2012 PLP 1064 (YLR)

DOST MUHAMMAD KHAN, J.

This single judgment shall also decide Criminal Appeal No.452 of 2010 because both the appeals have arisen out of a common judgment and from the same F.I.R. and because questions of facts and law in both are identical.

2. Arguments heard and record perused.

3. On a tip-off that narcotics would be smuggled from the Tribal Area to the down country, S.I. Mumtaz Hussain (P.W.5), along with Police Party laid barricade on G.T Road near Daewoo Bus Stand Peshawar. On the date conveyed i.e. 23-10-2008 at 1800 hours, Car No.SGD-555 emerged which was signalled to stop but the driver attempted to escape, speeding up the same, however, after some chase, the car was brought to halt. The three appellants were found seated therein, one was claded in a veil. They disclosed their names to the I.O. while the driver was the present appellant.

4. On checking of the car, Shal Amin, appellant No.1 in the connected Criminal Appeal No.452 of 2010, was found in possession of seven (7) packets of charas powder packed in shoppers which was secured and on weighment it stood 7.700 Kgs. Cocaine recovered stood 4.050 Kgs. Samples were separated therefrom and the bulk of the narcotics was packed in separate parcels. Cell phones and CNIC were also recovered from the appellants besides cash amount.

5. The samples, sent to the laboratory, were found narcotics/intoxicants and reports are placed on file as Exh.P.W.5/8 and Exh.P.W.5/9. At the completion of investigation, charge-sheet was filed in the trial court where the prosecution examined, beside others, the two star witnesses i.e. the Investigating Officer and witness to the recovery memo (Exh.P.W.5/1).

6. It was contended that the present appellant, Farooq, was a taxi driver and the two co-accused hired his car thus, he was having no conscious knowledge that his co-inmates were smuggling narcotics while for the rest of the appellants it was argued that the charge and allegations have been exaggerated and that one of the accused namely, Abdul Waheed, sitting on the front seat, could not be held responsible or liable for the crime.

7. We have gone through the entire evidence with a degree of care and after reappraisal of the same, we have found that despite of searching and taxing cross-examination on the two star witnesses their testimonies could not be shaken in any manner thus, the evidence adduced at the trial by the prosecution is of a first degree, fairly and beyond any reasonable doubt, connecting the necks of the accused-appellants with the crime. The attempt on the part of the driver to escape, when he was signalled to stop, is a clear indication that he was having conscious knowledge about the presence of narcotics in the car otherwise, there was no reason for him, acting in that way. Moreover, no document has been brought on record that the present appellant was a taxi driver and the car was registered with the local authorities as taxi car hence, this plea is discarded.

8. As appellant, Shal Amin, had claded himself in veil, concealing his identity and personified himself as a lady to deceive the law-enforcing agencies, therefore, his such act clearly tells about his guilt moreover, he was in direct possession of the narcotics.

9. The other appellant, Abdul Waheed, too could not be extended clearance chit because once narcotics were recovered from one of his co-accused then the burden under the law has shifted to him to have explained that how and under what circumstances he boarded the car and became companion of the co-accused thus, in all probabilities as well as from the evidence on record it may be legitimately inferred that all the three appellants were actively involved in the smuggling of narcotics to the down country and all the three were jointly acting with common intention.

10. The plea of the defence that at the trial the narcotics were found of less weight and because of the reduced weight if it is divided amongst all the three appellants, they would not be liable for that much of punishment, as awarded by the trial court and because the prosecution has not brought on record anything to show that the appellants are previous convicts or have got a criminal history of the same nature and being first offenders, the court may exercise its discretion in their favour in the matter of sentence, has got some force.

11. In view of what has been discussed above, these two appeals are partially allowed. The conviction of all the three appellants is maintained, however, their sentences of seven (7) years' R.I. with fine of Rs.100,000 (one lac) awarded to each one of the appellants are reduced to two years' R.I. and the fine amount is reduced to Rs.50,000 for each of the appellants. They are also extended the benefit of section 382-B, Cr.P.C. Both the appeals are disposed of in the above terms. M.W.A./16/P Order accordingly.