2007 PLP 1767 (YLR)

IJAZ-UL-HASSAN KHAN, J.--Muhammad Ibrahim, appellant has filed this appeal through Superintendent, Central, Jail, Peshawar, against judgment dated 2-9-2006, passed by learned Additional Sessions Judge, Charsadda, whereby the appellant has been convicted under section 9(c) of the Control of Narcotics Substances Act, 1997, and sentenced to suffer three years' R.I. with fine of Rs.10,000 or in default whereof to undergo further S.I. for six months, with benefit of section 382-B, Cr.P.C.

2. The prosecution story in brief is, that on 26-9-2004, complainant Akhtar Ali Khan, S.H.O., Police Station, Prang, along with HC Abdul Akbar, Constable Yousaf and other, was on routine "gasht", when he received spy information that Muhammad Ibrahim son of Bismillah Jan, was busy in selling Charas on the thoroughfare of village Shabara, in the precinct of Police Station, Prang. On reaching the pointed place, the appellant was found in possession of a plastic envelope, containing Charas. The Charas was weighed and found 2000 grams. A meagre quantity i.e. five grams was separated and sent to FSL Peshawar for analysis. The remaining was sealed into a parcel. The appellant was arrested and a case was registered against him under section 9(c) of Control of Narcotic Substances Act, 1997.

3. The prosecution, in order to prove its case, produced four witnesses, namely, S.H.O. Akhtar Ali Khan, FC Yousaf, A.S.-I. Khanullah and S.-I. Qeematullah Khan. After close of the prosecution case, appellant was examined under section 342, Cr.P.C. He denied the prosecution allegations and claimed to have been falsely charged. He, however, did not opt to produce evidence in his defence or depose on oath in disproof of the allegations appearing against him in the prosecution case.

4. Miss Farhana Marwat, Advocate, learned counsel for the appellant, mainly contended that there was no reliable evidence led. by the prosecution to have proved the charge against the appellant, but learned trial Court, without appreciating the .same, recorded erroneous finding; that there are serious discrepancies/contradictions between the statements of prosecution witnesses; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of section 103, Cr.P.C. and that specimens separated from the recovered material have been sent to Laboratory after considerable delay, which has made the prosecution story highly doubtful. Concluding the arguments, the learned counsel suggested that appellant had already undergone a substantial term of sentence, therefore, the remaining period may be reduced to one already undergone.

5. Mr. Azmatullah, Advocate, appearing on behalf of the State, supported the impugned judgment and maintained that there is sufficient material on .record to connect the appellant with the commission of crime and the impugned judgment of conviction is not liable to be interfered with. However, the learned counsel has not resisted the request of learned counsel for the appellant for reduction iii the sentence, awarded to 'the appellant.

6. The prosecution in order to prove the apprehension of the appellant and recovery of contraband charas from his possession, has produced two witnesses, namely, S.H.O. Akhtar Ali Khan (P.W.1) and FC Yousaf Khan (P.W.2). The former has. partially investigated the case whereas the latter is one of the marginal witnesses to recovery memo. Exh.P.W.1/1, vide which the contraband charas has been taken into possession. Both the witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have successfully faced the test of cross-examination. The contradictions pointed out by learned counsel for the appellant, are not of serious nature and those cannot be considered sufficient to vitiate the trial or to make the recovery doubtful. The mere fact that these witnesses belong to police department, by itself, cannot be considered a good ground to discard their statements. The defence has not been able to shatter their testimony or pinpoint any ill-will, which may have prompted them to depose falsely against the appellant.

7. As regards the delay intending the seized property, there is no allegation of the appellant that the property was tampered with during the process of transit or the remaining property was not charas. It was for the appellant to have taken such plea before the trial Court but the appellant did not do so. However, we have examined the chemical Analyzer's report and found that the sealed packet was received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the arguments of the learned counsel for the appellant are not sound. In this regard, reference can be made to Amjad v. The State (2006 PCr.LJ 988).

8. As regards the association of private witnesses, sufficient it to say that provisions of section 103, Cr.P.C. are not applicable to the facts and circumstances of the case in view of provisions of section 25 of the Control of Narcotic Substances Act, 1997. If an authority is needed on the point, reference can be made to State v. Muhammad Amin (1999 SCMR 1367).

9. Adverting to the objection regarding non-association of private witnesses, it may be observed that for various reasons the private persons do not come forward to become witnesses in such type of cases. The objection is misconceived State v. Muhammad Amin (1999 SCMR 1367).

10. We have gone through the judgment of the trial Court and also record of the case. We agree with the conclusion of the trial Court and do not find serious defect with the evidence adduced against the appellant: However, having regard to facts and circumstances of the case, while maintaining the conviction, we reduce the sentence from three years' R.I. to two years' R.I. which we consider will meet the ends of justice, particularly in view of meeting of minds on this point of both, the learned counsel for the appellant as well as for the State. However, the sentence regarding fine shall remain intact with modification that in default the appellant shall undergo three months' S.I. instead of six months' S.I. The appeal stands disposed of in the above terms. H.B.T./88/P Order accordingly.