2009 PLP 65 (MLD)

MUHAMMAD ALAM KHAN, J.

Darwaish, appellant herein, through this appeal filed under section 410, Cr.P.C. read with section 48 of the Control of Narcotic Substances Act, 1997, has challenged the conviction and sentence recorded by the learned Additional Sessions Judge-V, D.I. Khan per her judgment, dated 1-2-2007 in case F.L.R. No.11, dated 21-1-2007 under section 9 C.N.S.A. 1997, registered at Police Station, Paroa, District D.I. Khan, whereby he has been convicted under section 9(c) thereof and sentenced to five years' R.I. with payment of fine amounting to Rs.10,000, in default to suffer ten months imprisonment. Benefit under section 382-B, Cr.P.C. was, however, extended to him.

2. The allegations against the convict/appellant contained in F.I.R. are that on 21-1-1997 at Remak Check Post on D.I. Khan-Multan Road. Salahuddin Khan S.H.O. of Police Station Paroa had made 'Naqabandi' for checking outlaws when a Bus No.LXP-5510 coming from Dera side was stopped for checking and the appellant found suspected was deboarded there which allegedly led to the recovery of opium weighing four kilograms from his waistcoat.

3. After completion of usual formalities, complete challan was put against the accused in Court for trial who was summoned but he did not plead guilt to the charge and claimed trial.

4. The prosecution, in order to prove its case against the accused, recorded statements of three witnesses whereafter statement of the accused under section 342, Cr.P.C. was recorded, but neither he produced any defence witness nor opted to be examined on oath in terms of section 340(2), Cr.P.C. The learned trial Court Judge, on weighing the materials brought on record found the accused guilty of the offence charged with and on conviction sentenced him as mentioned above. Hence this appeal.

5. Learned counsel for the appellant vehemently contended that the prosecution had not been able to prove its case against the appellant and the impugned judgment suffers from misreading and mis-appraisal of material evidence available on record. He argued that there is no independent evidence in the case despite' the availability of numerous persons/passengers in the Bus at the relevant time wherefrom he was allegedly deboarded and caught red handed along with the contraband opium. He argued that there are material contradictions in statements of the P.Ws. and the impugned conviction and sentence are not warranted in circumstances of the case. Learned counsel for the appellant lastly submitted that the quantum of sentence awarded by the learned trial Court is harsh and is liable to be reduced.

6. The learned Deputy Advocate-General representing the State defended the impugned judgment on the grounds that the appellant was caught. red handed and a huge quantity of contraband opium was recovered from his direct physical possession. He urged that the testimony of official witnesses cannot be doubted unless any animosity is attributed to any of them. Learned Deputy Advocate-General vehemently resisted the request of the learned counsel for the appellant for reduction of the sentence.

7. We have heard learned counsel for the parties and gone through the record of the case.

8. Admittedly, four kilograms opium was recovered from the waistcoat of the appellant when he was travelling towards Karachi in a passengers Bus. From the materials brought on record, the prosecution had duly proved its case against the appellant who has been rightly convicted and sentenced by the learned trial Judge. On perusal of the record we find that there is no evidence against the appellant to prove that he is either a drug trafficker, previous convict or previously involved in such like activities. Thus, his case can be considered for reduction of the sentence in view of the judgment handed down in the case of "Nazar Muhammad v. The State" reported in 1986 PCr.LJ 2065.

9. Consequently, we find no merit in this appeal which is hereby dismissed. However, the quantum of sentences seem to be harsh and needs to be reviewed. Therefore, while maintaining the conviction of the appellant, we reduce the sentence of imprisonment from five years to three years' R.I. and sentence of fine from Rs.10,000 to Rs.5000 in default to undergo three months simple imprisonment. The benefit under section 382-B, Cr.P.C. shall remain intact. Above are the reasons for our short order of even date. H.B.T./159/P Sentence reduced.