NATHA KHAN and another vs THE STATE

' SYED MAHMOOD ALAM RIZVI, J.---This Criminal Appeal is directed against the judgment, dated 17- 12-2007 passed by the learned Special Judge for Narcotic Substances, Kambor Shandadkot in Special Case No,20/2005 in Crime No,4/2005 under section 6/9(c) CNS Act registered by the Excise Circle, Kamber whereby the appellants were convicted and sentenced to suffer imprisonment for life and to pay fine of Rs,1.00 million each, in default thereof they shall suffer R.I. For three years with benefit of section 382-B, Cr.P.C.

2. Precisely, the facts of, the prosecution case are that on 10-4-2005 the Excise Police on spy information, intercepted a car bearing No, 0852, Karachi. The Driver disclosed his name as Natha Khan and the other person disclosed/gave his name as Abdul Salam and after a search 18 bags were recovered from the concealed drawer of Digi containing heroin powder in plastic brown colour envelopes each bag weighing 1 kg. And the total heroin came to 18 kgs. From each bag 100 grams heroin powder were extracted in white paper and sealed separately for chemical examination, while 16.200 kgs. Heroin powder were also sealed separately. After the preparation of the memo. Of recovery and arrest, the accused/ appellants were arrested and subsequently an F.I.R. Was lodged, challan was submitted and charge was framed, to which the appellants pleaded 'not guilty'. The prosecution examined one mashir and the complainant and closed the side. The appellants recorded their statements under section 342, Cr.P.C. And denied the allegations levelled against them and claimed that they are innocent and have been falsely implicated in this case and the said narcotics have been planted upon them. Though the appellants have not recorded their statements on oath, they. Did produce one defence witness namely Muhammad Sukhyal, son of Muhammad Azeem and after the arguments, the learned trial Court was pleased to convict them through the impugned judgment.

3. The learned counsel for the appellants has contended that the contraband was recovered at a busy road, but no person from the locality having been joined in the recovery, therefore, the same was violative of section 103, Cr.P.C. He has further contended that the complainant himself conducted the investigation, which is illegal and further pointed out that though the prosecution has shown the contraband as 18 kgs., but in the charge the quantity has been shown as 1800 grams and further in the statements under section 342, Cr.P.C., of both the appellants the learned trial Court had formerly written 1800 grams and thereafter, it has been rectified by using a pen, but no initials have been made by the learned Presiding Officer, therefore, on the face of it the charge and the statements under section 342, Cr.P.C., are otherwise of the prosecution case. Hence both are defective, therefore, the appellants are entitled for acquittal. He has further pointed out the minor contradictions of the prosecution witnesses. The learned counsel for the appellants has further argued that the appellants were arrested from Larkana when they reached Larkana through bus. The appellant Abdul Salam accompanied by Natha Khan were seeking for a job and this contention has been supported by D.W.-1 Muhammad Sukhyal, who was a friend of the appellants.

In his presence, the Excise Police arrested the appellants and he approached the officials at Kamber and they demanded Rs,50,000 for their release. Nothing illegal was recovered from their possession in his presence.

4. Conversely, the learned counsel for the State has argued that the prosecution has proved the case beyond any reasonable doubt. The 18 samples of 100 grams each were separated from each bag and sent to Chemical Examiner and Chemical Examiner's report is positive. There are very minor contradictions, which are natural and section 103, Cr.P.C.Is not applicable in the C.N.S. Act.

There was no ill-will or mala fide on the part of the Excise Police to foist huge quantity of heroin upon the appellants.

5. That mentioning of 1800 grams heroin in charge and statements under section 342, Cr.P.C. Are the typographical error and even otherwise the same has been corrected in the statements under section 342, Cr.P.C. As word 'kg' has been written by pen by the learned Presiding Officer, but the learned trial Judge has over sighted to make, initials.

6. We have heard the learned counsel for the appellants and the learned counsel for the State and perused the record very carefully.

7. This is the case of huge quantity of heroin and there are only two punishments i.e, death or imprisonment for life and the learned Judge has taken the lenient view by awarding imprisonment for life, but in such cases the learned trial Judge has to be very careful in framing the charge, which is the gist of the prosecution's story and the learned Judge has to see the mashirnama of recovery and .Arrest, F.I.R. And challan and thereafter, he has to frame the charge by writing the brief facts of the case and as far as statement under section 342, Cr.P.C. Is concerned, whatever the prosecution witnesses have placed the evidence against the accused, the same has to be placed through a questionnaire before him, but admittedly as per above mistakes it shows that neither the learned trial Judge had seen the memo. Of recovery, F.I.R. And challan prior to framing the charge nor had he gone through the evidence recorded by the prosecution witnesses prior to preparing statements under section 342, Cr.P.C. The above illegalities cannot be cured under section 537, Cr.P.C. Therefore, in the interest of justice the best course is to remand the case to the trial Court for fresh adjudication from the stage of charge. We, therefore, set aside the impugned judgment and remand the case for fresh adjudication after framing the fresh charge. The learned trial Court is directed to conclude the case within 60 days on the priority basis and the prosecution and defence are also directed to appear. The monthly progress should be submitted through MIT of this Court.

8. In the above terms, the appeal is disposed of.