2014 PLP 12 (YLR)

SYED AFSAR SHAH, J.

This criminal appeal is directed against the judgment dated 5-7-2012 passed by learned Additional Sessions Judge-II/Judge Special Court, Swabi whereby the appellants were convicted under section 9(c), C.N.S.A. and sentenced to imprisonment for life each with a fine of Rs.1,00,000 each or in default thereof to undergo 6 months' R.I. further each with benefit of section 382-B, Cr.P.C.

2. Facts relevant for the disposal of present appeal in brief are as under.

3. On 28-6-2010, Aman Sher Khan, S.H.O. to Police Station Zaida along with police nafri was on gusht of the Illaqa when got information about the smuggling of narcotics to Punjab, Lahore through car bearing Registration No.ALT-256/Sindh and hence he made a nakabandi near Khunda Mor when in the meanwhile a car coming from Zaida side was stopped for the purpose of checking. On query, the driver of the car disclosed his name as Shakeel Ahmad whereas the other person seated with him in the front seat was identified as Sher Zaman and similarly a female sitting in the rear seat also disclosed her name as Mst.Feroza. The vehicle along with all the above three persons were taken to PP Khunda Mor where it was subjected to a thorough search and which led to the recovery of heroin consisting of 11 packets and opium containing 5 packets from the petrol tank, whereafter, it was weighed and which came to 11.140 Kgs heroin and 6-1/2 Kgs opium and accordingly 1 gram each were separated from the heroin and 5 grams each from the opium for the purpose of FSL sealed into parcels whereas the remaining were sealed into another parcel. On seizure of the vehicle, recovery of narcotics and arrest of the accused, the Seizing Officer prepared the recovery memo Exh.P.W.2/1, recorded the murasila Exh.PA/1 and sent it to the Police Station concerned where on the basis of which F.I.R. Exh.PA was registered against the appellants under section 9, C.N.S.A.

4. Investigation was started in the case and on its completion, challan was submitted to the court of learned Additional Sessions Judge-II/Judge Special Court, Swabi where on conclusion of the trial the appellants were convicted and sentenced herein impugned. Arguments heard. Record perused.

5. The prosecution case mainly hinges on the following categories of evidence:-- Statements of the Seizing Officer, Aman Sher Khan, S.H.O., Murad Ali Shah, S.-I. marginal witness to the recovery memo, Ahmad Ali, A.S.-I. who has conducted post occurrence investigation, Muhammad Abbas, Judicial Magistrate, who has recorded confessional statement of appellant Mst.Feroza and report of FSL.

6. Appearing as P.W.2 Aman Sher Khan, S.H.O. has stated about the occurrence by narrating facts leading to the receipt of information, fencing of road near Khunda Mor emerging of the car from Zaida side, its stoppage, followed by search and recovery of narcotics from its petrol tank. He has also stated about the weighment of the heroin and opium so recovered, separation of the samples for the purpose of FSL, preparation of the recovery memo and recording of the murasila.

7. So far as Murad Ali Shah, S.-I. is concerned, he has been examined as P.W.3 and being a member of the raiding party, he has stated in support of the version of the Seizing Officer. He has admitted the recovery memo Ex.P.W.2/1 to be correct and correctly bearing his signature.

8. So far as the factum of recovery is concerned, it hinges on the version of Aman Sher Khan, P.W.2 and Murad Ali Shah P.W.3 and as is evident from the record they were subjected to a searching and taxing cross-examination by the learned defence counsel but their testimony could not be shaken in any manner. There is nothing in their cross-examination, which could give an impression that they were all out to involve the appellants falsely or for that matter they were prompted by their enemies to foist such a huge quantity of narcotics on them. In fact their testimony is free from any material infirmity. No doubt, minor discrepancies are there in their statements but the same are not fatal to the prosecution case.

9. So far as Ahmad Ali Shah, S.I has been examined as P.W.6. He has conducted post occurrence investigation in the case and as a consequence thereof he has interrogated the accused, recorded the statements of the P.Ws. under section 161 Cr.P.C., got recorded confessional statement of female accused Mst.Feroza in the court of Judicial Magistrate, drafted the application for FSL as Exh.P.W.6/6 and sent it for chemical analysis, the report whereof as Exh.PK is on record. He also faced the test of cross-examination by the defence but with no premium to the appellant.

10. Muhammad Abbas, Judicial Magistrate when appeared as P.W.7, stated that he has recorded the confessional statement of accused/appellant Mst.Feroza after observing all the legal formalities. He has admitted the confessional statement as Exh.P.W.7/2 to be correct and correctly bearing his signature. It appears from the record that in this case the accused/ appellant Mst. Feroza was arrested on 28-6-2010 whereas her confessional statement was recorded on 29-6-2010. Besides its retraction, the confession is also exculpatory but it appears to be voluntary because it has been recorded on the following day of the occurrence. Again, the question arises that how being a female she boarded with the persons to whom she was having no nexus or relation and that too at late night, hence in the circumstances her version that she was having no knowledge of narcotics in the vehicle, on the face of it, is repellent to the common sense.

11. In view of the above, we have no doubt in our mind that the charge against the appellants has been proved beyond any shadow of doubt and that they have rightly been convicted.

12. Now the question arising for the consideration of this court is as to what would be the quantum of sentence and whether all the three appellants could be convicted for possessing the entire stuff. Since all the three appellants have been held guilty, it will not be fair to hold each one of them responsible for possessing the entire stuff recovered from the car. They will have to be burdened with their share in the crime and which in the circumstances of the case comes to round about 6 Kgs. Accordingly, we while maintaining the conviction, reduce the sentence of the appellants Shakeel Ahmad and Sher Zaman from life imprisonment to 5 years' R.I. each with a fine of Rs.30,000 each or in default thereof to undergo 2 months' S.I. further each. Since the accused/appellant Mst. Feroza is a female, therefore, she deserves leniency and hence her sentence is reduce from life imprisonment to 3 years' R.I. with a fine of Rs.20,000 or in default thereof to suffer two months' S.I. further. If any authority is needed, reference can be made to Murad Khan v. The State (rendered in Criminal Appeal No.390 of 2009 and Nasrullah v. The State decided on 5-11-2008 in Criminal Appeal No.373 of 2007. The benefit of section 382-B, Cr.P.C. shall remain intact. With the above modification in the sentence, the instant appeal is disposed of. HBT/234/P Sentence Reduced.