' IJAZ AHMAD CHAUDHARY, J.---We intend to dispose of Criminal Appeal No,19-J of 1998 and Reference under section 374, Cr.P.C. For confirmation of death sentence of Muhammad Sharif Shah appellant in the titled criminal appeal through this judgment as both the appeal and the reference are arising out of impugned judgment dated 5-6-1997 passed by Special Judge/Sessions Judge Gujrat whereby the appellant was held guilty under section 9-C of Control of Narcotic Substances, Ordinance, 1995 and sentenced to death with a fine of Rs,3 lac in default whereof to undergo six years, rigorous imprisonment in case F.I.R. No,159 registered on 2-6-1995 at Police Station Sadar Gujrat. However, Safdar co-accused was acquitted by extending the benefit of doubt in his favour.
' Brief facts are that on 2-6-1995 at 1-00 a.m. Muhammad Islam S.I/S.H.O Police Station Sadar Gujrat along with other members of the raiding party were present in connection with patrol duty at National Furniture, G.T.Road. Faiz Ahmad S.I, Muhammad Ajmal, Mukhtar Ahmad and Bashir,'
Constables were directed to put `Islaaka' at Dinga Road. The other members of the police party including the police party were present at Deona Mandi in front of Akhtar Hotel, where a wireless message was received from Faiz Ahmad S.I. That a special Army Truck was being chased, so they should reach there, Muhammad Islam complainant alongwith other members of the police party reached the graveyard of Dhool Khurd at Dinga Road. Faiz Ahmad S.I etc encircled the Army Truck No,843769. The driver after getting down tried to run' away, who was overpowered and his name was subsequently disclosed by him as Sharif Shah appellant/convict.
2. On search of the Truck, 70 flour bags were found and under them, there were 199 bags of Charas, which were recovered. Each bag contained 22 K.Gs of Charas. Two army uniforms - were also recovered from the Truck and from the Dash Board a copy of Builty in the name of Ghausla Goods, Gujrat was taken into possession. The Illaqa Magistrate was informed and he came to the spot. Out of total recovered substance one bag of charas was sent to Chemical Examiner. Case was originally registered under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order IV of 1979, on the statement of Muhammad Islam S.I, P.W.7. On the basis of complaint Exh.P.A F.I.R. Exh..P.A/1, was registered. It has been mentioned that some information was received a month ago by the S.S.P, Gujrat that an organized gang from Khyber Agency was doing business of narcotics at large scale in Punjab and gang has shifted the narcotics through an Army Truck. The members of the gang wore the Army Uniform and G.T.Road was being used for this purpose. The narcotics was reportedly sent to different Districts of Punjab. Due to this reason a raiding party had a suspicious and after the receipt, of the information recovered the above-said charas weighing 4378 K.g.
3. During the investigation a Major (Retd.) Safdar Ali was also arrested in this case who before the arrival of the Truck passed through the `Naaka' and then returned back thus he was found involved in this business alongwith the appellant as he wanted to provide a protection by informing the Truck Driver in order to avoid his apprehension by the police or any other agency.
4. After the completion of the investigation the challan was submitted in the Court of learned Special Judge/Sessions Judge, Gujrat. The charge under section 9-C of the Control of Narcotic Substances Ordinance, 1995 was framed against the appellant and Major (Retd.) Safdar Ali which was denied by them and they claimed to be tried. The prosecution in order to prove the guilt of the appellant and his co-accused produced 8 witnesses. Muhammad Siddique A.S.I, P.W.1 kept the case property of this case in the Mal-Khana for its onward delivery to the office of Chemical Examiner, Lahore which he delivered there on the same day intact.
While P.W.2 Karam Dad has stated that Safdar Ali acquitted accused came to him and told him that police had apprehended one Army Truck at Dinga Road and he disclosed that there was charas in the Truck and the police suspected him as one of the culprits. P.W.3 Muhammad Ashraf A.S.I recorded the formal F.I.R. Exh.P.A/1 and handed over the sealed parcel of charas to Muhammad Siddique A.S.I for its onward transmission to the office of the Chemical Examiner. Faiz Ahmad S.I, P.W.4 was a member of the raiding party and on 12-30 at mid-night saw that an Army Truck had reached there. He, signalled the Truck to hault but the driver raised its speed on which the police party chased and near the graveyard it. Was hauled up and the driver .Was owner powered. Then a wireless, message was passed over to the S.H.O; who with Constables a Magistrate also came at the spot. The appellant was apprehended who was driving the Truck at that time and charas was recovered. P.W.5 Muhammad 'Ajmal constable has supported the version given by P.W.4 regarding the apprehension .Of the appellant and recovery of the charas from the Truck. P.W.6 Ijaz Ahmad A.S.I.Has also supported the P.W.4 on all the material points. P.W.7 Muhammad Islam S.I/S.H.0 is the complainant in this case and had conducted the investigation P.W.8 Liaqat All Chatta, Magistrate, Sargodlia also supported his arrival at the spot and in his presence charas and other articles were taken into possession. The report of the Chemical Ex'aminer was tendered in evidence as Exh.P.G and the prosecution evidence was closed. After the close of prosecution evidence the appellant in his statement under section 342, Cr.P.C. Denied the allegations and the recovery of the charas from the Truck being driven by him and on a question that why the case against him and the P.W. Had deposed against him, he made the following reply:- ' I reside in Peshawar. I deal in sale and purchase of sheep and goats. In this connection Sadiq and Riaz of Shahabdiwal and Dhero Kunna were known to me, and they were on friendly terms with me.
They also deal with the sale and purchase of goats and sheep. On the next day of occurrence, I was available at Shahabdiwal. It was a common talk that a Truck is standing in the graveyard without any driver. The people of Shahabdiwal informed Incharge P.P Rehmania. I was also with aforesaid Sadiq and Riaz. In charge P.P. Rehmania Faiz Ahmad S.I arrested me without any sufficient reasons. The aforementioned Sadiq and Riaz alongwith others protested and stated before the said S.I that I am their guest and moreover, have no connection whatsoever, with this suspected Truck, but even then, Faiz Ahmad S.I arrested me in this false case. As all the P.Ws. Are police officials, they have deposed against me just to corroborate Faiz. Ahmad S.I, perhaps this is the reason that the police has not tried to join any witness from public."
' He produced Muhammad Sadiq as D.W-I to support his defence plea that he was not driving the Truck and had been wrongly arrested. Nazir Ahmad D.S.P has appeared as C.W.1 who had conducted the inquiry against the police officials as 18 bags of charas were misappropriated by some of the police officials from the Mal-Khana who were, held guilty and some police officials were dismissed from service. After the close of the evidence of both the parties learned trial Judge while hearing both the parties has passed the impugned judgment which is assailed through this appeal and reference for confirmation of the sentence.
5. Learned counsel for the appellant contends that the story submitted by the police on the face of it is false as it is not possible that the petitioner when was apprehended was in Army uniform and was apprehended from the spot as a Driver of the Truck. It is contended by the learned counsel for the appellant that Faiz Ahmad S.I/P.W.4 has admitted that he arrested $harif Shah appellant from a distance of about 10 yards .From the Truck towards its north/east side. It is further contended that he admitted that it was a dark night and there were trees near the Truck, thus possibility of false implication of the appellant in such circumstances cannot be ruled out. It is argued as the appellant has been arrested by Faiz Ahmad P.W.4 from a distance of 10 yards from the Truck and not while he was on the driving seat of the Truck and since it was dark night possibility cannot be ruled out that the real culprit had run away and appellant has been made scapegoat by the police as huge quantity of charas was recovered from Truck. It is further contended that the appellant has explained the reason of his apprehension, in his statement before the learned trial Court while answering to a question in his statement under section 342, Cr.P.C. Which is more plausible and trust worthy. It is further contended that though the Magistrate came at the spot after the receipt of the wireless message and the recovery was effected in his presence but the appellant was not apprehended in the presence of the Magistrate and only evidence against the appellant is statements of P.W.4 and 5 who are police officials and the stand taken by the appellant about making him as scapegoat cannot be ruled out. It is further contended that only one bag of the charas was sent to the office of the Chemical Examiner. Thus it cannot be held that the total bags numbering 199 contained charas. It is further contended that at the most appellant can be termed as Carrier but the real culprit Major Safdar has been acquitted and the other real culprit had not been arrested or joined in the investigation by the police party whereas appellant had been implicated with mala fide intention and ulterior motive to cover up the recoveries in the prosecution case and to save the skin of the police officials as the real culprit had succeeded in fleeing. It is further contended that the Investigating Officer is the complainant and it has caused serious prejudice to the case of the appellant. It is further contended that nobody from the public was joined at the time of effecting the recovery though number of persons were present at the time of recovery near the graveyard and -it casts serious doubt in the prosecution case.
6. On the other hand, learned State counsel has opposed this appeal on the ground that the prosecution has stood on its own legs and has produced sufficient evidence to connect the appellant with the commission of the crime, that police witnesses had no enmity or grudge or motive to falsely implicate the appellant in this case, that huge quantity of charas had been recovered from the Truck which was being driven by the appellant, who does not deserve any leniency; and that learned trial Court has rightly convicted and sentenced him to death on the basis of the evidence on record. It is further contended that there is no weight in the arguments of the learned counsel for the appellant as the Magistrate has also witnessed the recovery who immediately reached the spot and 199 bags of charas were recovered in his presence. It is further contended that the apprehension of the appellant at the spot is a strong proof supported by the other evidence hence the appeal is liable to be dismissed.
7. We have heard the learned counsel for the parties and also perused the record carefully. Faiz Ahmad S.I, P.W.4 saw the Truck when he along with other police officials was present on `Naaka' at Dinga Road at about 1/-30 mid-night. They signalled the Truck to halt but the driver raised its speed on which the police party chased the Truck and near the graveyard the Truck was hauled up. The Driver tried to runaway but he was overpowered and apprehended at the spot. The driver of the Truck disclosed his name as Sharif Shah who is present appellant. P.W.4 on wireless informed about the apprehension of the driver and the stoppage of the Truck to Muhammad Islam S.I/S.11.0 and to the Illaqa Magistrate. Both of them rushed to the spot. Truck was searched and 199 bags or charas containing 22 K.Gs, from each bag were recovered in the presence of the Magistrate and the other police officials. The total weight of the charas recovered was 4.378 K.g along with two uniform of the Armymen and the built from the dash board. This statement has been fully supported by Ijaz Ahmad A.S.I who was also member of the raiding party.' Similar statement has been. Given by Muhammad Islam S.I complainant of this case. Liaqat Ali M.I.0 Sargodha has also as appeared as P.W.8 and- deposed that he had received a wireless message and in his presence 79 flour bags were recovered from the Truck along with 199 bags containing charas which were in the Army Truck. According to .This witness each bag contained 22 K.Gs of charas. The bags were sealed and taken into possession, but -one bag was separated while 198 bags along with Army personnel uniform were also taken into the possession separately. We have gone through the evidence including statements of these witnesses minutely. No material discrepancies or contradictions are found in the statements of these witnesses. Rather they are consistent regarding the time and place of occurrence and the recovery of the articles and the manner in which it has been effected. Though all these witnesses were subjected to lengthy cross- examination but nothing could be gained by the defence to discard their statements. We are convinced after the perusal of statements of these witnesses that an Army Truck bearing No,843769 was stopped by Faiz Ahmad S.I/P.W.4 whose speed was raised which was chased and was hauled up near the graveyard and huge quantity of charas was recovered out of it. The appellant Muhammad Sharif was apprehended when he tried to run away from the Truck by P.W.4/Faiz Ahmad with the .Help of other police officials. He was arrested at the spot and his arrest had been shown in the relevant record immediately.. We are convinced that the appellant was driving the Truck from which the ,huge quantity of narcotics has- been recovered. The defence has failed to shatter the prosecution evidence produced to connect the appellant with the commission of the crime. The apprehension of the appellant at the spot immediately has been sufficiently supported by the evidence on the record and even apprehension from the spot is also admitted by the appellant in his statement recorded under section 342, Cr.P.C. The explanation given by him for his apprehension at the spot is not at all plausible. No weight can be. Given. He has failed to explain his presence at the spot. No doubt the defence has miserably failed to prove the defence plea but true this alone cannot be made basis for the conviction of an accused in a criminal case. On the other hand the prosecution has succeeded in proving the case against the appellant . That he was driving the Truck wherefrom huge quantity of charas was recovered and he was apprehended at the spot. Arguments of the learned counsel for the appellant that the complainant is the Investigating Officer and the witnesses from public were not joined in the investigation at the time of recovery of the charas are not sufficient, for the acquittal of the appellant as 11 the police officials produced by the prosecution during the trial were present at the time of raid at the 'Naaka' and subsequently reached the place of recovery. Not a single witness was previously known to the appellant or had any enmity or grudge to falsely implicate him in this case. No prejudice is even .
Alleged to have been caused to the appellant by the investigation of the case' by a Sub-Inspector.
The recovery has been effected in the presence of the Magistrate Liaqat Ali Chatta P.W.B. The non- association of the witnesses from the public alone is not sufficient to affect the prosecution case as it is tendency that people from public are reluctant to Come witnesses specially in narcotics cases to save their life from the -dangerous accused persons involved in narcotics. We are of the view that the conviction and impugned judgment is based on the evidence on the record and is sustainable in the eyes of law.
8. However, we have considered the arguments of the learned counsel for the appellant that the appellant was being used as Carrier and the police has failed to investigate as to wherefrom the charas was being smuggled and also to trace out the real culprits who were using the appellant as a driver of the I ruck for the transportation of such a huge quantity of charas. In such circumstance, the appellant only who seems to be a Carrier and is first offender being not previously involved such type of criminal cases, his sentence of death is harsh. Due to the above said reasons and after considering all the aspects of the case we are of opinion that in the circumstances of the case sentence of life imprisonment will meet the ends of justice.
9. In view of the above discussion, the conviction recorded by the learned trial Court through the impugned judgment is maintained but the sentence of death is converted to life imprisonment and sentence of fine is also reduced to Rs,1 lac, in default of payment whereof to further undergo two years' S.I. Death sentence is not confirmed and reference is replied in negative. However, benefit of section 382B, Cr.P.C. Is given to the appellant.
' Subject to the above modification in the quantum of sentence and fine appeal fails. Copy of this judgment shall be sent to the learned trial Court for implementation.
Sentence reduced.