Mst. PARVEEN Versus State

IJAZ-UL-HASSAN KHAN, J.-- - Mst. Parveen appellant has preferred instant Criminal Appeal No.317 of 2005, assailing the judgment, dated 25-4-2005 passed by learned Additional District and Sessions Judge, Peshawar, whereby she was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 4 years' R.I. with fine of Rs.20,000 or in default of payment of fine to undergo 3 months' S.I. The benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Pursuant to an authentic information stated to have been given on 5-10-2004, a "Naka Bandi" was conducted at Bara Road near the office of Political Agent, Peshawar. In the meanwhile at about 14-00 hours a bus was sighted coming from Bara side. The bus was stopped. A woman was deboarded from the bus. On inquiry she disclosed her name as Parveen, widow of Muhammad Jan, resident of Hazara Colony, Rawalpindi. The personal search of the woman through lady constables led to recovery of "Charas" from her person. The "Charas" was weighed and found 7 kilograms. A meagre quantity was separated out of the lot and sent for chemical analysis. The remaining was sealed in a parcel. The woman was formally arrested and a case was registered against her under section 9(c) of the Control of Narcotic Substances Act, 1997.

3. The prosecution in order to prove its case produced 5 witnesses in all. The appellant in her statement recorded under section 342, Cr.P.C., denied the prosecution allegations and claimed to have been charged falsely. She neither appeared as her own witness on oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence.

4. At the conclusion of trial, the appellant having been found guilty was convicted and sentenced as mentioned above.

5. Mr. Muhammad, Fakhre Alam Jhagra, Advocate for the appellant criticized the impugned judgment on a variety of grounds and attempted to argue that the conviction and sentence awarded to the appellant is manifestly against the law and facts and the material on record has not been considered and appreciated in its true perspective which has resulted in complete failure of justice. Concluding the arguments, the learned counsel maintained that though police had prior information about the occurrence, yet the formalities of section 103, Cr.P.C. had not been complied with which makes the recovery doubtful.

In this regard he placed reliance on a judgment of this Court reported as Mst. Khurshida alias Rasheeda Begum v. The State 2005 PCr.LJ .120.

6. Mr. Abdur Rauf Gandapur, Advocate, appearing on behalf of the State, on the other hand, opposed the arguments of learned counsel for the appellant, supported the impugned judgment whole heartedly and maintained that the appeal merits outright dismissal.

7. The appellant is accused of having been found in possession of 7 packets of "Charas" weighing 7 kilograms. A meagre quantity has been separated out of the lot and sent to Forensic Science Laboratory, Peshawar. Report of the Chemical Examiner, F.S.L., Peshawar is in positive. The prosecution in order to prove apprehension of the appellant and recovery of contraband "Charas" from her, has produced three, witnesses namely, S.I. Kamal Hussain (P.W.1), H.C. Sher Ali (P.W.2) and lady constable Mst. Sabila (P.W.3). All these witnesses are consistent on material particulars and no contradiction whatsoever could bs: pointed out by learned counsel for the appellant to damage the prosecution case. These witnesses were subjected to fairly lengthy cross-examinations but their testimony could not be shattered to create doubt in the prosecution version. Though the recovery has been witnessed by the police officials, but there is nothing on record to show that they had any ill-will or motive against the appellant to falsely. involve her in this case. Object of enactment of section 103, Cr.P.C. is to ensure fair dealing on the part of the officer making search. It is enacted for greater certainty and security and not because the statements of certain officers can under no circumstances be accepted. The purpose of section 103, Cr.P.C. is to ensure that the testimony given in Court in regard to the result of a B search should not depend upon the Police Officer alone but also upon the evidence of independent person and all possibilities of false implication in the case of search be minimized by the availability of independent person. Mere non-compliance of provision of section 103, Cr.P.C. would not vitiate the proceedings. Defence in order to succeed must show that there was either miscarriage of justice or accused was prejudiced in his trial or defence. Section 25 of Control of Narcotic Substances Act, 1997 provides exception when it comes to deal with C provisions of section 103, Cr.P.C. Therefore, in narcotic cases recovery does not become illegal where witnesses from locality are not associated at the time of recovery. 1998 PCr.LJ 1628 (D.B.) and 1997 MLD 79.

In view of above discussion, we find that the prosecution has succeeded to prove its case against the appellant beyond any reasonable doubt and the appeal merits outright dismissal. However, keeping in view the fact that appellant is a widow and lodging in the jail ever since her arrest on 5-10-2004, we reduce the sentence of four years' R.I. awarded to the appellant to three years' R.I. The sentence of tine shall D remain intact. The appellant shall also be entitled to benefit of section 382-B, Cr.P.C. With this modification, the appeal stands dismissed.

H.B.T./477/P Order accordingly.