2015 PLP 424 (MLD)

AFTAB AHMED GORAR, J.

This criminal appeal has been directed against the judgment dated 9-6-2010, passed by learned Special Judge CNS, Kashmore @ Kandhkot, whereby the appellant was convicted for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced to suffer R.I. for life and to pay fine of Rs. 400,000 (Four hundred thousands); in case of default in payment of fine appellant was ordered to suffer S.I. for six months more. However, he was extended benefit of section 382-B, Cr.P.C. The appellant has assailed the impugned judgment through this appeal. The facts necessary for the disposal of the case are that on 2-7-2009, at 10-00 a.m. the appellant was found travelling on the roof of coach bearing Registration No.2825/Peshawar and was found in possession of two gunny bags containing treacle and on opening of the gunny bags these were found to be containing charas in shape of slabs and opium in packets, on weighing the charas became ten kilograms while the opium became three kilograms; out of charas 50 grams from each slab and 50 grams were taken out from opium for chemical analysis. The prosecution in order to establish its case examined two witnesses. The appellant in his statement recorded under section 342, Cr.P.C. denied the allegations by pleading his innocent. He however examined himself under section 340(2), Cr.P.C. to prove his defence, but not examined anybody in support of his defence. After conclusion of the trial the appellant was convicted and sentenced as stated above. To establish its case the prosecution examined complainant Assistant Excise and Taxation Officer at Ex.3, he produced mashirnama of arrest and recovery, F.I.R., and chemical report at Ex.3-A to 3-C. P.W.2 Excise Constable Sikander Ali was examined at Ex.4. We heave heard learned counsel for the appellant and learned A.P.G. and have gone through the entire evidence and the record. The latter supported the impugned judgment. Learned counsel for the appellant contended that, the alleged recovery of Charas and Opium was not effected from exclusive possession of the appellant. Per learned counsel prosecution case is that the charas and opium were lying on the roof of the bus and the appellant was available there. Learned counsel further contended that, neither driver nor conductor of the coach, nor anybody from the passengers travelling in the bus was examined by the prosecution to prove the recovery. It was further contended by the learned counsel that there are material contradictions in the evidence of the prosecution witnesses. Per learned counsel no entry of departure or arrival has been produced on record, to prove whether actually the excise police party left their office or not. Learned counsel further submitted that the prosecution has miserably failed to establish charge against the appellant and the appellant has succeeded to create doubt in the prosecution case, and if any doubt created; the benefit of the same is to be extended in favour of appellant. However, in the last learned counsel submitted that in case conviction of the appellant is maintained, the same may be reduced to that of already undergone, as according to him the appellant and his family members are extremely poor, and he is the only earning member of his family; during confinement of appellant in jail, his family members are on the brink of starvation. Learned counsel in support of his contentions relied upon case of Tariq Pervez v. The State (1995 SCMR 1345), Minhaj v. The State (2004 PCr.LJ 1992), Iqbal Khan v. The State (2012 PCr.LJ 1524) and Behram Khan v. The State (2013 YLR 1147). On the other hand learned A.P.G. submitted that the impugned judgment is well in law and well reasoned; he supported the impugned judgment. We with the assistance of learned counsel for the parties, have gone through the evidence adduced at the trial, though both the witnesses were cross-examined at length, but no material discrepancy is pointed out by the learned defence counsel. P.W.1 Assistant Excise and Taxation Officer fully supported the version of F.I.R and recovery of charas and opium from possession of the appellant. P.W.2 Excise Constable Sikander Ali corroborated the evidence of P.W.1 and though lengthy cross-examination was conducted at the trial, but no material contradiction is pointed out in the statements of both witnesses, so as to create a dent in the prosecution case. No enmity, ill-will or grudge has been alleged or proved against the prosecution witnesses to falsely implicate the appellant despite the lengthy cross-examination. The prosecution has been successful to bring home the guilt of the appellant to the hilt by placing ocular account, recovery of narcotic material, the chemical examiner's report. For the foregoing reasons we are of the view that the prosecution has succeeded to establish the guilt of the appellant by producing trustworthy evidence. The witnesses have deposed in line to support prosecution case and have passed test of lengthy cross-examination but the defence has failed to make any dent in the prosecution case or any material contradiction fatal to the prosecution case. Therefore, we see no merits in the appeal, which is dismissed accordingly. However, keeping in view the submissions of learned counsel that the appellant and his family are extremely poor persons and his family members are virtually starving, due to confinement of the appellant in jail, and as per jail-roll the appellant has served sentence of 14 years, 4 months and 4 days upto 22-2-2014, including remissions; coupled with the fact that the appellant is first offender and has no previous criminal record/history in his credit, therefore the sentence of life imprisonment is reduced to one already undergone and fine is also remitted. The appellant shall be set at liberty, if not required in any other case. HBT/N-13/Sindh Sentence reduced.