2012 PLP 463 (YLR)

WAQAR AHMAD SETH, J.

The appellant stood trial in case F.I.R. No.15 dated 19-1-2010 registered for offence under section 9 (c) C.N.S.A. at Police Station Kotwali, Peshawar and after having been found guilty has been convicted and sentenced to life imprisonment with a fine of Rs.100,000 or in default to undergo 6 months' S.I. vide judgment of learned Additional Sessions Judge/Judge Special Court/Judge Juvenile Court-VIII, Peshawar dated 4-5-2011, however, benefit of section 382-B, Cr.P.C. was extended to him.

2. Facts of the case are that on the eventful day at the relevant time the local police of Police Station Kotwali had information regarding smuggling of huge quantity of narcotics from Androon City to Punjab, hence believing the same to be true, they laid nakabandi at Androon Lahori Gate, Peshawar when in the meanwhile a motorcar bearing Registration No.267-SB appeared on the scene, which was signalled to stop. During the search, from the monitor, which was lying on the rear seat of the said vehicle, 19 packets of charas pukhta weighing 19 Kgs were recovered wherefrom 5 grams each were separated and were sealed into parcel while the remaining bulk was separated into separate parcel. The driver disclosed his name as Mudassir Khan son of Salim Muhammad resident of Garhi Saliheen, Urmar Bala, Peshawar, the appellant herein, who on cursory interrogation, stated that one Jan-e-Alam had entrusted the said monitor to him at the hire of Rs.400 with a direction to hand over the same to Sardar Alam, hence the accused and vehicle were taken into custody and murasila was drafted and sent to Police Station, thus, the matter was registered vide F.I.R. No.15 dated 19-1-2010 under section 9(C) C.N.S.A. at Police Station Kotwali.

3. After completion of investigation, complete challan was put in court against the appellant while the accused Madyan, Sardar Alam and Jan-e-Alam were placed in Column No.2, as they were declared innocent by the Investigating Officer. After compliance of provisions of section 265-C, Cr.P.C., the appellant was formally charged, to which he did not plead guilty and claimed trial.

4. The prosecution in support of its case produced as many as 5 P.Ws. in all. P.W.1. is Syed Farid Shah, S.-I. who incorporated the contents of murasila in the shape of F.I.R., which is Exh.PA. P.W.2. is Hamsherullah Inspector/CIO, who investigated the case, proceeded to the spot and prepared the site plan Exh.PB at the instance of complainant. He also recorded the statements of P.Ws. under section 161, Cr.P.C. Nawab Khan, S.-I. appeared as P.W.3., who is marginal witness to the recovery memo. Exh.P.W.3/1, vide which the complainant took into possession 19 packets of charas pukhta from the Motorcar bearing No.267-SB, which were lying on the rear seat concealed in computer monitor and the complainant sent the sample to FSL. P.W.4. is Sardar Hussain, S.-I. who stated that he recovered and took into possession 19 packets of charas pukhta weighing 19 Kgs from the motor Car No.267-SB from the rear seat concealed in computer monitor vide recovery memo. Exh.P.W.3/1. The charas is Exh.P-1. Similarly, a chit produced by the driver/ accused Exh.P-2 and the site plan was also prepared at his instance. He also drafted an application, which is Exh.P.W.4/1 for sending the sample to FSL. Muhammad Riaz Khan, S.-I./CIO appeared as P.W.5, who is marginal witness to the recovery memo Exh.P.W.2/1 vide which the CIO Hamsherullah Khan has taken into possession one Mobile Nokia set 1100 used along with SIM No.0323-9216640 Exh.P-3. Similarly, the CIO took into possession one registration copy permit part-B belongs to Motorcar No.267-SB taxi produced by Tila Muhammad, relative of the accused, vide recovery memo Exh.P.W.2/5, the relevant documents are exhibited as P-4.

5. This is the gist of evidence produced by prosecution. After close of evidence, statement of appellant under section 342, Cr.P.C. was recorded, wherein, he denied the allegations levelled against him. However, he neither opted to be examined on oath nor wished to produce evidence in his defence, thus, the proceedings culminated in conviction of the appellant as mentioned above, hence the appeal in hand.

6. Learned counsel for appellant contended that the appellant being a poor taxi driver was not in the knowledge of presence of narcotics in the computer monitor, which was given to him by Jan-e-Alam for onward handing over of the same to Sardar Alam, therefore, being a carrier the appellant is innocent and falsely implicated in the case; that the record is silent about investigation against the real culprits named above, hence the conviction and sentence of appellant is bad in law merits reversal; that the statements of prosecution witnesses are inconsistent and conflicting with each other, hence conviction cannot be based on such cryptic evidence; that the appellant has put forth the true story behind the occurrence but the Investigating Officer has dishonestly declared the real culprits as innocent and enroped the present accused with the commission of offence; that the appellant is first offender and there is no previous history of his involvement in such-like cases in the past, therefore, on this score too the impugned judgment is harsh requires to be set at naught.

7. To the contrary, learned State counsel contended that the appellant was apprehended on the spot while driving the motor wherefrom inside the monitor 19 packets containing charas pukhta were recovered for which he has given no plausible explanation; that the report of FSL regarding the recovered stuff is positive, therefore, on the available record the appellant was rightly convicted and sentenced. Arguments heard. Record perused.

8. The record reveals that the appellant was apprehended while driving a motorcar at the relevant time and from the computer monitor, which was lying on the rear seat, 19 packets containing charas pukhta was recovered. The prosecution in support of its case produced the above witnesses relating to search and recovery proceedings. The testimony of said witnesses was also fully supported by incriminating material available on record. The testimony of P.Ws. could neither be shattered in respect of time, place and manner of the occurrence nor any contradictions were brought in their statements. The sample taken from recovered stuff was sent to FSL and report wherefrom has been received in positive. No or mala fide has been attributed to police by appellant regarding his implication in the commission of offence. At the fateful time, the appellant was alone present and driving the vehicle, therefore, the contraband of 19 kgs chars pukhta amounts to be in his physical and constructive possession. Though no independent witness has been associated with the search and recovery proceedings, however, in absence of any previous ill-will or grudge, the police officials are always good witnesses as in such-like cases no private witness come forward to depose against the accused due to fear of enmity with the narcotics dealer. Therefore, the case against the appellant has been established beyond any shadow of doubt and he was rightly convicted, however, the question of quantum of sentence requires consideration.

9. The appellant on his arrest at the first instance stated to the police that he is a taxi driver and the computer monitor, from which 19 packets containing charas pukhta has been recovered, was given to him by Jan-e-Alam for onward handing over of the same to Sardar Alam and his cellular number was also shown but it is astonishing to observe that the Investi-gating Officer has disbelieved such stance of appellant rather the said accused along with one Madyan were placed in Column No.2, hence were declared innocent. Besides this, the appellant is of tender age and being first offender, there is no previous history of his involvement in such-like cases in the past, therefore, case for reduction of sentence has been made out. In view of the above, while maintaining the conviction of the appellant, his sentence is reduced to 5 years from life imprisonment. Similarly, the fine amount of Rs.100,000 is also reduced to 25,000, however, the benefit of section 382-B, Cr.P.C. extended by learned trial court shall remain intact. Appeal partially allowed. H.B.T./384/P Sentence reduced.