' SYED SAJJAD HUSSAIN SHAH, J.--- This judgment will dispose of Criminal Appeal No,199 of 2003 and Criminal Appeal No,224 of 2003, as common question of law and facts is involved in these matters.
2. Appellants Mitha Khan and Zahid Anwar through the said appeals have challenged the vires of judgment, dated 24-4-2003 passed by the learned Additional Sessions Judge, Attock in a case F.I.R.
No,31, dated 8-2-2003 under section 9(c) of the Control of Narcotic Substances Act, 1997 registered with Police Station Hazro whereby he convicted the appellants under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life each with a fine of Rs,50,000 each and in default whereof to further undergo two years simple imprisonment each.
3. The prosecution case as per F.I.R. Is that on 8-2-2003 Masood Bashir Warraich, Excise Inspector along with other police officials was present near Silver Flour Mills in connection with checking of narcotics when an informer informed him that a Car bearing No,IDH978 is coming from Peshawar side carrying narcotics, whereupon he formed Nakabandi there. In the meantime, police party headed by Ikhlas Khan, S.-I. Reached there by chance. At about 3-00 a.m. Said car came, which was stopped by the excise team for the purposes of checking. Two persons, sitting in the car, disclosed their names as Zahid Anwar, who was sitting on driving seat whereas Mitha Khan on front seat of the car. On search, underneath the rear seat of the car 15 packets of Charas were recovered which on weighing was found 21 kilograms Charas. The complainant separated 10 grams Charas for the purposes of chemical analysis, prepared two sealed parcels and took into possession Charas and sample parcel through recovery memo. (Exh.P.B.), attested by the P.Ws. He drafted complaint Exh.P.A./1 and handed over the accused, case property and complaint to Ikhlaq Khan, S.- I. For investigation.
4. After completion of investigation, the appellants were found guilty and a report under section 173, Cr.P.C. Was submitted in the trial Court. The learned Court formally charged the appellants to which, they pleaded not guilty and claimed trial.
' 4-A. The prosecution in order to prove its case produced six witnesses in all namely Javed Akhtar, S.-I. (P.W.1), Ansar Iqbal, H.C. (P.W.2), Zafar Ali Shah, C (P.W.3), Masood Bashir Warraich Excise Inspector (P.W.4), Muhammad Salim, Excise Constable (P.W.5) and Ikhlaq Khan, S.-I. (P.W.6) and to strengthen its case also tendered documentary evidence including the report of Chemical Examiner. The statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded their innocence, denied the recovery of Charas and stated that the P.Ws .Have deposed falsely against them.
' Appellant Mitha Khan neither opt to produce any defence evidence nor examine himself as his own witness under section 340(2), Cr.P.C. Appellant Zahid Anwar produced a copy of report under section 173, Cr.P.C. As Exh.D.A., copy of order passed by the learned Additional Sessions Judge, Attack in an application for pre-arrest bail Exh.D.B. And copy of said application as Exh.D.C. He did not opt to examine himself under section 340(2), Cr.P.C. And closed his defence. The learned trial Court after conclusion of the trial convicted and sentenced the appellants as mentioned above.
5. It is contended by the learned counsel for the appellant that there are serious contradictions in the statements of the P.Ws. Which make the prosecution case highly doubtful; Charas was not recovered from the exclusive possession of the appellants; no offence under section 9(b) of the Control of Narcotic Substances Act, is made out from the facts and circumstances of the case; the sentence is harsh and severe; the learned trial Court miserably failed to prove its case beyond any shadow of doubt.
6. Conversely, the learned counsel for the State opposed the instant appeal vehemently.
7. We have heard the learned counsel for the parties and gone through the record with their assistance.
8. The prosecution has substantiated its case through the production of oral as well as documentary evidence. P.W.4 and P.W.5 being members of the police party were present near Silver Flour Mills. At 3-00 a.m. Who apprehended the appellants while sitting in a Car No,IDH978, which was coming from Peshawar and on search from underneath the rear seat of the car 15 packets of Charas were recovered, which on weighing, was found 21 kilograms. The statements of P.W.4 and P.W.5 have been reappraised and we do not find any material contradiction either in the prosecution version as given in the F.I.R. Or deposition made by these witnesses.
9. The prosecution witnesses were cross-examined but nothing has been elicited from their statements. The appellants got recorded their statements under section 342, Cr.P.C. And did not appear as their own witnesses on oath under section 340(2), Cr.P.C. Whereas Zahid Anwar appellant produced copy of report under section 173, Cr.P.C. As Exh.D.A., copy of order passed by the learned Additional Sessions Judge, Attock in an application for pre-arrest bail as Exh.D.B. And copy of the said application as Exh.P.C. Which are not helpful for the defence. The submission made by the learned counsel for the appellants that the recovery has been effected in violation of section 103, Cr.P.C. Is also devoid of any force as admittedly, the recovery of narcotic substance has been made in view of the provisions of section 25 of the Control of Narcotic Substances Act, 1997. The said provisions of Special Statute specifically exclude the application of section 103, Cr.P.C. It has now been settled by the Honourable Supreme Court of Pakistan that police officials are equally competent witnesses as are private and their testimony cannot be discarded merely for the reasons that they are police employees. The case of Muhammad Azam v. The State PLD 1996 SC 67 can be referred in this context. We have also found from the record that the evidence of recovery in respect of the quantity of narcotic substance recovered and for sending it for chemical analysis, is consistently established by the prosecution witnesses. The report of the Chemical Analyst in respect of the substance is positive.
10. The upshot of the above discussion is that the appellants have failed to make out a case for acquittal but adverting to the quantum of sentence, we find that the appellants are first offenders and have no previous record , therefore, their sentence is reduced to rigorous imprisonment for ten years from life imprisonment whereas the payment of fine is maintained, in default whereof to further undergo one year simple imprisonment with benefit of section 382-B, Cr.P.C.
12.(sic) With the above modification, both the appeals i.e. Criminal Appeal No,199 of 2003 and Criminal Appeal No,224 of 2003 are dismissed.