2012 PLP 620 (MLD)

WAQAR AHMAD SETH, J.

This judgment shall also decide Criminal Appeal 532 of 2008 entitled Amir Amin v. The State as both these appeals are outcome of one and same F.I.R. No.345 dated 31-7-2008 registered for offence under section 9(c) C.N.S.A. at Police Station Sarband District Peshawar.

2. The appellants stood trial and after having been found guilty by learned Additional Sessions Judge-XII/JSC, Peshawar, vide the impugned judgment dated 23-12-2008, were convicted and sentenced to life imprisonment with a fine of Rs. 100,000 each or in default in payment of fine, to suffer further one year S.I. with benefit of section 382-B, Cr.P.C.

3. On the eventful day, the local police of Police Station Sarband were having information regarding Smuggling of narcotics from tribal area to Punjab, thus, believing the same to be true, they laid picket at Bara Qadeem Check Post when in the meanwhile a motor car bearing Registration No.AEA-131/Sindh coming from tribal territory was signalled to stop, which was driven by Aamir Amin whereas appellant Mst.Yasmeen was sitting with him. Search of the motor car was carried out wherefrom its secret cavities 142 packets chars pukhta, 10 packets of opium and 100 live rounds of 44 bore were recovered, hence the accused were taken into custody and case was registered against them as mentioned above.

4. During the course of investigation, one Said Amin son of Gul Rehman was also arrayed as an accused as per statements of appellants, who absconded and proceedings against him were initiated under section 512 Cr.P.C.

5. During the trial, the appellant Aamir Amin preferred an application before the learned trial court for determination of his age, therefore, he was referred to Standing Medical Board, who declared him juvenile, and hence separate challan was submitted against him under the Juvenile Justice System Ordinance, 2000.

6. The prosecution in support of its case produced four witnesses in all. P.W.1 is Raza Muhammad Khan, S.H.O. Police Station Sarband, Peshawar who narrated the same facts as mentioned in the first report. Janab Dad Khan, CIO Police Station Sarband, Peshawar appeared as P.W.2, who prepared the site plan Ex.P.W.2/1 at the instance of Raza Muhammad Khan S.H.O., Ziaullah A.S.-I., Muhammad Ismail, Zar Khan, Zabita Shah, Riaz and other ocular witnesses and produced the accused before the competent court for obtaining custody.

7. Zahir Shah No.3904 Moharrir Police Station Sarband, Peshawar appeared as P.W.3, who incorporated the contents of murasila into F.I.R. Exh.PA/1.

8. Gul Rehman, S.-I. Police Station Sarband, Peshawar appeared as P.W.4, who also narrated the same facts, which led to recovery of narcotics from the appellants.

9. The appellants were charge sheeted as per provision of section 265-C, Cr.P.C., wherein, they did not plead guilty and claimed trial.

10. After close of prosecution evidence, statements of appellants under section 342, Cr.P.C. were recorded, wherein; they neither wished to be examined on oath nor desired to produce evidence in their defense. The trial culminated in conviction and sentences of the appellants as mentioned above hence necessitated the filing of instant appeals.

11. Learned counsel for appellant Mst.Yasmeen contended that per contents of F.I.R., the accused was sitting with the co-accused in the motor car, therefore, she was not in conscious knowledge regarding presence of alleged narcotics in the motor car; as per allegation, huge quantity of narcotics has been recovered from the secret cavities of the motor car, which is not appealing to a prudent mind as the same cannot be kept inside the secret cavities rather the same was planted one against the accused; that requirement of section 103, Cr.P.C. has not been complied with by the police while carrying out the alleged recovery of narcotics; learned counsel for appellant Aamir Amin contended that the sealed parcels were opened before the requisite process, therefore, the recovery made is doubtful; that as per statement of P.W.1, the alleged recovery has been effected from dish board of the vehicle but he has not given the details, hence the exercise carried out with regard to recovery proceedings was against law that the sentence awarded to appellant Aamir Amin is harsh being juvenile as well as patient of Hepatitis-B, therefore, the conviction and sentences awarded to accused requires to be set aside in the facts and circumstances of the case.

12. As against that learned State counsel while rebutting the arguments from other side contended that huge quantity of narcotics has been recovered from secret cavities of motor car driver by appellant Aamir Amin while the co-accused Mst. Yasmeen was sitting with him, which has been established through the statements of P.Ws.; that the prosecution witnesses were consistent on each and every aspect of the matter, hence their testimony could not be shattered despite lengthy and taxing cross examination; that mala fide attributed to the prosecution has not been established through convincing and reliable evidence by the appellants, that the driver Aamir Amin accused having the charge of vehicle for long journey was supposed to have knowledge with regard to contents and articles being transported in it, thus, the conviction and sentences rendered by learned trial court requires no interference by this court. In support of his arguments, reliance was placed on 2009 SCMR 1403.

13. The record transpires that the appellants were apprehended at Bara Qadeem Check Post on the relevant day while coming from tribal area in a motorcar bearing Registration No.AEA-131/ wherefrom its secret cavities huge quantity of narcotics has been recovered. The purpose of their visit to Punjab and sitting together has not been reasonably explained as the appellant Mst.Yasmeen is hailing from Lahore while the co-accused Aamir Amin belong to Peshawar. Samples from the recovered stuff were sent to FSL for chemical analysis and report received therefrom is in positive. The appellants alleged that the police have planted the narcotics against them but this assertion has not been proved through confidence inspiring evidence as such a huge quantity cannot be planted. The prosecution produced four witnesses in support of its case, which were found consistent and their testimony could not be shattered through lengthy cross-examination. There were some minor discrepancies in the statements of P.Ws., which would by no stretch of imagination imply that the recovery effected is false and concocted. The question that no independent witness has been associated with the search and recovery proceedings as required under section 103, Cr.P.C. has no force at all as section 25 of the Control of Narcotic Substances Act being special law on the object overrides the former provision. In such like cases the police witnesses are always good witnesses as nowadays no body dares to become prosecution witness due to fear of enmity with the accused, therefore, on the available material the appellants have rightly been convicted.

14. On the quantum of sentence too, the appellants have failed to make out a case for reduction as the learned trial court has recorded the alternate sentence for the alleged crime. In view of the above, these appeals the connected Criminal Appeal No.532 of 2008 both were dismissed through a short order of even date and above are reasons for the same. However, benefit of section 382-B, Cr.P.C. already granted by learned trial court shall remain intact. The appellant Aamir Amin was released on bail on medical ground. He being present in court is taken into custody; however, keeping in view the nature of his ailment, which was diagnosed as Hepatitis-B, the Superintendent Jail is directed to provide him regular treatment at State expenses either in LRH Peshawar or in the Jail Hospital. The surety bonds executed in his favour stand cancelled. M.W.A./30/P Appeal dismissed.