ljaz-ul-Hassan, J.--This judgment will dispose of Jail Criminal Appeal No, 31 of 2003 directed against the judgment dated 8.1.2003 passed by learned Sessions Judge/Judge Special Court, Nowshera, whereby appellants Aqal Khan and Bashah Khel sons of Bahadur Khan, resident of Bara Khyber Agency were convicted under Section 9 of the Control of Narcotic Substance Act, 1997 and sentenced to life imprisonment and a fine of Rupees. One million each or in default whereof to suffer additional imprisonment for five years. Benefit of Section 382-B, Cr.P.C. was also extended to them.
2. Prosecution story in brief is that on receipt of spy information on 19.12.1998 by Deputy Director Customs Intelligence Peshawar that on the said date huge quantity of opium and charas would be smuggled in vehicle No, PRK-6137 from Afghanistan to the Down Country, a raiding party was constituted and `nakabandi' was conducted at G.T. Road near Khair Abad bridge. At about 12.30 of the night the aforesaid vehicle was sighted coming from Nowshera side. The vehicle was stopped.
On inquiry the occupants of the vehicle disclosed their names as Aqal Khan (driver) and Badshah Khel. The stated that they are police officials and are on duty to execute warrants of arrest. The search of the vehicle led to recovery of charas and opium weighing 280 kilograms and 78 kilograms respectively from its secret cavities. A shotgun repeater (country made) was also recovered from the vehicle. A meager quantity i,e, 10 grams each was separated from the bulk of the contraband narcotics and sealed in parcels for chemical examination. The occupants of the car were arrested and a case was registered against them under Sections 6, 7, 8, 9 of Control of Narcotics Substance Act, 1997 read with Section 156(1)(89) 157, 178, 2(s) of Customs Act, 1969. After usual investigation accused appellants were challenged to the Court of Sessions Judge/Judge Special Court, Nowshera. Charge was framed against the accused-appellants to which they pleaded not guilty and claimed trial.
3. In order to prove its case prosecution examined four witnesses namely Inspector Hawas Khan (P.W. 1), Intelligence Officer Abdul Latif (P.W. 2), Intelligence Officer Mahboobul Arifeen (PW. 3) and Hawaldar Qazi Abdul Qayum (PW. 4). The accused appellants in their statements recorded under Section 342 Cr.P.C. denied the prosecution allegations and claimed to have been implicated falsely and substituted for real culprits. They stated that in fact they were on their way to Lahore in a Road Liner Bus. Near Attack Bridge they deboarded from bus for urination. They were apprehended by the Customs Authorities and on the following morning they came to know that they have been involved in this case. They did not appear in their defence as envisaged by Section 340(2) Cr.P.C. neither led any defence.
4. The learned trial Judge after having gone through the material available on the file in the light of the arguments addressed before him by learned counsel for the parties, passed the impugned judgment in terms as stated above, holding that prosecution has succeeded to establish its case beyond shadow of reasonable doubt and noor motive has been shown on the part of the Customs Authorities for falsely implicating the accused persons in this case.
5. Learned counsel for the appellants Mr. Noor Alam Khan Advocate bitterly assailed the impugned conviction and sentence of the appellants and submitted that the prosecution has not been able to prove its case against the appellants and for' that matter the impugned judgment of the learned trial Judge is erroneous and is the outcome of misreading and mis-appreciation of the evidence. The learned counsel also disputed the validity of recovery memo on account of non- observance of the mandatory provisions of Section 103 Cr.P.C. and submitted that recovery has not been proved satisfactorily.
6. Mr. Hamid Farooq Durrani, learned Deputy Attorney General on the contrary, supported the impugned judgment and contended that prosecution has brought sufficient material on record to connect the appellants with the commission of crime and thus the appeal merits dismissal.
7. Having heard the arguments and submissions of learned counsel for the parties in the light of the material on the file, we find that prosecution has succeeded in establishing connection between the appellants and the contraband charas and opium. No doubt it is true that huge quantity of narcotic is alleged to have been recovered from the appellants but because of deficiency and lapses in the investigation and other circumstances, this Court will only look into that quantity of narcotic recovered which stands proved to be the narcotic. To ascertain this fact statement of Intelligence Officer Mahboobul Arifeen (PW. 3) one of the members of the raiding party is of utmost significance. He has clearly stated that on search of the vehicle 280 packets of charas and 78 packets of opium were recovered from its secret cavities. On weighment the same were found 280. kilograms and 78 kilograms respectively. He separated three samples of charas, 10 grams each and also three samples of opium 10 grams each. All the samples were sealed in separate parcels for laboratory analysis. It is in his cross-examination that weight of the packet was one kilogram. He obtained three samples from only one packet/bag of charas and opium respectively. It has come in the cross-examination of Hawaldar Abdul Qayum (PW: 4) that three samples of one gram each were taken from different slabs. From every packet a little quantity was taken/separated and three samples of 10 grams each were prepared.
8. A perusal of the record would reveal that one kilogram charas and one kilogram opium were produced before trial Court though 280 packets of charas one kilogram each and 78 packets of opium one kilogram each are alleged to have been recovered. The samples were 10 grams each.
According to report of the Chemical Examiner F.S.L. Peshawar three samples (10 grams each) were sent for analysis. There were charas in two samples and opium in one sample. The culpability of the appellants can therefore only be regarding one packet, from which the samples were taken.
This would bring the case against the appellants under Section 9(b) CNSA which provides for 7 years imprisonment and fine if the narcotics drug does not exceed one kilogram.
9. Pursuant to the above the conviction of the appellants are I maintained but for possessing opium weighing one kilogram as provided, C they are convicted under Section 9(b) of the Control of Narcotic Substance Act, 1997 and are sentenced to suffer 7 years R.I. and a fine of Rs, 100,000/- and in default of payment of fine to undergo further six months R.I. each. For possessing more than one kilogram charas as proved they are also convicted and sentenced under Section 9(c) of the Act ibid again to 7 years R.I. and a fine of Rs, 100,000/- and in default of payment of fine to undergo further six months R.I. each. Both the sentences shall run concurrently. Benefit of Section 382-B, Cr.P.C. shall also be extended in favour of the appellants. With this modification, the appeal stands dismissed.