2012 PLP 250 (MLD)

WAQAR AHMAD SETH, J.

The appellant was tried by learned District and Sessions Judge, Swabi in case F.I.R. No.963 dated 3-8-2010 registered for offence under section 9(c) C.N.S.A. and after having been found guilty vide judgment dated 13-7-2011 was convicted and sentenced to five years' R.I. with a fine of Rs.50,000 or in default to undergo one months' S.I., however, benefit of section 382-B, Cr.P.C. was extended to him.

2. The prosecution story as narrated in the F.I.R. is that on 3-8-2010 at the relevant time the local police of Police Station Kalu Khan received information regarding presence of appellant, a proclaimed offender, in case F.I.R. No.1314 dated 19-12-2009 under section 9 C.N.S.A. P.S. Kalu Khan, at Naranji Khwar, hence believing the same to be true, they attracted to the spot where the appellant was found present, who was arrested and on his search four packets of chars and .30 bore pistol with four chargers containing 22 cartridges without licence were recovered. On weighment, each packet came out to be 1 KG (total 4 KGs). From each packet 5/5 grams were separated and sent to FSL while rest of the bulk was sealed into parcel No.5, hence the case was registered against the appellant.

3. After completion of investigation, complete challan was put in court against the appellant and provisions of section 265-C, Cr.P.C. were complied with. The appellant was formally charged, to which he did not plead guilty and claimed trial.

4. The prosecution in support of its case produced as many as five P.Ws. Hussan Badshah Khan, SHO appeared as P.W.1, who upon receipt of murasila, incorporated the contents into F.I.R., which is Exh.PA. P.W.2 is Izhar Shah Khan, S.H.O., who submitted challan in the court against the appellant for trial. Manir Khan, S.I. appeared as P.W.3, who after receipt of F.I.R. proceeded to the spot and prepared site plan Exh.PB at the instance of complainant and eye-witnesses. He recorded the statements of P.Ws., applied for custody of the appellant vide application Exh.P.W.3/1, which was granted for one day. He also interrogated the appellant and recorded his statement under section 161 Cr.P.C. and after expiry of one day custody he produced him before the court for recording his confessional statement but the accused refused, hence was sent to judicial lock up. He received the FSL report Ex.PZ, which is in positive. Zahid Ali, A.S.-I. appeared as P.W.4, who has accompanied the S.H.O. Izhar Shah Khan, Safdar Khan A.S.-I. and other police officials in the raid conducted upon the appellant. P.W.5 is Gohar Taj Khan, S.I., who recovered the contraband chars, a .30 bore pistol with charger and cartridges.

5. After close of prosecution evidence, the appellant was examined under section 342, Cr.P.C. but he opted neither to produce evidence in his defence nor wished to be examined on oath. On conclusion of trial, the appellant was convicted and sentenced as mentioned above, hence necessitated the filing of instant appeal.

6. Learned counsel for appellant contended that there is no evidence connecting the appellant with the alleged crime but the learned trial court has wrongly enroped him with the same; that no independent witness has been associated with the search and recovery proceedings as required in section 103, Cr.P.C., therefore, the exercise carried out by police is doubtful benefit whereof must go to the appellant; that there are overwriting rather diminished quantity has been shown in the foot of the F.I.R. and in the recovery memo, which makes the case doubtful.

7. Learned State counsel contended that the recovery of 4 kgs. of chars has been effected from personal possession of the appellant for which he has tendered no plausible explanation and that the appellant is a habitual offender as he is previously involved in such like offence and case F.I.R. No.1314 dated 19-12-2009 has been registered against him; that the P.Ws. have been consistent on each and every aspect of the matter, which could not be shattered despite lengthy and taxing cross-examination, hence the appellant was rightly convicted and sentenced. Arguments heard. Record perused.

8. The record reveals that the appellant was apprehended on the spot having in his possession 4 kgs. of charas and report received from the F.S.L. regarding the same, which is in positive. The learned trial court observed that the appellant has also been involved in such like crime through F.I.R. No.1314 dated 19-12-2009 under the same section of law but the accused claimed to have been acquitted in that case. There was overwriting regarding the weight of contraband chars but that has been corrected subsequently. To substantiate its case, the prosecution produced 5 P.Ws. in all. Their testimony could not be shattered despite lengthy and taxing cross-examination. They were consistent on each and every aspect of the matter but nothing has been brought from their mouth, which could favour the appellant, hence the conviction recorded by learned trial court is in accordance with law and material available on record, thus the same is maintained.

9. However, the quantum of sentence requires consideration. The appellant claims that no private witness has been associated with the search and recovery proceedings. Moreover, the prosecution did not explain as to where the contraband material remained from 3-8-2010 to 4-10-2010 and the unexplained delay in sending the material to chemical examiner had cast a doubt on the prosecution case, therefore, the entire exercise carried out is doubtful. The provision of section 103, Cr.P.C. is mandatory, which has not been complied with by the police. Similarly, there are some other minor contradictions in the statements of P.Ws. benefit whereof must go to the appellant. The appellant is stated to have been acquitted in the earlier case as mentioned above, therefore, case for reduction of sentence has been made out. In view of the above, while maintaining the conviction, this appeal is partially allowed. The sentence of five years' R.I. is reduced to 2 years R.I. and similarly the fine amount of Rs.50,000 is also reduced to 25,

000. Benefit of section 382-B, Cr.P.C. extended by learned trial Court shall remain intact. H.B.T./382/P Sentence reduced.