2007 PLP 408 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Mst. Noor Bibi appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 by the learned Sessions Judge/Judge Special Court, Nowshera vide judgment, dated 5-6-2006 in case F.I.R. No.50, dated 30-4-2005 registered at Police Station Railway Peshawar Cantt: and sentenced to four years' R.I. and a fine of Rs.30,000 or in default to undergo four months' S.-I. Benefit of section 382-B, Cr.P.C. was, however, extended to the convict.

2. Briefly stated that prosecution case is that on 30-4-2005 at about 8-45 a.m., S.-I. Munawar Khan, S.H.O. Police Station Railway Station, Peshawar Cantt, along with A.S.-I. Feroz Khan, H.C. Bakht Sher, Constable Shafiullah and Lady Constable Salma Bakht Lali, was checking the passengers in Awami Express bound for Karachi, when a woman passenger was found in the train having a child in her lap. She was wearing a jacket under the shirt. The search of the woman led to recovery of 7 packets of charas from the pocket of the jacket. She was got down from the Train at Nowshera Railway Station and the said jacket containing charas was taken into possession by the Lady Constable. The charas was weighed and found 6900 grams. The Charas was in the shape of 92 slabs. From all these slabs a meagre quantity i.e. 60 grams was separated and sent to the Laboratory for analysis. The remaining charas was sealed into a parcel. A railway ticket and cash amount of Rs.150 was also secured from the possession of the accused. The accused was arrested and a case was registered against her vide F.I.R. No.50, dated 30-5-2005 under section 9(c) of the Control of Narcotic Substances Act, 1997.

3. After complying the legal formalities, the Investigating Officer submitted the challan before the trial Court, where prosecution produced three witnesses namely HC Muhammad Shafiq, S.-I., Munawar Khan and Lady Constable Salma Bakht Lali.

4. The accused in her statement under section 342, Cr.PC.. admitted her presence in the train, the recovery of Ticket and cash amount of Rs. 150 from her possession but denied the recovery of the Charas. She neither opted to appear as her own witness under section 340(2), Cr.P.C. nor produced any defence evidence.

5. The learned trial Court after appraisal of the evidence available on record, convicted and sentenced the appellant as mentioned and noted above.

6. Mr. Javed A. Khan Advocate, counsel for the appellant contended that the prosecution has miserably failed to bring home the charge against the appellant; that the statements of the P.Ws. are contradictory inter se and highly doubtful; that the mode of the recovery as shown by the prosecution specially the alleged apprehension of the appellant in railway compartment, without association of any public witnesses is also not beyond doubt; that mandatory provisions of section 103, Cr.P.C. have been flagrantly violated and that the case of the prosecution is not corroborated by independent and impartial evidence and thus the impugned judgment and sentence is not sustainable in the eyes of law. In support of the contentions, reliance was placed on "Tariq Parvez. v. The State" (1995 SCMR 1345).

7. Mr. Salahuddin Khan, learned Deputy Attorney General for the State refuted the arguments of the learned counsel for the appellant and supporting the judgment of the trial Court, submitted that prosecution has proved its case beyond any shadow of doubt and the impugned judgment of conviction does not suffer from any infirmity or irregularity to vitiate the trial. The learned counsel reiterated that recovery of huge quantity of Charas was proved by the prosecution witnesses, statements of whom could not be shattered by the defence in spite of lengthy and-searching cross-examination. Denying the contradictions/discrepancies between the statements of P.Ws., it was maintained that there is no such material contradiction, on the basis of which trial of the case can be said to have been vitiated.

8. We have heard at length, the arguments and submissions of learned counsel for the parties in the light of the material on file.

9. The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband Charas from her possession has produced S.-I. Munawar Khan (P.W.2) and Lady Constable Salma Bakht Lali (P.W.3) and the positive report Exh.PC/5 of the Chemical Examiner. Both these witnesses have supported the recovery of 6900 grams of Charas from the possession of the appellant. Both the witnesses have demonstrated complete unanimity on material paints and the appellant has failed to point out any discrepancy in their statements. Contradictions highlighted by the learned counsel for the appellant are minor in nature, on the basis of which it cannot be held that the trial of the case stood vitiated. It is true that prosecution witnesses are officials of police but it is equally true that they have no reason or motivation to falsely implicate the appellant. The learned counsel for the appellant has not urged any rancour or animosity against these witnesses with the appellant. They have made consistent statements on material points and the appellant has failed to point out any discrepancy in their statements.

10. Though the learned counsel for the appellant has argued that Investigating Officer has not prepared the site-plan, but non-preparation of the site-plan cannot affect the prosecution case. The Investigating Officer has not prepared the site-plan because the train was in running condition when the Charas was recovered. Moreover, from Exh.D-1 the case of the prosecution is proved beyond any reasonable doubt. The samples of Charas were sent to the Office of Chief Chemical Examiner, Government of Punjab, Lahore and the report Exh.PC/5 is in favour of the prosecution. From this report, it is proved that the material recovered from the possession of the appellant was Charas.

11. As far as violation of section 103, Cr.P.C. is concerned, section 25 of the Control of Narcotic Substances Act, 1997 excluded the application of this provision of Cr.P.C. Section 25 of the Act ibid is couched and is with the object that provision of section 103, Cr.P.C. need not be followed under the Act. In this regard reference can be made to Muhammad Amin v. State (1999 SCMR 1367) and Mian Gul Bacha Khan and another v. The State (PLD 2004 Peshawar 246).

12. In case of narcotics where prosecution is made under the Control of Narcotic Substances Act, 1997, section 29 of the Act (ibid) has provided that there is presumption of possession of illicit articles unless the person prosecuted rebuts such presumption.

13. The conclusion drawn and reasons advanced by the trial Court show fair evaluation of evidence which is in accordance with settled principles of criminal justice. We find no illegality or infirmity in the impugned judgment. Resultantly we arc upholding the order of conviction and keeping in view the circumstances of the case, we are reducing the sentence of four years' R.I. to three years' R.I. and also reduce the sentence of fine from Rs.30,000 to Rs.20,000 or in lieu thereof to suffer further three months' S.-I. The appeal is dismissed accordingly. H.B.T.16/P Order accordingly.