Mst. SABIHA vs STATE

Ijaz-ul-Hassan, J.--This appeal has been directed against the judgment dated 2.7.2005, passed by Mr. Mehmood-ul-Hassan, Additional Sessions Judge, Peshawar, by which Mst. Sabiha appellant has been convicted under Section 9 of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for four years with a fine of.Rs, 20,000/- or in default to undergo further three months S.I. Benefit of Section 382-B Cr.P.C. was extended to the appellant.

2. The prosecution story in brief is that on 8.12.2004 at 15.10 hours S.I. Banaras Khan (PW.3) was on routine (gasht' alongwith Fazal Maula, Rehmanullah ASIs and others, when he received information that a woman will smuggle huge quantity Of narcotics from 'illaqa ghair' to Punjab. He conducted `naka bandi' at Bara Road, near office of the Political Agent, Khyber Agency. In the meanwhile, at 15.25 hours, a women alighted from a bus coming from Bara side. She was apprehended. The personal search of the woman through lady constables Miraj Bibi and Musarrat Bibi, led to recovery of charas from her jacket. The charas was weighed and found 4 k.gs. A meager quantity i,e, 4 grams each was separated out of the bulk for chemical analysis and the remaining was sealed into a parcel. On inquiry she disclosed her name as Sabiha wife of Nisbatullah, resident of Dheri Shabqadar, Charsadda. She was formally arrested and a case was registered against her under Section 9 (c) of the Control of Narcotic Substances Act, 1997.

3. At the trial, prosecution in order to prove its case produced four witnesses in all. After close of the prosecution case, the appellant was examined under Section 342 Cr.P.C. She pleaded not guilty, professed innocence and claimed to have been falsely charged. She, however, did not opt to produce evidence in her defence or to depose on oath in disproof of the allegations appearing against her in the prosecution case: In answer to a question, as to what is your statement and why are you charged, she stated:- "I am innocent and have been falsely charged in the instant case. In fact I alongwith my minor child had gone to Peshawar Saddar for the purpose of shopping on the relevant day. Meanwhile a lady inquired from me about the Mazda Bus for Haji Camp. During this two police constables reached at the spot, arrested the same lady and searched of her and recovered some contraband from her possession. After bargaining, by the police constable with the same lady she was let free and I was arrested alongwith my minor child and a false and concocted cash was registered against me."

4. Representing the appellant, Mr. Muhammad Arif, Advocate mainly contended that the evidence on record has not been appreciated in its true perspective, which has resulted in complete failure of justice; that there are serious glaring contradictions in the statements of the prosecution Witnesses; that the presence of lady constables at the spot is highly doubtful and that the recovery memo negates the whole case of the prosecution. In the alternative, the learned counsel prayed for reduction in the sentence awarded to the appellant.

4.As against that, Miss Neelam Khan, Advocate for the State argued that there is sufficient material on record to warrant conviction and that the charge against the appellant was fully established and as such the appeal is liable to be dismissed.

5.The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband charas from her possession has produced lady constable Miraj (PW.2), S.I. Banaras Khan (PW.3), and ASI Rehmatullah (PW.4), From the perusal of the statements of PWs and lengthy cross-examination on them, we do not find any reason for the false implication of the appellant in the present case. The appellant has failed to bring on record any malafide or ulterior motive on the part of the police to falsely implicate her in the present case. These witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have successfully faced the test of cross-examination. The defence has not been able to shatter their testimony or pin point any ill-will, which may have prompted them to depose falsely against the appellant. The mere fact that these witnesses belong to police department, by itself, cannot be considered a good ground to discard their statements. The contradictions pointed by the learned counsel for the appellant, are of minor nature and those cannot be considered sufficient to vitiate the trial or to make the recovery doubtful. The plea taken by the appellant is not at all worthy of any belief and seems to have been fabricated just to save her skin.

6.The onward transmission of our grams sample taken out from total narcotic material recovered from the appellant to the office of Chemical Examiner is also proved beyond any shadow of doubt.

The samples were received intact. The appellant had not challenged the nature of recovery substance being not charas, or narcotic before the trial Court or this Court. No question was put to PWs at the trial in this regard. The report of Analyst received back was found in positive, which has supported the prosecution story as well as recovery of narcotic in this case.

7.We, as a result of the above discussion, have been constrained to hold that the prosecution has successfully brought home the guilt to the appellant beyond any shadow of reasonable doubt.

The defence has miserably failed to extract any material discrepancies or contradictions from the statements of the P.Ws. The appellant did not appear as his own witness as required under Section 340(2) Cr.P.C. to contradict the prosecution story which is also fatal to him.

8.The appellant statedly is a first offender, which has not been controverted by the other side. She alongwith suckling baby is languishing in jail for sufficient long time. We, therefore, have found scope for taking lenient view in the matter of her sentence. Resultantly, we reduce her sentence from 4 years R.I. to 2 years R.I. and fine from Rs, 20.000/- to 10,000/- or in default thereof to suffer further S.I. for one with this modification the appeal stands dismissed.