' IJAZ-UL-HASSAN KHAN, J - This criminal appeal has been directed against the judgment dated 25- 8-2005, whereby the learned Judge, Special Court (CNS), Peshawar Camp Court D.I. Khan, convicted appellant Ghuncha Gul under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to R.I. For four years' with a fine of Rs,50,(X)0 or in default of its payment to undergo further S.I. For 3 months. Benefit of section 382-B, Cr.P.C, was, however, extended to the appellant.
2. On receiving a tip from a spy information on 25-5-2005 regarding smuggling of huge quantity of charas to Karachi via D.I. Khan in Bus bearing Registration No,BE-3175, a raiding party under the supervision of Inspector Ghulam Hussain (P.W.3), conducted 'Naka bandi' at Dera Bannu Road Near Zakori Hotel. In the meanwhile, at about 1730 hours, aforesaid bus was sighted coming from Pezu side. The bus was stopped. A passenger, namely, Ghuncha Gul son of Faqir Gul (30'/32), resident of 'Rashaka', District Nowshera, sitting in the bus was deboarded. On inquiry regarding the narcotics, he disclosed that contraband charas has been concealed by him in a wooden cot, placed by him on the roof of the bus. The cot was brought down and its parts were opened with screw driver. The parts of the cot led to recovery of 14 slabs of charas, 7 slabs from each part. The charas was weighed and found 7 kilo grams. A meagre quantity i.e, 10 grams each was separated from the bulk for the purpose of examination and remaining was sealed into parcel. An Identity Card and a cash amount of Rs,750 were secured from the possession of the accused. A case was accordingly registered against him under section 9(c) of the Control of Narcotic Substances Act, 1997, vide F.I.R.
No,8 dated 25-8-2005, Police Station, ANF D.I. Khan.
3. The learned trial Judge on receipt of challan framed charge against the appellant, to which he pleaded not guilty and claimed trial.
4. During trial, the prosecution examined four witnesses in all, namely.
' F.C. Muhammad Ayaz (P.W.1), F.C. Faqir Muhammad (P.W.2), Inspector, Ghulam Hussain (P.W.3) and H.C. Syed Jehan Shah (P.W.4), and relied on the report (Exh.P.W.3/5) of the Chemical Examiner, Peshawar.
' The appellant in his statement recorded under section 342, Cr.P.C, denied the prosecution allegations and claimed to have been falsely charged. He neither appeared as his own witness on oath as required under section 340(2), Cr.P.C, nor produced any evidence in defence.
6. The learned trial Judge on over all assessment of the evidence, convicted and sentenced the appellant as mentioned and detailed above, concluding that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt.
7. . Mr. Rehan Saeed, Advocate for the appellant contended, inter alia, that the learned trial Court has misread and misappreciated the evidence in its true perspective; that the conclusion drawn regarding the ownership, possession of the contraband charas by the Court below is erroneous; that the alleged recovery is made in utter disregard to the provision of section 103, Cr.P.C.; that the trial Court has convicted the appellant on presumptions; that the evidence on record is not enough to base conviction of the appellant thereon; that statements of P.Ws. Ghulam Hussain, S.H.O, and Syed Jehan Shah H.C. Are contradictory and are not confidence-inspiring and that the conviction of the appellant on these statements is not justified.
8. Chaudhary Muhammad Sharif, learned D.A.-G. For the State, on the other hand, supported the impugned judgment whole heartedly with the assertion that the recovery of huge quantity of charas from the appellant was proved beyond any shadow of doubt and the appeal merits outright dismissal.
9. We have heard at length arguments of learned counsel for the parties with reference to the material on record.
10. The apprehension of the appellant from the bus under reference has not been denied. The prosecution in order to prove the recovery of contraband charas at the pointation of appellant from the parts of the wooden cot, has produced Inspector, Ghulam Hussain (P.W.3) and F.C. Syed Jehan Shah (P.W.4), Both these witnesses are consistent on material points and no contradiction whatsoever could be pointed out by learned counsel to cause dent in the prosecution case.
Statements of both these witnesses tally with each other. These witnesses were subjected to fairly lengthy cross-examination but they faced the same successfully. No doubt, it is true that both the witnesses are police officials but there is nothing on the record to show that they had any feeling or ill-will or motive to falsely implicate the appellant. In cross- examination no suggestion was given to the P.Ws, that they had deposed falsely due to enmity. The discrepancies pointed out by the learned counsel are minor in nature and do not damage the prosecution case in any manner. As per report of the Chemical Examiner (Exh.P.W.3/5), the recovered substance has been reported to be charas.
11. Learned counsel for the appellant has also referred to section 103, Cr.P.C, and submitted thah this provision has been violated by the police inasmuch as respective inhabitants of the locality were not called upon to join the recovery proceedings. This objection is also not entertainable as under section 25 of the Control of Narcotic Substances Act, 1997, the applicability of section 103, Cr.P.C, has been excluded.
12. For the foregoing reasons, the prosecution has proved the guilt of the appellant beyond any reasonable doubt and has successfully discharged its burden through consistent and confidence- inspiring evidence. The appellant had made no endeavour to rebut the prosecution version by discharging his burden under section 29 of the CNSA. The mere denial and charge of pleading innocence without substantiating his plea through cogent evidence is not sufficient to secure acquittal. The judgment is based on correct application of law and proper appreciation of evidence, therefore, we see no reason to interfere in the finding of the learned trial Court. As regards reduction in the sentence, we find that the appellant is a young man of 30/32 years of age.
The entire future is before him. The possibility of the appellant having acted as carrier cannot be ruled out. Moreover, the reduction in sentence has not been opposed by the opposite side.
' In view of the above, the conviction of the appellant is maintained and the sentence is reduced from 4 years' R.I. To 2 years' R.I and fine from Rs,50,000 to Rs,25,000 or in default to undergo one month S.I. Benefit under section 382-B, Cr.P.C, shall remain available to the appellant. With this modification in the sentence, the appeal is dismissed.