1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Both the above appeals are directed against the judgment dated 5-7-2002, by the learned Special Court (C.N.S.), Karachi Division, in Special Case No.827 of 2000, F.I.R. No.5 of 1999, Police Station, A.N.F.-II, Karachi, whereby appellant Shakeel Ahmed Siddiqui and Imran Amin, have been convicted for the offence under section 6/9-C of C.N.S. Act, 1997, read with sections 14 and 15 of C.N.S. 1997 and have been sentenced to suffer imprisomnent for life and have been further sentenced to pay fine of Rs.1,00,000 each and in default to suffer R.I.
2. For six months more. Benefit of section 382-B, Cr.P.C. Has been extended to both the convicts/appellants.
3. ' Briefly stated the prosecution case is that on 24-4-1999, P.W., Mehmood Baig, Assistant Director, A.N.F.-II, received spy information that accused Syed Asif Ali Shah and Imran Amin alongwith the absconding accused Haji Ramzan and Haji Ahmed (now deceased), have supplied Charas to appellant Shakeel Ahmed Siddiqui, which was kept in his house in Federal B. Area. On receiving this information, P.W., Mehmood Baig, conducted raid at the house of accused Shakeel Ahmed Siddiqui, from where 602 kilograms of Charas was recovered in presence of P.Ws. Sub-Inspector, Khaliluddin and A.S.-I., Ghulam Murtaza. Convict Shakeel Ahmed, was arrested and the Charas was secured under Mashirnama which was attested by Sub-Inspector, Khaliluddin and A.S.-I., Ghulam Murtaza.
4. Samples were taken out and were sent to Chemical Examiner. The Chemical Examiner certified the same to be the Charas. Subsequently, confessional statement of convict Shakeel Ahmed was recorded, in which he implicated convict Imran Amin and acquitted accused Syed Asif Ali Shah, for having kept the Charas in his house without intimating that the packets contained Charas. On the basis of this statement convict Imran Amin and acquitted accused Syed Asif Ali Shah, were also arrested and sent up to face trial. All the three accused persons pleaded not guilty to the charge.
5. The prosecution examined P.W.1, Mehmood Baig, Exh. 10, P.W.2, Sub-Inspector Khaliluddin, Exh. 14 and P.W.3, Syeda Parveen Shah, Judicial Magistrate, Exh.
17. The statements of all the three accused were recorded under section 342, Cr.P.C. Convict Imran Amin and acquitted accused Syed Asif Ali Shah, stated that they were not connected with the Charas recovered from the possession of Shakeel Ahmed. Convict Shakeel Ahmed; admitted that the Charas was recovered from his house. He however, stated that he was not guilty as the recovered Charas was kept in his house by accused Imran Amin. He submitted that after 8 to 10 days, he felt smell of the Charas and informed Director A.N.F. His statement on oath was also recorded in which he stated that, although the Charas was recovered from his house but he was innocent as he never knew that the cartons kept by accused Imran Amin contained Charas.
6. ' The learned trial Court on the basis of above evidence held that no case was made out against the accused Syed Asif Ali Shah and acquitted him accordingly. He found the two appellants guilty of the charge and convicted them, awarding the sentences described above. Both the convicts preferred appeals, and at the request of appellant Shakeel Ahmed, the statement of Brigadier Mukhtar Ahmed, the then Director A.N.F., was directed to be recorded by way of additional evidence. His evidence was recorded and he stated that he does not remember if any such information was given to him by convict Shakeel Ahmed Siddiqui.
7. ' We have heard Mr. Chaudhry Abdul Rasheed, learned counsel for the appellant Shakeel Ahmed Siddiqui, Mr. Muhammad Farooq, learned counsel for the appellant Imran Amin and Mr. S. Mehmood Alam Rizvi, learned Special Prosecution, A . N. F .
8. At the very outset the learned Special Prosecutor, has stated that there is no evidence whatsoever, against convict/ appellant Imran Amin and consequently, the conviction and sentence awarded to him is not supported by him.
9. ' Mr. Ch. Abdul Racheed, learned counsel for the appellant Shakeel Ahmed, is not able to deny that the appellant has himself admitted the raid at his house and recovery of 602 Kgs. Of Charas from his house. His sole contention is that the appellant Shakeel Ahmed, was not aware if the cartons left by appellant Imran Amin, who was on friendly terms, contained Charas and therefore, a lenient view may be taken in respect of the sentence awarded. The learned Special Prosecutor, submitted that in the wake of admission by appellant Shakeel Ahmed, that the Charas was recovered from his house, the onus lay heavily on him to prove that it was kept in his house, in such a big quantity without his knowledge and consent. Appellant Shakeel Ahmed, has utterly failed to discharge the burden, with the result that the prosecution has brought home the guilt to appellant Shakeel Ahmed, up to the hilt. He has further submitted that under proviso to section 9-C of the C.N.S. Act, the minimum punishment provided is life imprisonment, if the quantity of the narcotic drug exceeds 10 Kgs. The punishment under section 9-C for commission of offence under sections 6, 7 and 8 of the C.N.S. Act, is death or imprisonment for life or imprisonment in terms which may extend to 14 years. He has submitted that the minimum punishment provided in law has been awarded which cannot be reduced further. Mr. Ch. Abdul Rasheed, learned counsel for the 'appellant Shakeel Aluned, is not able to rebut the contention.
10. In the above circumstances, it is held that the conviction and sentence awarded to appellant lmran Amin, is not sustainable, which is hereby set aside and accused/appellant Imran Amin, is acquitted of the charge. He is directed to be released forthwith if not required to be detained in any other case.
11. ' The appeal at his instance is allowed in the above terms.
12. ' The conviction and sentence awarded to appellant Shakeel Aluned Siddiqui, is not open to any exception, which is hereby upheld. The appeal at his instance stands dismissed. The benefit of section 382-B, Cr.P.C. Already granted to him, shall remain intact.
13. ' After hearing the learned Advocates for the parties in Court today, the appeals were disposed of by a short order. These are the detailed reasons in support thereof.