Mst. NAWSHADA Versus State

IJAZ-UL-HASSAN KHAN, J.--- Mst. Nawshada and Mst. Faulada appellants through the instant Jail Appeal bearing No.296 of 2005 have challenged their conviction and sentence under section 9(c) of the Control of Narcotic Substances Act, 1997, recorded by Mr. Abdur Rehman Khan, Judge Special Court (C.N.S.), Camp Kohat vide his judgment dated 11-5-2005 in case F.I.R. No.2 registered with Police Station Anti-Narcotics Force, Kohat on 15-2-2004. Mst. Nawshada was convicted under section 9(c) of the Act and sentenced to three years' R.I. with a fine of Rs.50,000 or in default thereof to suffer further three months' S.I. Mst. Faulada was also convicted under section 9(c) of the Act and sentenced to five years' R.I. with a fine of Rs.50,000 or in default thereof to suffer further three months' S.I. Benefit of section 382-B, Cr.P.C. was, however, extended to them.

2. The prosecution story in brief is, that on 15-2-2004 complainant Muhammad Afzal Asim, Inspector, Police Station A:N.F., Kohat along with a police party was present at Kohat-Bamiu Road near Lachi Grid Station for the purpose of checking, when at about 1100 hours a passenger Bus No.RIR-6755 was sighted coming from Peshawar side. The bus was stopped. Two ladies were found sitting in the bus in suspicion condition. On inquiry they disclosed their names as Mst. Nawshada wife of Gul Zaman, resident of Gliolana Mattani, District Peshawar and Mst. Faulada wife of Roidad Shah, resident of Jalbai, District Swabi. The personal search of the ladies made through lady searcher Mst. Gulshada P.W. led to the recovery of Charas weighing 3 kilograms and 600 grains from the possession of Mst. Nawshada and 7 Kgs 200 grams Charas from the possession of Mst. Faulada. A meagre quantity i.e. 10 grams each was separated for laboratory test. The remaining was sealed into separate parcels. The accused were formally arrested, and a case was registered against them.

3. During the trial, the prosecution produced as many as five witnesses against the appellants. Inspector Asim Afzal P.W.4 deposed about the various steps taken by him during the investigation of the case and furnished a detailed account about the apprehension, personal search of the appellants and recovery of Charas, Tickets and some cash amount from their possession. Lady searcher Mst. Gulshada P.W.5 testified having conducted search of the appellants and recovered Charas, cash amount and tickets from their possession. She also confirmed having signed recovery memos. Exh.P.W.4/1 and Exh.P.W.4/3 as marginal witness. The remaining witnesses are more or less of formal nature.

4. After the close of the prosecution case, the appellants were examined under section 342, Cr.P.C. They pleaded not guilty, professed innocence and claimed to have been falsely charged.

5. They, however, did not opt to produce evidence in their defence to depose on oath in disproof of the allegations appearing against them in the prosecution evidence.

6. At the conclusion of the trial, the learned trial Court found the prosecution case against both the appellants to have been proved beyond reasonable doubt, and thus, they were convicted and sentenced by him as mentioned and detailed above.

7. We have heard at length Miss Farhana Marwat, Advocate for the appellants and Mr. Muhammad Khalid, Advocate, appearing on behalf of the State, in the light of the material on record.

8. It has been contended by the learned counsel for the appellants that the prosecution has not been able to prove that the narcotics were in possession of the appellant; that the trial Court did not appreciate and appraise the evidence in its true perspective; that from the prosecution evidence no case whatsoever was made out against the appellants; that the recovery cannot be relied upon as the mandatory requirement of section 103, Cr.P.C. have not been complied with by the Investigating Officer and that the material on record cannot be considered sufficient to sustain conviction. She finally argued that in any case the sentence awarded to the appellants was on higher side and the same may be reduced to already undergone.

9. As against that, the learned counsel for the State, supported the impugned judgment and maintained that sufficient material was available on the record, connecting the neck of the appellants with the commission of the crime and their conviction and sentence was perfect and legal, not warranting interference by this Court.

10. The prosecution in order to prove the factum of apprehension and recovery of the contraband Charas from possession of the appellants, has produced Inspector Asim Afzal P.W.4 and Lady Constable Mst. Gulshada P.W.S. These witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have resolutely withstood lengthy cross-examination. The defence has not been able to shatter their testimony or pinpoint any ill-will which may A have been harboured by the said witnesses against the appellants. The mere fact that these witnesses belong to Police Department, by itself, cannot be considered a good ground to discard their statements. Needless to add that police officials are as good witnesses as any other witness as held in Feroz Shah v. The State 2002 PCr.LJ 1470.

11. The onward transmission of ten grams sample taken out from the total narcotic material recovered from the appellants to the office of Chemical Examiner is also proved beyond any shadow of doubt. The appellants 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 P.Ws. at the trial in this regard. The reports of analyst received B back were found in positive which has supported the prosecution story as well as recovery of narcotics in this case.

12. The objection of the learned counsel regarding non-compliance of the provision of section 103, Cr.P.C. is also misconceived, inasmuch as section 25 of the Control of Narcotic Substances Act, 1997, c specifically oust the applicability of section 103, Cr.P.C. as held in case of Muhammad Amin v. The State 1999 SCMR 1367 and Abdur Rehman Mubirk v. The State 2000 PCr.LJ 907.

13. We, as a result of the above discussion, have been constrained to hold that the prosecution has successfully brought home the guilt to the appellants 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 appellants did not appear as their own witness as required under section 340(2), Cr.P.C. to contradict the prosecution story which is also fatal to them.

14. As far as quantum of punishment awarded by the learned trial Court is concerned, we have noticed that the appellants are statedly first offenders, which has not been controverted by the other side. Mst. Faulada appellant is an old lady of more than 60 years of age suffering from diabetes and Mst. Nawshada appellant is a poor lady. They appear to be carriers. We, therefore, have found scope for taking lenient view in the matter of their sentences. The sentence awarded to Mst. Faulada is reduced from five years' R.I. to four years' R.I. The sentence awarded to Mst. Nawshada appellant is also reduced from three years' R.I. to two Years R.I. However, the sentence of fine imposed upon them shall remain the same as ordered by the learned trial Court. With the above modification in the sentences, the appeal stands dismissed and the, impugned judgment is maintained and upheld.

H.B.T./519/P Appeal dismissed.