1. ljaz-ul-Hassan, J.--Appellant Akhtar Hussain was tried by learned Judge, Special Court (CNS)
2. NWFP, Peshawar alongwith acquitted co-accused Muhammad Khan and Obaidullah, for an offence under Section 9 of Control of Narcotic Substances Act, 1997. At the conclusion of the trial, vide judgment dated 12.3.2005, the appellant was 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 six months S.I. with benefit of Section 382-B Cr.P.C. Co-accused were, however, acquitted by extending them the benefit of doubt. The appellant feeling aggrieved, has assailed his conviction and sentence by way of filing instant Criminal Appeal No, 215/2005.
2. The prosecution story in brief is, that on receipt of secret information on 20.2.2004 by the officials of Anti Narcotic Force Peshawar, regarding transportation of huge quantity of heroin from `Maga ghair' to Peshawar City through Motor Car with Registration No, B-1535 Bannu, a raiding party consisting of Inspector Samin Jan Khan (PW.1) and others, conducted Waka Bandi' near scheme chowk Kohat Road, Peshawar. In the meanwhile at about 11.30 hours, aforesaid Motor Car was spotted coming from Sheikh Muhammadi side. A signal was given to the driver to stop the car. He did not stop the car and accelerated the speed. The car was chased and forced to stop near scheme chowk Kohat Road, Peshawar. On inquiry, driver of the car disclosed his name as Akhtar Hussain son of Mir Ashgar, appellant in this case. The search of the vehicle led to recovery of heroin concealed under the driver seat wrapped in five black plastic shopping bags. On weighing it became 3 killo and 40 grams. A meager quantity was separated from each packet and sent for analysis. The report of the chemical examiner is in positive. The remaining property was sealed into a parcel. A `Murasila' was drafted and sent to Police Station through FC Iqbal Hussain, which was incorporated into FIR by Moharrir Fidaullah (PW.4).
3. 3.The prosecution in order to prove its case examined four witnesses namely, Inspector Samin Jan Khan (PW.1), FC Matiur Rehman (PW.2), FC Qamar Zaman (PW.3) and Moharrir Fidaullah (PW.4). ASI Abdur Riaz and FC Abdul Wahab were abandoned as being unnecessary.
4. 4.When examined under Section 342 Cr.P.C. the accused-appellant and the acquitted co-accused denied the prosecution allegations and claimed to have been charged falsely. In reply to a question, 'as to what is your statement and why are you charged', accused-appellant stated:-- "I am innocent and am illiterate taxi driver, running taxi for the owner on daily wages, on different places I pick and drop the passengers in my taxi, the alleged recovery is from shopping bag beneath my driving seat, is some passenger left it, so I am not accountable for that. Moreover, from the motor nothing has been recovered from its secret cavities."
5. 5.The accused-appellant opted not to appear under Section 340(2) Cr.P.C. as his own witness. He also led no evidence in defence.
6. 6.The learned trial judge after appraisal of the evidence on record found the appellant guilty of the charge and convicted and sentenced him as noted above.
7. 7.Appearing on behalf of the appellant, Miss Farhana Marwat, Advocate vehemently contended that the complainant of the FIR is the Investigating Officer as well as recovery officer which is sufficient to vitiate the whole investigation of the case; that the alleged recovery has not been witnessed by an independent person, rather officials of the same Department have been cited as witnesses, which is violative of the minimum safe guard provided by law; that there are contradictions and discrepancies in the statements of prosecution witnesses; that sample has been sent to the analyzer after delay of five days that no recovery has been effected from possession of the appellant and that prosecution has totally failed to connect the appellant with the commission of crime. To augment the contentions, reliance has beer. ilaced on Muhammad Hussain vs. State (1990 P.Cr.L.J. 706 Peshawar) anG iviushtaq vs. State (2002 P.Cr.L.J. 1312 Peshawar).
8. 8.Mr. Tariq Khan Kakar, Advocate, learned counsel for ANF refuted the arguments of the appellant and supporting the judgment of the trial Court submitted that prosecution has proved its case beyond any shadow of doubt and the impugned judgment and order of conviction does not suffer from any infirmity or irregularity to vitiate the trial. According to the learned counsel, recovery of huge quantity of heroin was proved by the prosecution witnesses, statements of whom could not be shattered by the defence inspite of lengthy cross examination. Denying the contradictions/ discrepancies between the statements of PWs, it was asserted that there is no such material contradiction, on the basis of which trial of the case can be said to have been vitiated.
9. 9.We have considered the arguments and submissions of the learned counsel for the parties at some length. We have also gone through the record of the case with their help.
10. 10.It is the case of the prosecution that pursuant to authentic information, stated to have been received by the officials of ANF Peshawar, on 20.2.2004, regarding transportation of huge quantity of heroin from tribal area to Peshawar City through Motor Car No,B-1535 Bannu, a raiding party comprising the complainant others, conducted Nake Bandi' near scheme chowk Kohat Road, Peshawar. At about 11.30 hours aforesaid Motor Car was sighted coming from sheikh Muhammadi side. A signal was given to the driver to stop the car but he did not stop the car and accelerated the speed. The car was chased and forced to stop at some distance. The search of the car led to recovery of heroin weighing 3 killo and 40 grams concealed under the driver seat, wrapped in five black plastic shopping bags. A meager quantity out of the bulk was separated and sent to the office of Chemical Examiner for opinion. The report Ex. PW.1/4 is in positive. The prosecution in order to prove the apprehension of the appellant and recovery of contraband material has produced three witnesses, Inspector Samin Jan Khan (PW.1), FC Matiur Rehman (PW.2) and FC Qamar Zaman (PW.3). They have unanimously deposed that the heroin in the above quantity has been recovered from the car in question on 20.2.2004 at 11.30 hours. There is complete harmony in the deposition of prosecution witnesses as regard all the major details of such happening. There has hardly been found any major or material discrepancy in the statements of prosecution witnesses. The witnesses were subjected to lengthy and searching cross-examination but nothing could be extracted by the defence to shatter their veracity. It is an accepted principle of law that when an accused at criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be found baseless altogether. The appellant has produced no evidence in defence to show that he had no concern with the seized property and that the same was planted on him by the official of ANF to earn credit. The evidence regarding the safe custody and dispatch of the parcel of heroin and the remaining recovered from the appellant has established the credibility of the report of the chemical examiner. His evidence, however, has ensured that the parcel of the sample of heroin was dispatched to the expert infact. The third objection regarding late dispatch, is also without substance. It does not seem to have prejudiced the interest of the appellant. The recovery Istands proved through independent and reliable witnesses and fully establishes the prosecution case.
11. 11.The argument of the learned counsel for the appellant regarding various hats simultaneously worn by the Investigating Officer, has also failed to impress us. It is suffice to say, that-there is no legal prohibition for a police II officer nor he is prohibited under the law to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer as laid down in the case of State through A.G. Sindh vs. Bashir and others (PLD 1997 ,SC 408) and Mashal Khan vs. The State (2005 P.Cr.L.J. 254 Peshawar).
12. 12.The contention of the learned appellant's counsel regarding noncompliance of the provisions of Section 103 Cr.P.C., is also without force. It is suffice to observe, that association of two or more respectable persons of the locality was not required as the provisions of Section 24 of CNSA 1997 has excluded the application of Section 103 Cr.P.C. where the recovery was made on a high way or road side or from a running vehicle. It is settled law by the superior Courts that police witnesses are competent witnesses in the eyes of law and unless it could be demonstrated that police officials have any motive or reasons to falsely implicate the accused, their testimony could not be discarded for the reason that they happened to be employees of police department. Muhammad Amin vs. State (1999 SCM R 1367), Abdur Rehman Mubarak vs. State (2000 P.Cr.L.J. 907), Mian Gul Bacha Khan and another us. The State (PLD 2004 Peshawar 246) and Feroz Shah vs. State (2002 P.Cr.L.J. 1470).
13. 13.The learned counsel for the appellant contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, she has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which does not affect the validity of the trial.
14. 14.The result of the above discussion is that the case against the appellant stands fully proved in the most convincing and logical order. Even a single ambiguity or doubt could not be convincingly urged in the entire prosecution version and the trial. The authorities referred to by the learned counsel for the appellant are aptly not applicable to this case for its distinguishable facts and circumstances and do not promote the appellant case. The appeal fails which is hereby dismissed.
15. As regards quantum of sentence, we feel that the sentence awarded to the appellant is on higher side. The sentence does not commensurate with, quantity of heroin recovered. We, while maintaining the conviction of the appellant, reduce his sentence from 5 years R.I. to three years R.I. and also reduce the fine from Rs, 50,000/- to Rs, 20,000/- or in default to undergo four months Si. The benefit of Section 382-B Cr.P.C. shall remain