' MIAN SHAKIRULLAH JAN, C.J.--- A flying coach bearing Registration No,SBC-1238 coming from Topi was stopped by a police party headed by Muhammad Inaam Khan, A.S.H.O. Of P.S. Topi at Pehur Check Post for routine checking. Amongst the passengers, two persons with wooden box were found in suspicious condition. Both the passengers were deboarded and the wooden box was searched which resulted into recovery of Charas of ten packets of one Kg. Each, total weighing as ten Kgs. Accordingly, both the persons who disclosed their names as Khan Gul and Yousaf Shah were arrested for having committed an offence under section 9(c), CNSA, vide Murasila Exh.P.A./1 which was incorporated into F.I.R. Exh.P.A.
2. As both the accused, when charge-sheeted, refused to confess their guilt and claimed trial, therefore, to prove guilt of the accused, the prosecution examined as many as 9 witnesses in all.
P.W.1 Nausher Khan, S.H.O. P.S. Topi, submitted complete challan against the accused while P.W.2 Muhammad Wisal, A.S.-I., on receipt of Murasila Exh.P.A./1 incorporated the same into F.I.R. Exh.P.A.
And P.W.3 Niam Muhammad, Constable took the Murasila to P.S. For registration of formal case.
P.W.4 is Haider Gul, Conductor of the flying coach who has stated in his examination-in-chief that in his presence, nothing was recovered from the wooden box except a pair of clothes. As his deposition was contrary to his earlier statement recorded under section 164, Cr.P.C., the learned trial Judge declared him hostile on the request of the prosecution and allowed it to cross-examine him. In his cross-examination, he went on to say that neither the recovery of Charas of 10 Kgs. Was effected from the wooden box belonging to the accused nor he himself has seen the recovery of Charas. Muhammad Khalid Khan, Judicial Magistrate has been examined as P.W.5 who deposed regarding the recording of confessional statement of accused Yousaf Shah. P.W.6 Amir Sardar Khan, A.S.-I., produced both the accused before the Judicial Magistrate for recording their confessional statements. Muhammad Shuaib, Constable, was examined as P.W.7 who is marginal witness to the recovery memo. Exh.P.W.7/1 vide which the I.O. Took, into possession 10 packets of Charas allegedly recovered from the wooden box belonging to the accused. This witness in his cross-examination has stated that the wooden box was lying on the roof top of the vehicle and the accused admitted its ownership. Nausher Khan, S.H.O. Was re-examined as P.W.8 as earlier he was examined as P.W.1. This witness has submitted complete challan on completion of investigation against the accused. Last witness of the prosecution is Muhammad Inam Khan, S.-I., P.W.9 who is I.O. In the case and also effected recovery of Charas from the accused. This witness has stated that the wooden box containing ten packets of Charas of 10 Kgs in toto, was recovered from the possession of the accused. He has stated that from each packet, four grams was separated for chemical analysis and sent the same to the FSL and received its report Exh.P.Z. Which is in positive.
On the spot he prepared recovery memo. Exh.P.W.7/1 as well as the sit plan Exh.P.B., recorded statements of P.Ws. Under section 161, Cr . P. C . Apart.
3. On close of the prosecution evidence, both the accused were examined under section 342, Cr.P.C. Wherein they denied all the allegations but neither opted to produce defence evidence nor to be examined on oath. The learned trial Judge after examining evidence of the prosecution and hearing the learned counsel for the parties, held both the accused guilty of the commission of offence and convicted both of them under section 9(c), CNSA and sentenced them to undergo rigorous imprisonment for ten years each while fine was imposed on accused Khan Gul only to the extent of Rs, one lac or in default thereof, he was ordered to undergo further S.I. For six months, extending the benefit of section 382-B, Cr.P.C. To both the accused, vide judgment and order, dated 9-8-2003.
4. Convict Khan Gul has filed this appeal against his aforesaid conviction and sentence.
5. The learned counsel for the appellant has contended that there are contradictions in the statements of the prosecution witnesses qua the place of recovery of wooden box; that the solitary independent witness produced by the prosecution has not supported the prosecution version; that it is not proved that the wooden box belonged to which of the accused as admittedly four persons were sitting on the seat just behind the driver seat; that the persons who searched the accused/vehicle has not been examined by the prosecution which creates dents in the prosecution case and that the stuff was lying in the police station for seven long days before its dispatch to the FSL.
6. While on the contrary, the learned Deputy Advocate-General, representing the State, has submitted that the prosecution has proved its case against the accused and they have rightly been convicted and sentenced by the trial Court and prayed for dismissal of the appeal.
7. Though P.W.4 Haider Gul, is an independent witness being conductor of the vehicle from which the recovery of box has been effected but instead of supporting the prosecution evidence and giving a statement in line with his previous statement recorded under section 164, Cr.P.C., he has deviated from his previous stance and stated that the recovery of Charas was not effected from the box. This witness on the request of the prosecution was declared hostile and he was allowed to be cross-examined by the prosecution. This statement of the witness who has been declared hostile, is of no help to both the prosecution and the defence. However, if his statement is taken in juxtaposition to other evidence'on record, then it becomes clear that the recovery of the box has been effected from the flying coach which contained contraband Charas as alleged by the prosecution. Though there are some contradictions in the statements of the prosecution witnesses inter se yet if the evidence is taken as a whole, the exoneration of the accused is excluded and it can be concluded that the trial Court as rightly held the appellant guilty of the offence charged with and was rightly convicted. However, keeping in view the circumstances of the case and the evidence so led, the appellant deserves lenient view in the quantum of sentence.
8. Resultantly, this appeal is partially allowed and while maintaining conviction of the appellant, the sentence of imprisonment is reduced to one already undergone by him. Similarly, the fine of Rs,one lac imposed by the trial Court, is also reduced to Rs,10,000 or in default thereof to suffer three months' S.I.