' IJAZ-UL-HASSAN KHAN, J.--- Appellant Mst. Khurshidah Bibi alias Rasheeda Begum widow of Gul Sher, resident of National Abad Tanki, Peshawar has filed instant appeal under section 48 of the Control of Narcotic Substances Act, 1997 challenging the judgment dated 19-5-2004 of learned Additional Sessions Judge-IV/Judge Special Court, D.I. Khan whereby she was convicted under section 9(c) of the Act (ibid) and sentenced to suffer two years' R.I. And fine of Rs,20,000 or in default, to undergo four months further , S.I. With benefit of section 382-B, Cr.P.C.
2. Succinctly narrated the facts of the case are that pursuant to spy information stated to have been received by Kausar Khan, S.H.O. Police Station Yarik on 7-8-2003 that a woman will smuggle/transport narcotics through Bus No,C-1331 Charsadda bound for Karachi, he along with police party laid Naqabandi' on, Police Post, Chunda. In the meanwhile, the said Bus was sighted coming from Peshawar side which was stopped for checking. A woman clad in a Chaddar' being found in suspicious condition, was alighted from the Bus and her search was conducted through lady constable Shabana. The search, of the lady resulted in recovery of three plastic envelopes containing opium which on weighing came to be 3000 grams. Meagre quantity out of the bulk was separated for chemical analysis whereas the remaining was sealed in a separate parcel. On asking, the lady disclosed her name as Khurshidah alias Rasheeda Begum. She was formally arrested. A Murasila (Exh.P.W.2/1) was drafted under section 9 of the Control of Narcotic Substances Act, 1997 and sent to police station for registration of case.
3. The prosecution in order to prove its case against the appellant, produced Khan Badshah (P.W.1), Kausar Khan, S.H.O. (P.W.2), Ghazi Marjan, M.H.C. (P.W.3) and Shabana Nasreen (P.W.4). On close of the prosecution evidence, appellant was examined under section 342, Cr.P.C. Wherein she denied the prosecution allegations and claimed to have been falsely charged on account of having altercated with the police party. 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. The learned trial Judge on conclusion of the trial, finding the appellant guilty of the offence, convicted and sentenced her as mentioned in the earlier part of this judgment.
5. Mr. Saif-ur-Rehman Khan, Advocate appearing on behalf of the appellant contended that there is no tangible evidence on record to implicate the appellant with the commission of crime; that the trial Court has failed to appreciate the evidence on record in its true perspective and has . Passed the impugned judgment in a mechanical manner without application of mind; that there is no independent ocular evidence in the case and the prosecution case hinges on the statements of police personnel, who are highly interested witnesses; and that though according to the prosecution version, the Investigating Officer had prior spy information about the occurrence, yet the formalities of section 103, Cr.P.C. Have not been complied with.
6. As against that, Mr. Muhammad Sharif Chaudhary learned Deputy Advocate-General supported the impugned order of conviction and contended that keeping in view the material on record, learned trial Judge was fully justified to believe the prosecution evidence and pass an order of conviction. He further maintained that though the recovery has been witnessed by police witnesses but there is nothing on record to show that they had any or motive against the appellant to falsely implicate her.
7. It is settled law that the onus to prove guilt is always on the prosecution which is to prove that it is the accused person who has perpetrated the offence and thus, the prosecution is to independently discharge those onus irrespective of any plea taken by the accused. Having gone through the entire evidence on record, we are of the view that the prosecution witnesses are consistent on all material particulars and no contradiction whatsoever could be pointed out by learned counsel for the appellant to cause dent in the prosecution case. However, keeping in view the quantity of contraband opium recovered, the appellant being lady aged about 50/51 years and lodging in the jail ever since her arrest B on 7-8-2003, she deserves leniency in the quantum of sentence. We, therefore, by partially accepting the appeal, curtail the sentence of appellant to the one already undergone by her. The amount of fine of Rs,2,000 is also reduced to Rs,1,000 or in default, to undergo further three months' S.I.
8. We had, by our short order dated 5-10-2004, partially accepted the appeal for reasons to be recorded later. Above are the detailed reasons.