2004 PLP 1226 (YLR)

TARIQ PARVEZ, J.

On 5-12-1998 Shah Nawaz, Deputy Superintendent Customs (P.W.1) and the other customs staff on the basis of prior information that huge quantity of narcotic and arms ammunitions would be smuggled to down country, had held Nakabandi on G.T. Road near Khairabad when they spotted a motor car bearing green coloured number plate IDG-2904, two appellants namely Iqbal and Aurangzeb were found present sitting therein but the person driving the vehicle allegedly escaped. The vehicle was taken to the Customs Ware House where on search 229 K.G. of Chars, one K.G. Chars in powder form, 11-1/2 K.G. opium and 300 live rounds of .222 bore.

2. A case is registered against the two appellants and their absconding co-accused both under the Customs Act, CNS Act and Arms Ordinance.

3. They have been tried by learned Judge Special Court Nowshera and vide judgment dated 8-2-2003 each of them stands convicted to life imprisonment under section 9, C.N.S.A. with a fine of Rs. One million and under section 13, Arms Ordinance to three years R.I. and a fine of Rs.10,000 each.

4. Though the conviction has been recorded for 13 Arms Ordinance but it has been candidly conceded by learned Deputy Attorney-General that no charge was framed under section 13, Arms Ordinance, therefore, conviction and sentence recorded under section 13, Arms Ordinance are quashed and they are acquitted of this charge.

5. Learned counsel appearing for the appellants has argued that it is a case- of false implication of the two appellants and they have been substituted as against the real culprits and that two of them were in fact arrested from Al-Zar Hotel at Peshawar but because of their strained relations with the Customs Department they have been falsely roped in but no evidence in defence to this effect has been produced.

6. Learned counsel for the appellants further argued that P. W. 1, Shah Nawaz, is silent regarding taking of samples being sent to the laboratory for chemical analysis and so is the statement of P.W.4 namely, Muhammad Rohail, Constable alleged witness of the recovery memo. He has pointed out that according to one witness the vehicle was encircled before it was searched whereas according to the other witness they just signalled the vehicle which did not stop and in a chase the vehicle was apprehended. He submits that destruction certificate of the case property Exh.P.W.2/4 and Exh.P.W.2/3 are not admissible in evidence because under section 516-A, Cr.P.C. the certificate should have been issued by the Judge Special Court and neither the customs officials nor the Customs Judge could have issued the certificate. He submits that there is no evidence that any sample was separated from the powder Chars or from the opium.

7. Learned Deputy Attorney-General, however, argued that huge quantity of narcotic was recovered on the basis of spy information. The two appellants were found in the vehicle by independent official witnesses and that because of huge quantity vehicle was to be taken to the Customs Ware House where weighment of the narcotic was done and that destruction certificate at Sr. No.6 refers to the case property of the instant F.I.R. and because at that stage cognizance of the case had already been taken by the Customs Judge, therefore, he was competent to issue the destruction certificate.

8. After we have heard learned counsel from both sides and have gone through record of the case, we feel sorry to say that investigation in this case has been done in a very superficial manner without application of mind and without adhering to the law and the rules. May be it was because Customs staff has seized the narcotic and had investigated this case and they have no knowledge of investigating the case under the CNS Act. The evidence of the prosecution, in their examination-in chief except statement of P.W.3 Mir Salam, Inspector, is silent as to how samples were separated from the bulk of the narcotic recovered. To us it is not known that in what shape 229 K.G. of Charas was recovered, whether it was in slabs or was in some bag and if in bag whether it was one bag or more nor any bag has been produced at the trial which had contained the narcotic recovered.

9. In the whole evidence huge quantity of narcotic is alleged to have been recovered from the two appellants but because of deficiency in the investigation and in the manner they have investigated this case, this Court will only look into that quantity of narcotic recovered which stands proved to be the narcotic.

10. P.W. Hawas Khan who was custodian of the case property has categorically stated that before putting the narcotic to destruction he in compliance with section 516-A, Cr.P.C., had prepared two parcels and have taken samples Exh.P.1 and Exh.P.2 taking one K.G. of Charas and one K.G. opium respectively from whole lot. His such statement has gone unchallenged in the cross examination.

11. As there is no evidence that anybody has separated any sample either from the powder Charas or from the opium, therefore, we will confine ourselves to the report of the Chemical Examiner to the extent of Charas only.

12. In view of statement of Hawas Khan (P.W.2) who has separated one K.G. Charas Exh.P.1 and in view of statement of P.W.3 who has taken four grams of Charas from the whole lot and such samples were found to be Charas, the prosecution has proved the recovery of Charas to the extent of one K.G. and 4 grams and on the same yardstick the recovery of one K.G. of opium. The result of the above discussion would be that the conviction of the two appellants are maintained but for possessing opium weighing one K.G. as proved, they are convicted under section 9(b), C.N.S.A. and are sentenced to seven years' R.I. and a fine of Rs. one lac and in default of payment of fine to undergo further six months' R.I. each. For possessing more than one K.G Charas as proved they are convicted and sentenced under section 9(c), C.N.S.A. again to seven years' R.I. with a fine of Rs. One lac and in default of payment of fine to undergo further six months' R.I. each. Both the sentences shall run concurrently with benefit of section 382-B. Cr.P.C. With the above modification this appeal stands dismissed. H.B.T./27/P Order accordingly.