MUHAMMAD ALAM KHAN, J.---The present revision petition has been moved by State for enhancement of sentence of Siraj Khan accused- respondent, who was charged under section 9(c) of the Control of Narcotic Substances Act, 1997.
2. Briefly stated the facts of the case are that Ghullam Hussain Inspector Legal, Police Station Anti- Narcotics Force D.I. Khan along with Zahar Shah HC, Syed Jehan Shah, Nauroz Khan, Bakhtiar Hussain, Muhammad Ayyaz, Amin Muhammad and Bashir Khan F.Cs. Along with the driver were present in Motorcar No.A-4291 and were checking the smuggling of narcotics. In the meantime a Bus No.1398 Peshawar came from Pezo side which was bound from Bunir to Karachi., which was stopped. On search, two persons occupying seats Nos.37 and 38 of whom one disclosed his name Siraj Khan son of Sahib Rokhan caste Jadoon resident of Gandaf District Sawabi. In his lap there was a blue colour Bag lying which was searched and on search it apparently contained two pairs of clothes and underneath the same were four packets sealed with brown solution-tape, which was recovered and weighed each packet was containing 1250 grams total 5 Kgs charas. The charas was taken into possession and out of which ten grams each was sealed in a separate parcel for chemical analysis, the report of which was in positive and the remaining was separately sealed. The report was sent in the shape of murasila to the Police Station Anti-Narcotics Force D.I.
Khan which was incorporated in the F.I.R. No.9, dated 26-8-2005, time of occurrence was disclosed to be 1800 hours. The person who was occupying Seat No.38 disclosed his name Imtiaz Hussain.
Both of the accused were. Arrested and after completion of investigation, complete challan was put in the Court of Malik Mujtaba Ahmed Judge Special Court C.N.S., Peshawar Camp Court at D.I.
Khan.
3. The learned Judge recorded the evidence for the prosecution and after examining the accused and hearing the learned counsel for the parties and taking the data available on the record acquitted accused Imtiaz Hussain and convicted accused-respondent Siraj vide Case No.11 of 2006 decided on 24-2-2007 and the accused Siraj was convicted, and on taking lenient view was sentenced to imprisonment for the period already undergone, and a fine of Rs.10,000 and in default to undergo further three months simple imprisonment.
4. The State through the Deputy Attorney-General has come up in Revision to this Court under the provisions of sections 435 and 439 of the Criminal Procedure Code. The learned Deputy Attorney- General was heard in this case in detail and with his assistance we have been taken minutely through the record of the case and evidence on the record.
5. The learned Deputy Attorney-General submitted that the prosecution has established the case by producing cogent and convincing evidence on the record and the learned trial Court has also come to the conclusion that the case has been proved against the respondent beyond any shadow of doubt so the learned Court has fallen into an error by awarding the sentence to a period already undergone and a fine of Rs.10,000 or in default thereof to suffer three months' S.I.
6. It was also argued by the learned DAG, that the quantity of contraband charas recovered from the possession of Siraj Khan accused-respondent was weighing five kilo while he was travelling in a bus. It was submitted that once the case was proved against the respondent there was no mitigating circumstance in the case and the sentence of imprisonment and fine is liable to be enhanced.
7. We have gone through the record of the case and the circumstances in which the accused- respondent was held up and the alleged recovery was effected from the personal search of the accused-respondent while travelling in a bus. This aspect of the case has been proved by the prosecution by leading cogent and convincing evidence and that is why the learned trial Court has convicted the accused-respondent and has awarded the sentence of imprisonment and fine as stated above, but as the convict was a young boy of tender age and he had no previous background of involvement in drug trafficking so the learned trial Court has rightly taken a lenient view and this was a mitigating circumstance which convinced the learned trial Court to award a meagre sentence.
8. The judgment of the learned trial Court is well-founded, convincing and is based on sound appreciation of evidence which cannot be interfered with in the instant revision petition.
9. This being the position, there is no force in the present revision petition, which is dismissed in limine. By short order, dated 14-2-2008, we had dismissed this revision, the above are the reasons for the same.