1. Ijaz-ul-Hassan Khan, J.--The appellant namely Sartaj Ali has filed instant Criminal Appeal No, 311/2005 to call in question the soundness of judgment dated 29.4.2005, rendered by learned Sessions Judge/Judge Special Court, Nowshera, in Hadd Case No, 46 of 2004, whereby the appellant has been convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer 6 years R.I. alongwith a fine of Rs, 50,000/- or in default to undergo one year further R.I. Benefit of Section 382-B Cr.P.C. was, however, extended to the appellant.
2. 2.Shortly narrated the facts, relevant for the disposal of this appeal are, that on 27.4.2004 PW Libas Khan, SHO Police Station, Akora Khattak, complainant in this case, was on routine `gasht when he received the information that one person present at Khair Abad bus atop was in possession of gas cylinder, in which there was charas and he was waiting for the bus for going to Rawalpindi.
3. Pursuant to this information, the SHO alongwith police party hurriedly rushed to the spot and apprehended the said person alongwith gas cylinder. On asking the accused introduced himself as Sartaj Ali son of Aman, resident of Meura Killay, Police Station Daudzai, District Peshawar and informed the police that he was the owner of the gas cylinder. The gas cylinder was cut with the help of gas welder and charas was recovered from the cylinder. The charas was weighed and found 6000 grams. A meager quantity i,e, 5 grams was separated and sealed into a parcel while the remaining was sealed in another parcel. The sample obtained was sent to Chemical Examiner for opinion and report. The report Ex. PC is in positive. The accused was formally arrested and a case was registered against him under Section 9 of the Control of Narcotic Substances Act, 1997.
4. After completion of investigation, challan was submitted against the accused in Court to which he did not plead guilty and then the trial of the case commenced against the accused.
5. 3.The prosecution at the trial examined 4 witnesses in all and abandoned PW Subhan Shah being unnecessary. The report of the Chemical Examiner Ex. PB was tendered in the evidence.
6. 4.The appellant in his statement under Section 342 Cr.P.C. denied the allegation of recovery of the charas from him and in reply to a question "as to what is your statement and why are you charge", stated:-- "I am innocent and have been falsely roped by the I.O. in the instant case. As a matter of fact on 27.4.2004, I was enroute to Rawalpindi and was in possession of some Crockery including two irons, two tarmas and one TV, which I was carrying for my aunt at Rawalpindi. At about 5.00 p.m. the bus was intercepted by the police officials and they were demanding from me the aforementioned Crockery, which I refused, hence the instant case. It is pertinent to mention that the investigation officer was not at all present on the spot. There are material contradictions in the statements of all the alleged PWs, inordinate delay in the FSL report. The Moharrir has not been examined by the prosecution, who allegedly sent the sample to the FSL, which uproots the very case of the prosecution."
7. 5.He, however, did not opt produce evidence in his defence and to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
8. 6.Mr. Astaghfirullah Advocate, appearing on behalf of the appellant contended with force that there is no evidence on the file connecting the appellant with the offence charged; that there are major discrepancies/contradicitons between the statements of prosecution witnesses, as such, conviction cannot be maintained on such evidence; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of Section 103, Cr.P.C.; that there is inordinate delay in sending the alleged sample to the FSL and that since entire recovered contraband was not sent for chemical examination, the appellant could only be punished under Section 9(b) of the Act for quantity examined by the Chemical Examiner. Status of the PWs to depose against the appellant in their official capacity was also brought under challenge on the ground that they being subordinates to the complainant/Investigating Officer, had falsely implicated the appellant just to earn credit. The learned counsel further contended that there is no independent witness to support the prosecution version. The Investigating Officer has not examined the welder who had allegedly opened the cylinder nor his name is figured anywhere on the record. Concluding the arguments, the learned counsel maintained that these facts make the case against the appellant not above doubt and that in any case his sentence is severe and the same may be reduced.
9. 7.Pir Liaqat Ali Shah, learned Additional Advocate General, on the other hand, supported the impugned judgment, contending that the prosecution evidence on the record has fully brought home the guilt to the appellant beyond any shadow of reasonable doubt; that there is no material discrepancy at all inter se the statements of the recovery witness and the Minor, if any, the same hardly cast any adverse effect upon the prosecution case; that provisions of Section 103 Cr.P.C. are inapplicable and that the leniency has already been shown to the appellant by the learned trial Court in the matter of sentence to him and that in any case the conviction and sentence awarded to the appellant is perfectly justified in view of the evidence on the record.
10. 8.We have heard in detail the arguments and submissions of learned counsel for the parties. We have also gone through the material on file with their assistance.
11. 9.The prosecution in order to prove the charge of the recovery of charas in the above quantity from the appellant has examined two important witnesses, namely, LHC Hastam Khan (PW.3) and SHO Libas Khan (PW.4). They both unanimously have deposed that the charas in the above quantity has been recovered on 27.4.2002 at 22.30 hours at bus stop G.T. road Kahir Abad. There is complete unanimity in the deposition of two as regards all the major details of the case. There has hardly been found any major or material discrepancy creating dent in the prosecution story.
12. Contradictions pointed out by the 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 and at the same time, recovery of huge quantity of charas, cannot be doubted on the basis thereof. Such minor discrepancy, if any, is bound to happen by lapse of time. No doubt, it is true that LHC Hastam Khan (PW.3) has contradicted ASI Said Rehman (PW.2) qua receipt of the charas in the police station but this appears to be an obliging concession made for reasons not far to seek. In the circumstances, we are not ready to consider such minor contradictions to set aside the well reasoned judgment of the trial Court which otherwise is supported with the evidence of the file. Similarly, the application of Section 103, Cr.P.C. has been excluded by Section 25 of the Control of Narcotic Substances Act, 1997, which has the over riding effect. The superior Courts have held time and again that Government employees/police witnesses are reliable like the private witnesses unless they are proved to have some enmity against the accused. Muhammad vs. State (1999 SCM R 1367).
13. 10.Adverting to the argument 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 5 grams only, which falls within the mischief of Section 9(b)
14. CNSA, is not tenable. Taking of small quantity in the instant case out of the entire bulk consisting of one block for chemical examination, was enough to prove that entire recovered material was contraband, hence this stance of the appellant has no substance in it.
15. 11.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 not `charas' or narcotics before the trial Court or this Court. Neither the parcel of recovered narcotics material had been objected to have been tampered with nor it was demanded by the appellant to open this parcel in Court to substantiate that it was other than the narcotics material. The onward transmission of 5 grams sample taken out of the total narcotics material recovered from the gas cylinder owned by 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.
12. In his statement recorded under Section 342 Cr.P.C., the, appellant has taken a specific plea that on 27.4.2004, he was waiting for bus at Kahir Abad stop to go to Rawalpindi. He was in possession of some crockery including two irons, two thermos and one Television. He was apprehended by the police officials. They demanded from him the mentioned articles. He refused to grease palm of the police officials owing to which he was falsely implicated in this case.
16. The plea of the appellant is unfounded. It appears to be an after thought. Nowhere he stated before any higher police authority that the appellant had been involved falsely in this case and charas was planted upon him. This be halted stand of the appellant is not worth reliance. The mere assertion of the appellant that he was implicated in the case falsely on account of his refusal to abide by the wishes of the police officials, without a positive attempt on his part to substantiate the same is of no consequence. A person raising a specific plea is required to prove the same through cogent and positive evidence. In the present case no such evidence is forthcoming.
14. In view of the above discussion, we find no illegality or infirmity in the impugned judgment warranting interference of this Court. 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 6 years R.I. to 4 years R.I. and also reduce the fine from Rs, 50,000/- to Rs, 20,000/- or in default to undergo two months 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.