Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed, against the judgment dated 26.4.2005 passed by the Division Bench of Peshawar High Court, whereby criminal appeal filed by petitioners against the conviction and sentence of life imprisonment with fine of Rs, 25,000/- awarded to each of them by the learned Sessions Judge, Kohat exercising power of Special Court established under the Control of Narcotics Substances Act, 1997, was dismissed.
2. The short facts in the background are that Dost Muhammad Khan, S.I (PW.3) on the instruction of SSP, Kohat having arranged a raiding party on 22.8.2001 started checking of vehicles coming from Kohat side, at Khushal Garh and on interception of a flying coach No, 2573-BUC at about 10.30 am, recovered opium weighing 5 kg and charas weighting 6 kg, from the possession of Mst. Perveen Bibi and similarly opium weighing 7 kg and charas 3.50 kg from Mst. Kausar Perveen, petitioners herein who were traveling in the company of Muhammad Riaz (petitioner) husband of Mst. Parveen and brother of Mst. Kausar. The contraband charas and opium was being carried by these two petitioners in jacket type bandoliers worn by them underneath their shirts and Incharge raiding party having secured 4 grams from each block of recovered charas and opium in four separate sealed parcels sent the same to the chemical examiner for analysis and as per report of chemical examiner, the parcels contained opium and charas. The prosecution in proof of the charge against the petitioners, produced Dost Muhammad Khan, S.1. (PW-3) and Adil Niaz, Head constable (PW-4) who were members of raiding party and tendered, the report of chemical examiner, sent by the Forensic Science Laboratory NWFP, Peshawar, in evidence. Munawar Khan, ASI (PW-2), on the complaint prepared by Dost Muhammad Khan (PW-3), registered the case and final report was submitted by Mosam Khan, SHO (PW-1) whereas, Jehangir Khan, another member of raiding party and marginal witness of recovery memo, was examined as Court witness. The petitioners in their statements under Section 342 Cr.P.C. denying the charge, pleaded innocence and the learned trial Judge having found them guilty of the charge for keeping in their possession huge quantity of narcotics while traveling in the public transport, convicted and sentenced them as aforesaid. The appeal filed by the petitioners in the High Court, was dismissed vide impugned judgment and they have filed this joint petition from jail before this Court.
3. Learned counsel for the petitioners pointing out contradiction and discrepancies in the statements of witnesses, contended that except the statement of the official witnesses, no other evidence, oral or documentary, was brought on record in proof of the charge so much so the driver or conductor of the vehicle or any passenger, was not examined in proof of the fact that petitioners while traveling in coaster, were arrested which would make the alleged recovery of charas and opium from the personal search of the two female accused doubtful and mere fact that Muhammad Riaz being closely related to them was traveling in their company, would not give rise to the presumption that he was responsible for transporting narcotics. Learned counsel argued that it is clear from the evidence that the opium and charms allegedly recovered from the possession of the petitioners was in the form of slabs and weight of one slab being not more than one kg, the samples of charas and opium prepared for chemical examiner, pertained only to one kg of charas and one kg of opium recovered from each female accused and .as per report of chemical examiner, two kgs of narcotics would be deemed to have been recovered from the possession of each female accused, therefore, the sentence of life imprisonment was excessive.
Learned counsel appearing on behalf of State has contended that notwithstanding the discrepancies and contradictions pointed out by the learned counsel for the petitioners in the statement of witnesses, the recovery of narcotics from the petitioner was proved beyond any doubt and narcotics exceeding one kg would bring the case within the ambit of Section 9(c) of Control of Narcotic Substances Act, 1997, providing the sentence of death or imprisonment for life or imprisonment for a term which may extend to 14 years R.I with fine. The learned counsel, however, has not been able to satisfy us that the sentence less than life imprisonment could not be imposed in the present case.
4. The perusal of statements of the witnesses, namely Muhammad Khan, S.I. (SHO) who conducted raid, Adil Niaz, Head Constable (PW-4) and Jehangir Khan, Court Witness, who was also member of raiding party and marginal witnesses, of recovery memo, would show that contention of learned counsel for the petitioners that out of total recovered charas and opium, only two kg of charas and two kg of opium as per report of chemical examiner, was proved as narcotics, is not without substance. Dost Muhammad, SI (PW-3) has stated that the recovered charas and opium was in blocks whereas, Adil Niaz, Head Constable stated that it was in the form of slabs and Jehangir Khan, Court Witness has said nothing that in what form the charas and opium was recovered. The contraband charas and opium in the form of blacks may not be conveniently carried in the bandolier, rather as stated by Adil Niaz (PW-4), the recovery of the charas and opium would certainly be in the form of slabs. It was mentioned in the complaint as well as in the recovery memo prepared by Dost Muhammad (PW 3) that opium and charas was recovered in blocks and 4 grams from each block was taken for chemical examination whereas in his statement in the Court while deposing that four grams of charas and four grams of opium was taken from each piece of recovered charas and opium he made an attempt to improve his statement to cover the lacuna in the prosecution case and material contradiction in the evidence. The perusal of record would show that learned trial Judge as well as the Learned Judge in the High Court without taking notice of the above defect in the prosecution case, proceeded to determine the quantum of punishment on the basis of allegation of recovery of narcotics more than 10 kg from each female accused and consequently, sentence of life imprisonment was awarded to all the three petitioners with the consideration that, they were found transporting about 23 kg of the narcotics whereas the detail analysis of the evidence would lead to an irresistible conclusion that only 4 kg of charas and opium was proved as narcotics. It is also evidence on the record that female accused were carrying narcotics with them at the, instance of Muhammad Riaz who was accompanying as guard being main beneficiary of the narcotics.
5. In the light of foregoing reasons, we while taking into consideration that out of total recovered charas and opium, a quantity of two kg of charas and two kg of opium was proved as narcotics, maintain the conviction of petitioners under Section 9(C) of Control of Narcotics Substances Act, 1997 with fine imposed upon them but keeping in view the circumstances of the case in totality, we are inclined to reduce their sentence of imprisonment. This petition is therefore converted into an appeal and allowed with reduction of sentence of life imprisonment awarded to Muhammad Raiz to 14 years R.I., whereas the sentence of the petitioners namely, Mst. Perveen Bibi and Mst. Kausar Perveen is reduced to R.I for 10 years each. The sentence of petitioners in default of payment of fine is also reduced from 1 year to 6 months and they shall be entitled to the benefit of Section 382-B Cr.P.C.
6. With the above reduction in the sentence, this appeal is partly allowed.