GUL REHMAN vs THE STATE

' IJAZ-UL-HASSAN KHAN, J.--- This appeal has been directed against the judgment dated 6-4-2004, recorded by learned Additional Sessions Judge, Kohat by which appellant Gul Rehman son of Zamir Gul, resident of Darra Adam Khel, has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act of 1997), to suffer imprisonment for life with fine of Rs,12,000 or in default to further undergo three months' S.I. With benefit of section 382-B, Cr.P.C.

2. The prosecution story in brief is that on receipt of credible information that on 17-6-2002, large quantity of narcotics is likely to be transported/smuggled from Darra Adam Khel to Punjab; a "Naka Bandi" was laid near Gulshan Abad Check Post. In the meanwhile, at about 12-15 hours, a pickup was sighted coming from Darra side. The pickup was stopped for checking. It was carrying passengers. On suspicion, a young man having a "Gathri" in his hand lying in between his feet was deboarded from the vehicle. The search of the "Gathri" led to recovery of Pukhta Charas. The Charas was weighed and found 15 and half kilograms. A meager quantity i,e, four grams was separated out of the lot for chemical analysis. The remaining was sealed into a parcel; on inquiry the offender disclosed his name as Gul Rehman son of Zamir Gul. He was formally arrested and a case was registered against him.

3. The prosecution at the trial examined 3 witnesses in all namely, S.-I. Qaiser Khan (P.W.1), I.H.C.

Muhammad Nazir Khan (P.W.2) and S.H.O. Abdur Rashid complainant (P.W.3).

4. The appellant in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. However, in his statement recorded under section 340(2), Cr.P.C. The appellant admitted that on the day of occurrence he was travelling in the pickup in question, ,which was stopped by the police at Police Post Gulshan Abad. The pickup was full of passengers. The police recovered a "Gathri" from the pickup. He explained his position qua ownership of the "Gathri". He has been falsely implicated in this case. He led no evidence in defence.

5. Mr. Ishtiaq Ibrahim, Advocate, learned counsel for the appellant contended with force that the conclusions of the learned Court below on all crucial features of the case are imaginary and speculative rather than on solid tenable evidence; that the trial Court has misread and misappreciated the evidence and there is no cogent evidence on record which could connect the appellant with the commission of crime. The learned counsel maintained that there are glaring contradictions and discrepancies in the statements of the prosecution witnesses of which the trial Court has not taken notice of, moreso the defence version which was more plausible and nearer to the, truth, was brushed aside without cogent reasons. Concluding the arguments, the learned counsel submitted that the impugned judgment of conviction cannot be allowed to remain intact and the appellant is entitled for a finding of acquittal. In this regard reliance was placed on Muhammad Hashim v. The State PLD 2004 SC 856 and Farid Gul v. The State 2002 PCr.LJ 1810 (Peshawar).

6. Responding to the arguments of learned counsel for the appellant, Mr. Tariq Wasim, Advocate, learned counsel appearing on behalf of the State, maintained that prosecution has brought sufficient material on record to implicate the appellant with the commission of crime and in absence of any or animosity on the part of the police, such large quantity of Charas cannot be expected to be planted on the appellant.

7. There is no denial of the fact that the appellant was travelling in the pickup in question. The pickup was stopped at Gulshan Abad Check Post for checking. The case of the prosecution is that appellant while travelling in the pickup was found in possession of a "Gathri" lying in between his feet. The search of the "Gathri" led to the recovery of "Pukhta Charas" which was weighed and found 15,500 grams. A meager quantity i,e, four grams was separated from the recovered material and sent to the office of Chemical Examiner for analysis. The remaining was sealed into parcels. Though the ownership of the "Gathri" has been denied by the appellant but the same stands satisfactorily proved through the deposition of P.W.2 and P.W.3. The mere assertion of the appellant that he was not found' in possession of the "Gathri" under reference, without a positive attempt on his part to substantiate the same, is of no consequence. We are confident that appellant was owner of the "Gathri" containing the contraband material. The prosecution witnesses produced in support of the recovery have demonstrated complete unanimity on all the material feature of the case and nothing could be gained by the defence to shatter their veracity.

8. We have examined the case property in Court. It consists of slabs. One of such slabs was weighed and found 1770 grams. We tend to agree with learned counsel for the appellant that nothing is available on record to show whether sample for examination was taken out from each slab to ascertain that 15 and half kilograms was Charas or some other commodity, having resemblance with the colour of Charas. In the given facts and circumstances of the case, it would be presumed that sample was taken out from only one slab. As far as remaining slabs are concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the slabs of Charas or otherwise. It may be noticed here that out of the recovered material sample of four grams was taken from one slab and sent to the Chemical Examiner for analysis. The report is in positive. The culpability of the appellant can, therefore, only be regarding one slab from which the sample was taken. In the circumstances we feel that appellant can be held guilty to that extent only. Resultantly the sentence of imprisonment for life awarded to the appellant by the trial Court is reduced to 14 years rigorous imprisonment. The sentence of fine and in default thereof shall remain intact. The benefit of section 382-B, Cr.P.C. Would be extended to the appellant as already held by the trial Court. With this modification, the appeal is hereby dismissed.