1. Ijaz-ul-Hassan, J.--This criminal appeal is directed against the judgment dated 8.6.2005, passed by Mr. Muhammad Rauf Khan, learned Additional District and Sessions Judge, Peshawar, whereby he convicted the appellant under Section 9(c) of the Control of Narcotics Substances Act, 1997 and sentenced him to suffer three years R.I. and a fine of Rs, 5000/- or in default to undergo further S.I. for one month, in case F.I.R. No, 497 dated 31.7.2003, registered at Police Station East Cantt; Peshawar.
2. The relevant facts forming the background of this matter are, that on 31.7.2003, a police party headed by SI Noor Muhammad, Police Station East Cantt: Peshawar had laid Naka. Bandi' on Khyber Road, Peshawar. At about 1900 hours, a passengers bus\was stopped for checking. A young man having a plastic bag in his hand deboarded from the bus. The police party checked the bag and found the same containing charas. On weighing, charas became two killo grams. The recovered contraband was taken in possession vide recovery memo Ex. PW.2/1 attested by HC Abdullah Khan and FC Muhammad Ayub. A small quantity i,e, four grams were separated out of the recovered material for the purpose of chemical examination and the remaining was sealed into a parcel. On inquiry the accused disclosed his name as Afsar Khan son of Aziz Khan. He was formally arrested and a case was registered against him on the basis of a `Murasila', which was subsequently incorporated into FIR Ex. PA by ASI Muhammad Zaman.
2. 3.SI Noor Muhammad carried out the necessary investigation. SHO Shafiullah Khan submitted the challan before the learned trial Court. Charge was framed. The appellant denied the charged and claimed trial.
3. 4.The prosecution in order to prove its case, produced four witnesses namely, SHO Shafiullah, HC Abdullah Jan, SI Noor Muhammad and ASI Muhammad Zaman. After recording of prosecution evidence, PW Muhammad Ayub was given up being un-necessary and after tendering in evidence chemical examiner's report as Ex. PW.3/2, the prosecution evidence was closed.
4. 5.The accused in his statement recorded under Section 342 Cr.P.C. denied the prosecution allegations and claimed to have been charged falsely. In answer to a question as to 'what is your statement and why you are charged', he answered in the following manner:-- "Actually I am a fruit seller and used to sell fruit near Firdos Cinema. On the day of occurrence two police persons came there and conducted my personal search but nothing was recovered from my possession and later on they demanded money from me, which I refused. Resultantly they took me to the police station in the police mobile and falsely involved me in the present case."
5. 6.The accused pleaded innocence and refused to make statement on oath under Section 340(2)
6. Cr.P.C. or to produce any defence evidence.
7. 7.In support of the appeal, Mr. Gohar Ali Advocate, learned counsel for the appellant contended that the evidence has not been appreciated by the learned trial Court in its true perspective and the judgment is not in accordance with the safe principle of administration of justice; that the appellant was convicted on highly flimsly, doubtful and interested witnesses of the prosecution; that the prosecution evidence was pregnant with serious infirmities and flaws and the same was not sufficient to connect the appellant with the commission of crime; that the provisions of Section 103 Cr.P.C. have been violated at the time of recovery, therefore, the prosecution failed to prove the recovery of charas from the appellant; that there was unexplained delay of seven days in sending samples to the chemical examiner and possibility that the sample was tampered with during this period, could not be ruled out and that the prosecution case as a whole has, therefore, become doubtful. Concluding the arguments, the learned counsel contended that the sentence awarded to the appellant is on higher side and the learned trial judge has acted with impulse and not with a judicial mind, which has resulted in complete miscarriage of justice. To substantiate the pleas, he placed reliance on Asghar All vs. The State (1996 SCM R 1541), Sher Khan vs. The State (2003 M LD 259 Peshawar), Mushtaq vs. The State (NLR 2003 Criminal 225 Peshawar), Johar Ali and another vs. The State (2003 P.Cr.L.J. 680) and Mst. Ajab Sultana and another vs. The State (2003 P.Cr.L.J. 82 Peshawar).
8. 8.Conversely, Pir Liaqat Ali Shah, learned Additional Advocate General appearing on behalf of the State supported the impugned judgment whole heartedly and attempted to argue that prosecution has succeeded to prove its case beyond any shadow of doubt; and that recovery of huge quantity of charas weighing two killo grams from the possession of the appellant was proved by the PWs, statements of whom could not be shattered by the defence in spite of lengthy cross- examination. Denying the contradictions/discrepancies between the statements of PWs, it was submitted that there is no such material contradiction, on the basis of which trial of the case can be said to have been initiated.
9. 9.The prosecution case primarily rests upon the testimony of two important witnesses namely, HC Abdullah Jan (PW.2), SI Noor Muhammad (PW.3) and the positive report of the Chemical Examiner i,e, Ex. PW. 3/2. Both these witnesses have supported the recovery of two killo grams of charas from the possession of the appellant. Their evidence has established that the charas in the above quantity was recovered from the possession of the appellant at the above given date, time and place. Incriminating statements of the prosecution witnesses on oath were enough to connect the appellant with the commission of crime. Defence could not prove as to why police would involve the appellant falsely especially when none of the raiding party had any enmity against him. The prosecution witnesses who were police officials, had made consistent statement on material points and the appellant had failed to point out any discrepancy in their statements.
10. Contradictions pointed out by learned counsel for the appellant are so minor that on the basis of those it cannot be held that trial of the case stood vitiated. Such minor discrepancy, if any, is bound to happen by lapse of time. The crime in question took place on 31.7.2003, whereas prosecution evidence was recorded on 11.4.2005, about one and a half year later, as such, we are not ready to bank upon such minor contradictions to set aside the well reasoned judgment of the trial Court which otherwise is in consonance with the evidence on the file. The learned counsel for the appellant has not urged any rancour or animosity against the police officials/PWs with the appellant. In such like cases no presumption can be drawn that the police witnesses were lier. It is settled law that police witnesses are competent witnesses in the eyes of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate the accused, their statements could not be discarded only because they happened to be employees of police department. The learned trial Court, therefore, has rightly believed their evidence.
11. 10.The plea that independent private persons were not made witnesses to recovery as it was affected from a public place and thus, the entire case of prosecution had collapsed is a so without substance. The evidence of a police personnel cannot be ignored at this stage as a policeman is as good witness as any other person until and unless evidence is brought on record to discredit his evidence. As far violation of Section 103 Cr.P.C. is concerned, Section 25 of the Control of Narcotic Substances Act, 1997 excluded the application of this provision of Cr.P.C. The stance of the appellant that he has been implicated falsely in this case by the police in order to show efficiency has been found to be without any substance. Nothing in support of the same was brought on the record by the appellant to believe that it was actually so.
12. 11.The learned counsel for the appellant contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.
13. 12.Adverting to the objection regarding late dispatch of sample to the laboratory for chemical examination, we find that same is of no consequence and does not cause dent in the prosecution case and make the prosecution story doubtful.
14. 13.The submission of the learned counsel for the appellant, that entire recovered narcotics should have been sent to chemical examiner and lapse of the prosecution in this behalf, should be construed to hold that the appellant is only liable to the extent of four grams only, is equally without substance. Since it is not stated anywhere either in the Control of Narcotic Substances Act, 1997 or the Rules made thereunder as to how much quantity from the seized narcotics should be sent for the purpose of chemical analysis, taking of small quantity for chemical examination, was enough to prove that entire recovered material was contraband. Ali Muhammad and another vs. The State (2003 SCM R 54) and Mst. Anwar Bibi vs. The State (2004 P.Cr.L.J. 692).
15. 14.In view of the above discussion, we find no illegality or infirmity in the impugned judgment warranting interference of this Court. The appeal fails which is hereby dismissed. As regards quantum of sentence, we find that the appellant is a previous non-convict. He is a young man and entire future is in front of him. We, therefore, maintain the conviction of the appellant but reduce his sentence from three years R.I. to one year R.I. and also reduce the fine from Rs, 5000/- to Rs, 2000/- or in default to undergo one month S.I. The appellant shall be entitled to the benefit of Section 382- B Cr.P.C. With this modification in sentence, the appeal stands dismissed.