W.1 Majeed in the area of Dokechi and his minor son, who was ill was with him. After morning prayers, he left the house of said Majeed. At a distance of about half a mile met the complainant and one Nabi Dad levies sepoy who asked him to accompany them to the road.
There he saw two persons namely Mahmood and Karim who gave a sum of Rs,40,000 to Nabi Dad.
The appellant was arrested and falsely implicated in the case. He produced two witnesses D.W.1 Abdul Majeed and D.W.2 Shabbir Ahmad, in his defence. D.W.1 Abdul Majeed deposed that a day prior to the occurrence appellant had come to his house, spent night there and left in the morning at prayers time. He was accompanied by his ailing son namely Ghazi. He further deposed that after the incident he, visited the check post and saw that minor son of the appellant was sitting outside the check post. On inquiry he was told that the appellant was detained by the Levies Authorities. He added that he had seen Karim and Mahmood who were present at the check post and they gave Rs, 40,000 to Nabi Dad Levies Sepoy who, in turn, handed the same over to the complainant. Later on he was asked by the levies personnel to take away appellant's son, which he did. In the course of his cross-examination he disclosed that he had visited Bar-aab-Chah Check Post on foot at his own and had left his house at about 8 tp 8-30 a.m. D.W.2 Shabbir Ahmad, Naib-Tehsildar produced some record concerning the complainant as Exh.D./2-A to Exh.D/2-H. In the course of his cross- examination he disclosed that some time ago a few trucks, wherein marble was loaded were apprehended. It was suspected that it was smuggled into Pakistan from Afghanistan. All the officials from whose jurisdiction, those trucks passed through, were suspended. He, however, clarified that it was a departmental inquiry and had no connection with any case.
6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para. Hereof.
7. We have heard Raja Muhammad Afsar, Advocate, learned counsel for the appellant, Mr. Ziaullah Khan, Advocate, for the State and have also perused the entire record with their help.
8. Raja M. Afsar, Advocate, learned counsel for the appellant has raised the following contentions:--
(i) That solitary statement of the complainant was not sufficient to warrant conviction of the appellant and due to non-examination of Nabi Dad levies sepoy, who was allegedly accompanying the complainant at the time of occurrence, an adverse inference ought to have been drawn against the prosecution by the trial Court.
(ii) That the challan was not routed through S.P. Concerned, in clear violation of section 173, Cr.P.C., therefore, the defect had vitiated the trial.
(iii) Additionally it was also submitted by him that the appellant being first offender and sole bread earner of his family, which in his absence has been subjected to poverty, may be dealt with leniently.
9. Mr. Ziaullah Khan, Advocate, learned counsel for the State, on the other hand, while controverting the contentions raised by the learned counsel for the appellant urged:--
(i) That it was proved to the hilt by the prosecution that the appellant was responsible for the transportation of huge quantity of opium, therefore, the impugned judgment was unexceptionable,
(ii) That report of the Chemical Examiner was positive to the effect that the contraband material was opium.
(iii) That the levies personnel had no enmity with the accused/appellant nor has any motive been shown to falsely implicate the accused, and
(iv) That the place and manner of the recovery both have not been disputed.
10. We have given our anxious consideration to the respective contentions of the learned counsel for the parties.
11. In order to supplement his first contention that solitary statement of the complainant was not sufficient to bring home charge against the appellant, the learned counsel for the appellant has contended that in order to prove its case prosecution has examined only one eye-witness namely Haji Safar Dafaidar Levies who is also complainant in this case whereas, other witness of the crime namely Nabi Dad Levies Sepoy who was also accompanying the complainant at the relevant time was not examined at the trial and no explanation therefor was offered. He submitted that since the offence with which the appellant was charged was punishable with imprisonment for life, therefore, appellant could not have been convicted on the solitary statement of P.W.1 particularly when the recovery was not corroborated by any other piece of evidence. Learned counsel for the appellant maintained that in the circumstances an adverse inference ought to have been drawn by the learned trial Court against the prosecution for non-production of the other witness of the crime.
It appears that the learned counsel for the appellant has raised this objection, perhaps under a misconception because firstly, by now, it is well-settled that prosecution is not bound to examine each and every witness of the crime and neither adverse inference can be drawn on account of non-production of some or any of the P. Ws. Nor can it, in any manner, affect the credibility of those witnesses who have been examined. The only question relevant is "as to whether evidence produced at the trial actually, was sufficient to prove the charge? Reference in this regard may usefully be made to the following reported judgments:--
(1) Muhammad Ashraf v. The State 2000 SCM R 741,
(2) Muhammad Akhtar Ali v. The State 2000 SCM R 727,
(3) Saeed Akhtar v. The State 2000 SCM R 383,
(4) Muhammad Ahmad and another v. The State 1997 SCM R 89,
(5) Ziaullah v. Tne State 1993 SCM R 155,
(6) Zar Bahadur v. The State 1978 SCM R 136,
(7) The State v. Mushtaq Ahmad PLD 1973 SC 418,
(8) Allah Yar v. Crown PLD 1952 FC 148, and
(9) Malik Khan v. King-Emperor 72 IA 305 (PC).
Secondly, it is not the number of witnesses but quality and credibility of the evidence which is to be considered. Though in accordance with the principle of "safe administration of justice" at times, the statement of a solitary witness is not considered enough to base conviction thereon, yet, generally, where, a witness is found completely independent and wholly reliable his testimony ipso facto is believed' and corroboration thereof is sought for as a matter of prudence, only. In this view we are fortified by the following reported judgments:--
(i) Gulistan and others v. The State 1995 SCM R 1789,
(ii) Allah Bakhsh v. Shamsi and another PLD 1980 SC 225,
(iii) Bacha Said v. The State PLD 1978 SC 102,
(iv) Ramzan and another v. The State 1973 SCM R 245,
(v) Muhammad Khan v. Ahmad and 2 others 1972 SCMR 620,
(vi) Shah Wali v. Crown 1971 SCM R 273,
(vii) Muhammad Ashraf v. The State 1971 SCM R 530,
(viii) Muhammad' Siddique alias Ashraf and 3 others v. The State 1971 SCM R 659,
(ix) Mali v. The State 1969 SCM R 76, and
(x) Ali Ahmad alias Ali Ahmad Mia v. The State PLD 1962 SC 102.
' And thirdly; it is wrong to say that in the instant case no corroboratory piece of evidence was available. In our view, recovery of huge quantity of narcotics i.e. 75 Kgs. Of opium (which was supervised by the Assistant Commissioner) and arrest of the appellant from the place of occurrence lend sufficient support to the testimony of P.W.1. The contention, therefore, has no force.
12. As regards the next contention that since the challan was not routed through the Superintendent of Police concerned, therefore, the "defect" had vitiated the trial, it may be pointed out here that even prior to the amendment made in section 173(1) through the Code of Criminal Procedure Amendment Act (XXV of 1992), w,e,f, 1-12-1992, whereby it was provided that thenceforth, reports under section 173, Cr.P.C. Shall be forwarded to the Court through Public Prosecutors, there was no such legal requirement that report be routed through the Superintendent of Police. A bare perusal of section 173, Cr.P.C. Which is reproduced hereinbelow for ready reference and convenience would itself crystallize the position:-- "Section 173, Report of Police Officer.--- (1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer-in-charge of the police station shall [through the Public Prosecutor]---
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the [Provincial Government], setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior Officer of Police has been appointed under section 158, the report shall in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.
(3)
(4)
(5)
It would not be out of place to mention here that in the cases of transportation or possession of narcotics which are crimes against the society, technicalities, procedural or otherwise, should not be given serious thought, if the case stands otherwise proved. In this view we are fortified by the observations of the Honourable Supreme Court of Pakistan in the case of Munawar Hussain and others v. The State reported as 1993 SCMR 789 wherein it has been laid down that in narcotics cases approach of the Court should be dynamic and technicalities should be overlooked in the larger interest of the country and the public-at-large and while deciding the case the Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding such procedural defect. It would be advantageous to reproduce hereinbelow the relevant observations which read as under:-- "We may observe that the Court cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized affluent and influential and, therefore, generally they manage to cause dents in prosecution evidence. In such-like cases, which are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generation addicts to narcotic; the Courts approach should be dynamic and they should overlook technicalities in the larger interest of ,the country and the public-at-large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved conviction should be recorded."
' We, therefore, do not find force in this contention of the learned counsel for the appellant as well.
13. After minutely going through the evidence' on the record we find that the findings recorded by the learned Court 'below have the support of evidence and are well-reasoned. In the instant case the complainant has given an explicit testimony about the occurrence and has categorically stated that when intercepted, appellant was carrying a camel load of contraband material. He was apprehended near the Pak-Iran Border as he had just entered into the Pakistan Territory from Afghanistan. His testimony is corroborated by the recovery of the contraband from the possession of the appellant, whereas appellant's arrest from the place of occurrence lends further support to the prosecution version. Further P.W.3 Tehsildar Noukundi who had also supervised the recovery, corroborates him on all material points i.e. Regarding the place and time of arrest of the accused, recovered quantity of opium and preparation of memos. As well as the. Parcels. Chemical Examiner's Report i.e. Exh.P.2 confirms that the contraband material recovered from the possession of the appellant was "opium". Though appellant has disputed that contraband material was recovered from his possession and his plea before the trial Court was that it was implanted upon him at the instance of two persons namely Mahmood and Karim yet, a careful perusal of record shows that the defence plea was a sham. Unresonence thereof is ascertainable from this fact alone that in his statement on oath, the appellant has pleaded that he had left D.W.'s house at morning prayers time and after covering a distance of about half a mile, he met the complainant as well as said Nabi Dad whereafter, they proceeded towards the road and there, Mahmood and Karim allegedly gave Rs,40,000 to Nabi Dad so that the appellant may be falsely roped in the case, whereas D.W.1 Majeed deposed that when he reached the Bar-aab-Chah Check Post (which is quite a distinct and separate place) at about 8 or 8-30 a.m., Mahmood and Karim both were also present there and in his presence, they handed over a sum of Rs,40,000 to Nabi Dad. Thus, he materially contradicts the appellant on the point of time as well as the place where, allegedly said Mahmood and Karim gave money to Nabi Dad.
The fact cannot be lost sight of that at the trial neither enmity was alleged against Mahmood and Karim (at whose instance the appellant, according to him, was implicated) nor it was pleaded that the Levies Authorities had any animous or towards the appellant, therefore, it does not appeal to one's mind that such a huge quantity of narcotics as well as the arms and ammunition which is valued in lacs of rupees could be implanted just to implicate the appellant and that too, for a petty sum of Rs,40,000 only. The learned trial Court, as such has rightly convicted the appellant for the offence.
14. In the end, it has been contended by the learned counsel for the appellant that the appellant is an aged man of about 64 years. He is first offender and sole bread earner of his poor family which, in his absence, has been subjected to poverty, therefore, a lenient view may be taken in the matter of sentence and the appellant being repentant may be given a chance to mend his ways. Mr. Zia Ullah Khan, Advocate, learned counsel for the State has neither controverted the contention raised by the learned counsel for the appellant nor has he any objection in case moderate reduction in the sentence is made.
' We, therefore, keeping in view the submissions made by the learned counsel for the parties and facts of the case, while maintaining conviction of the appellant under Article 3(2) of the Prohibition Order, 1979 are inclined to reduce sentence of imprisonment recorded against the appellant by the learned trial Court in the hope that the indulgence shown to him would bring out of him a law- abiding and respectable citizen. Accordingly, sentence of imprisonment recorded against the appellant under Article 3(2) of the Prohibition Order, 1979 is reduced from fifteen years' R.I. To that of ten years' R.I. The sentence of fine is also reduced from Rs, three lacs to that of Rs, one lac, in default whereof the appellant shall further undergo S.I. For two years. Benefit of section 382-B, Cr.P.C. Shall remain intact.
' With the above modification in the sentences of imprisonment as well as of fine, this appeal is hereby dismissed.