2013 PLP 894 (MLD)

KHALID MAHMOOD, J.

The appellants were tried, found guilty, convicted Gohar appellant under section 9(c) CNSA to 5 years' R.I. with a fine of Rs.10,000 or in default to suffer further two months S.I. Likewise Mst.Zarin Taja and Mst.Nasreen appellants were convicted under section 9(c) C.N.S.A. to 3 years' R.I. with a fine of Rs.10,000 or in default to suffer further two months S.I. each with benefit of section 382-B, Cr.P.C. by the learned ASJ-XIV/JSC Peshawar vide his order dated 21-11-2012. Hence this appeal challenging their conviction and sentences.

2. Learned counsel for the appellants argued that there are material contradictions in the statements of P.Ws., but these material discrepancies were not properly taken into consideration by the trial Court. P.W.1 stated that 3 police officials were present at the time of search of the appellants, whereas P.W. 4 stated that 8 police officials were accompanied them at the time of Naka Bandi. He further pointed out that P.W. 1 in his statement had categorically stated that P.W.4 after getting spy information had apprehended the accused, whereas P.W.4 in his statement has denied the factum of spy information. He specifically referred to the court observation who after desealing of the bags found that 20 packets were consisting of 4 small slabs and also the cloth bag was not recovered from the sealed bag, in which the Charas was allegedly recovered from underneath the seat of the Driver. Lastly he argued that the appellants have no previous history of involvement in such like offences, out of whom one accused is a lady aged about 60 years.

3. On the other hand learned counsel for the State vehemently argued that the appellants are directly charged and the contraband was recovered from the appellants, who had conscious knowledge of the recovered contraband. He also pointed out that no enmity or ill will has been proved due to which the appellants should have been enroped due to ulterior motive and the case being cooked one. He admitted that there is no previous history of the appellants being involved in such like cases. After arguing the case he half-heartedly agreed that if the punishment so awarded is reduced to the one already undergone.

4. The stance of the counsel for the appellants that four slabs which were found in each packet after desealing the bag by the court clearly suggests that the investigation was not carried out fairly and honestly and the case is cooked one and the other stance that the cloth bag in which the contraband was recovered from beneath the seat of Gohar appellant, who was driving the Car also suggests that the Charas was not recovered in the mode and manner as alleged by the prosecution. According to law the sample from each slab is required to be taken for onward obtaining the report from the FSL, but in the present case it has been shown that only 14 samples out of the packets, wherefrom the contraband was recovered were sent to the FSL. In the light of the observation of the court after desealing the bag from each packet four thinly slabs were recovered. Prosecution was obliged to have taken a sample from each slab recovered and should have been sent to FSL for its report. Hence in such affairs of the matter the number of samples should have been increased from 14 to 56 samples. However, if the samples which were taken from each slabs recovered from the bag is counted minus the remaining three slabs of the same packet, the weight of the contraband from one sample was sent to the Laboratory should been reduced to 3.666 K.Gs. as the I.O. has not obtained the opinion regarding the remaining three slabs of each packet.

5. Counsel for the appellant failed to substantiate his plea that the appellant have been enroped due to personal grudge of the complainant as the appellant Gohar has refused to take them to Telaband for attending marriage ceremony. This allegation does not appeal to reason that on mere refusing the demand of the complainant, the appellants were involved in the present case for arranging such a huge quantity and also enroping the female folk in the present case. It is admitted fact that the appellants have never been involved in such offences, the request of the appellants counsel for taking lenient view against the appellants is genuine and acceded to, keeping in view the contradictions regarding the recovery of contraband and sending only one sample out of four slabs separated from each packet warrants the reduction of sentence. It is also pertinent to note that one lady accused is about 60 years old and in the light of the above stated reasons the punishment served by them is sufficient to meet the ends of justice, which is hereby reduced to the sentence already undergone. With this modification the appeal stands disposed of and the appellants should be released forthwith if not required in any other case. HBT/111/P Sentence reduced.