2009 PLP 1211 (MLD)

SYED MUSADIQ HUSSAIN GILANI, J.

Appellant Sajjad Ali Shah, being found in possession of 6 Kgs., of heroin, which he was trafficking on bicycle, on 18-8-2006, at 1830 hours, near `Qabristan', Akbar Pura, was arrested by A.N.F. Staff of Police Station, A.N.F., Peshawar, and case, vide F.I.R. No. 44, dated 10-8-2006, under section 9(c) C.N.S.A., was registered against him. He stood trial in the Court of learned Judge, Special Court, CNS, Peshawar, who convicted and sentenced him to twelve years' R.I., and a fine of rupees two lac, or in" default of payment of fine to" one year' under section 9 C.N.S.A., vide judgment, dated 1-12-2007. The benefit of section 382-B, Cr.P.C., was also extended to him.

2. Having felt aggrieved by the impugned conviction "and sentence, appellant preferred instant appeal to this Court on different ground.

3. We have heard the learned counsel for the parties, and perused the record.

4. Learned counsel for the appellant argued threadbare that case against the appellant was not proved beyond any shadow of doubt, but evidence was not appraised properly by the trial Court, and he was wrongly convicted. He stated that site-plan was not prepared, and the entire stuff was not proved to be heroin, because of its shape and colour. He next argued that with the connivance of enemies of the appellant, this recovery was planted, because the presence of informer on the spot was admitted by the Investigating Officer, but the name of informer was not disclosed. Learned counsel for the appellant stressed that the case was replete with' doubts, and even a single circumstances creating doubt in prudent mind, shall be sufficient for acquittal of the appellant. In support of argument, he relied on 2004 YLR 1051, 1997 SCMR 1494, and 1994 SCMR 1345.

5. On the other hand, learned counsel for the State refuted the arguments, and controverted that the site-plan is not a substantive piece of evidence. One Gul Agha, against whom appellant has alleged mala fide, was not proved to be informer. The sample of heroin was duly separated, and sent to Chemical Examiner, regarding which report was in positive, and case against the appellant was duly established. He stated that even in case of 1780 Kgs., heroin, the sentence of ten years was maintained by the apex Court in a case reported as 2005 SCMR 859.

6. We have gone through the record, and found that the appellant, was arrested red-handed when carrying 6 Kgs., of heroin on bicycle. Appellant claimed that due to enmity with one Gul Agha, he was implicated in this case, and he also gave statement on oath under section 340(2), Cr.P.C., and produced D.W. Sakhawat Shah, and Syed Ayub Shah, as witnesses in defence. According to the appellant, his property was acquired for construction of Motorway, which was in possession of Akber Shah etc., and they were pressurizing him to transfer the property in their names, which he was not willing, and as a result, by those persons, he was falsely implicated in this case. The statement of the appellant under section 340(2), Cr.P.C. was shattered in cross-examination, and the statements of his two witnesses were also not inspiring confidence, and sufficient to rebut the evidence of the prosecution. The plantation of heroin worth lacs of rupees against appellant, is not believable, and he has introduced this story just to save his skin. The officials of A.N.F. had no mala fide against him for false implication, and their statements regarding recovery were consistent. The Investigating Officer, under the law, was not required to disclose the name of informer. The non-preparation of site-plan is also not fatal. The heroin exhibited in the Court was in granule powder form, regarding which report Exh.P.W.3/3 was in positive. However, the exact weight of heroin was not established, because it was weighed along with the wrappers and bags. In the circumstances, the conviction of the appellant was recorded in accordance with law, after proper appraisal of evidence, which is maintained, being unexceptional. However, appellant is a first offender, therefore, we deem it proper in the interest of justice to reduce his sentence. Accordingly, the sentence of imprisonment of appellant is reduced from twelve years' R.I. to eight years' R.I. and fine of rupees two lac to rupees one lac, and imprisonment in default of payment of fine from one year to six months' S.I. The benefit of section 382-B, Cr.P.C. shall remain intact. The instant appeal, after reduction of sentence, is disposed of. H.B.T./159/P Sentence reduced.