' IJAZ-UL-HASSAN KHAN, J.---Maqsood Akbar, appellant has filed instant Criminal Appeal No,64 of 2006, challenging the judgment dated 19-1-2006, passed by Mr. Abdur Rehman 'Khan, Judge Special Court (C.N.S.) N.-W.F.P., Peshawar, whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer one year R.I. And fine of Rs,50,000 or in default thereof to suffer further six months' S.I. Benefit under section 382-B, Cr.P.C.
Was, however, extended to the appellant.
2. Precisely stated the facts of the case of the prosecution are, that on 15-6-2004, Inspector Arbab Ghias, complainant (P.W.3) along with other officials of A.N.F. Peshawar, was present near Mera Pekai Jangali Road, in connection with checking, when a Motor Car bearing No,MNG-1444 was sighted coming from `deh' Mashokhel Peshawar. The car was stopped and searched but nothing incriminating was recovered. However, a man sitting on front seat of the car was found having a black shopping bag in his hand. The bag was opened. It contained opium wrapped in four packets.
The opium was weighed and found 1900 grams. Out of the same four grams each were separated for chemical analysis which were reported as positive by the Chemical Examiner. The remaining was sealed into parcel. A memo. Was duly prepared to this effect and signed by the marginal witnesses. On inquiry, the accused disclosed his name and parentage as Maqsood Akbar son of Said Akbar, resident of Babakhel Prang, District Charsadda. The accused was formally arrested and a `murasila' was drafted, on the basis of which F.I.R. No,19 dated 15-6-2004, under section 9(c) of the Control of Narcotic Substances Act, 1997, was registered at Police Station, Anti-Narcotics Force, Peshawar. After completion of investigation, challan was submitted against the accused in Court, to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution produced four witnesses, namely, Inspector Samin Jan Khan (P.W.1), Moharrir Fidaullah P.W.2, Inspector Arbab Ghias Ahmad P.W.3, F.C. Abdul Wahab P.W.4 and abandoned F.C. Mati-ur-Rehman being unnecessary.
4. The accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations, pleaded innocence and false involvement. Anyhow, he did not deny his arrest on 15-6- 2004 at 1400 hours, near Mera Pekai Jangali Road, while travelling in taxi Motor Car bearing No,MNG-1444. It was stated in defence that on the day, of occurrence, a taxi was hired by him for village Mashokhel, to visit his relatives. On the way, the Motor car was checked and from possession of the driver, some contraband were recovered. The actual culprit (driver of the car) was left free and instead he (accused) has been involved in the case. The accused, however, did not opt to be examined on oath nor he produced any evidence in defence.
5. We have heard Mian Mohibullah Kakakhel, Advocate for the appellant and Mr. Muhammad Tariq Kakar for ANF and perused the record with their assistance.
6. Learned counsel for the appellant vehemently contended that there was no judicial evidence on record which could connect the appellant with the guilt; that the appellant was convicted on highly flimsy, doubtful and interested witnesses of the prosecution; that the requirements of section 103, Cr.P.C. Were seriously violated as no independent and disinterested witness from the locality was associated with the recovery proceedings and that there are contradictions and discrepancies in the statement of prosecution witnesses, which make the prosecution case highly doubtful.
7. Learned counsel appearing on behalf of Anti-Narcotic Force, on the other hand, supported the judgment of the trial Court and maintained that prosecution has succeeded to prove its case against the appellant beyond any shadow of doubt and appeal merits outright dismissal.
8. At the conclusion of trial, the appellant having been found guilty, was convicted and sentenced, as stated and detailed in para 1 of this judgment.
9. The prosecution in order to prove the apprehension and recovery of the opium from possession of the appellant has produced Inspector Arbab Ghias Ahmad P.W.3, complainant in this case and F.C. Abdul Wahab P.W.4 and the positive report of the Chemical Examiner Exh.PW.3/4. Both these witnesses have supported the recovery of 1900 grams opium from the possession of the appellant.
Their evidence has established that the opium in the above quantity was recovered from the possession of the appellant at the above given date, time and place. Both the witnesses have demonstrated complete unanimity on material points and the appellant has failed to point out any discrepancy in their statements. Contradictions highlighted 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. It is true that Inspector Arbab Ghias Ahmad and F.C. Abdul Wahab are officials of Anti-Narcotic Force but it is equally true that they have no reason or motivation for false implication. The learned counsel for the appellant has not argued any rancour or animosity against these witnesses with the appellant. The mere saying of the defence that the P.Ws. Being official witnesses are interested, cannot be accepted as true one to discard the testimony of the P.Ws and to declare them as a false witness only on this score in the absence of any other source of evidence showing that either the P.Ws were having any malice against the accused or they due to certain solid and material ulterior motives were bent upon to involve an innocent person in this case.
10. Insofar as the prosecution case is concerned, it would be seen that. P.Ws. Have fully corroborated each other. It is settled principle of law that official witnesses are as good as any unless mala fide intention is established by the accused which as observed above, he has failed to accomplish. So also it would be seen that per section 25 of the C.N.S. Act, section 103 of the Cr.P.C.
Pertaining to search and seizure have been excluded. Reliance in this regard can be placed on the case of Muhammad Hanif v. The State 2003 SCM R 1237.
11. Adverting to the objection regarding delay in sending of the sample, it would be seen that recovery was made on 15-6-2004, contraband opium was sent to the Laboratory on 18-6-2004 and report is dated 29-6-2004. However, it would be seen that no questions were asked in cross- examination of the P.Ws. As to whether the case property produced in case was tampered with or the sample thereof was not sent to the Chemical Examiner for testing purposes. Consequently, we are of the view that mere delay in sending the sample is insignificant in the facts and circumstances of the case. Muhammad Ali v. The State 2002 PCr.LJ 976 and Gharibullah v. The State 2002 YLR 3822.
12. The learned counsel for the appellant contended that there were 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 do not affect the validity of the trial.
13. The recovery evidence supported by the Chemical Examiner report is beyond doubt and confidence-inspiring. The appellant had not challenged the nature of recovery substance being opium or narcotics before the trial or this Court. The onward transmission of 4 grams sample taken out of the total narcotics' material recovered from possession of the appellant, to the office of Chemical Examiner is also proved beyond any shadow of doubt. The report of the Analyst received back is found in positive which has supported the prosecution story as well as recovery of narcotics in this case. Against the above case of the prosecution, while the plea of defence as set up and advanced by the accused in his statement recorded under section 342, Cr.P.C. In the absence of any other piece of evidence in support of it and non-option of the accused to depose on oath in terms of section 340(2) Cr.P.C. In no way can be considered a solid, convincing and appealable defence, sufficient to rebut the entire case of prosecution which as discussed above, stands on material evidence.
' For what has been discussed above, we find that the impugned judgment is based on correct application of law and proper evaluation of evidence and, therefore, we would maintain the same insofar as the conviction is concerned. However, we find that the fine is on higher side. The same is reduced from Rs,50,000 to Rs,40,000 or in default thereof to suffer 4 months' S.I. With this modification in fine, the appeal fails, which is hereby dismissed.