Muhammad Alam Khan, J.--This appeal filed under Section 48 of the Control of Narcotic Substances Act 1997, is directed against the judgment dated 24/7/2007 passed by the learned Judge, Special Court (CNS) Peshawar Camp D.I. Khan in case FIR No, '6 dated 17/6/2006 under Section 9 (C) CNSA of Police Station ANF D.I. Khan, whereby the appellant, Fazal-ur-Rahman, has been convicted and sentenced to ten years rigorous imprisonment with payment of fine amounting to Rs, 80,000/-, in default to suffer three months simple imprisonment.
2. The prosecution case as gleaned from the report lodged by Inspector Arbab Ghiyas Ahmad on 17/6/2006 at 1800 hours is to the effect that on the same day he alongwith Anti-Narcotics Force party, duly armed with Kalashnikovs, was present near Commissioner Bagh on Dera-Bannu road for checking narcotics when, in the meanwhile, Flying Coach No, 2277-C/D.I. Khan coming from Bannu side was stopped for checking. A person in suspicious condition sitting therein having a bale wrapped in white sheet in his lap was deboarded therefrom who disclosed his name as Fazal-ur- Rahman son of Ghazi Marjan. resident of Mohallah Zahid Abad, Serai Naurang, District Lakki Marwat.
When searched, the bale contained five packets of pukhta charas, each weighing one kilogram.
Ten grams from each packet were separated for chemical analysis while the remaining were sealed in live parcels. From personal search of the accused, his National Identity Card and a Mobile phone were also recovered. He was, therefore, booked for the offence vide FIR mentioned above.
3. After completion of investigation, complete challan was put against the accused in Court where he was formally charge sheeted but he did not plead guilty. Therefore, the prosecution in order to prove its case against the accused produced Muhammad Ayub Moharrir, ANF D.I. Khan as PW. 1, Muhammad Bakhsh FC as PW.2, Arbab Ghias Inspector ANF as PW.3 and Falak Naz FC ANF as PW 4.
Thereafter, statement of the accused under Section 342 Cr.P.C. was recorded but he denied the allegations in toto. The learned trial Judge after evaluating the evidence brought on record and hearing the parties found the accused guilty of the offence and on conviction sentenced him as stated above. Hence this appeal.
Mr. Sanaullah Khan Gandapur, Advocate representing the appellant, has challenged the impugned conviction on the following grounds:-- Firstly; that the impugned conviction is against facts, law and thus not sustainable; Secondly; that the learned trial Judge has ignored the mandatory provisions of the CNS Act 1997; Thirdly; that despite availability of numerous passengers in the vehicle in question, no independent witness was cited therefrom to the alleged recovery of narcotics; Fourthly; that though the appellant had produced in his defence driver of the said flying coach who was an independent and impartial witness, but the learned trial Judge has illegally not relied on him; Fifthly; that the prosecution version was to be scrutinized in juxtaposition with that of the appellant and the natural consequence creating a dint therein was to favour the appellant, but the learned trial Judge has failed to appreciate this legal aspect of the case in its true perspective and; Lastly/Sixthly; that the punishments awarded to the appellant are very harsh and deserve leniency.
5. The learned Deputy Advocate General appearing on behalf of the State defended the impugned judgment of conviction of the appellant on the grounds that the prosecution had successfully proved its case against the convict; that there was no animosity between the appellant and the PWs to falsely rope him in the offence; that a huge quantity of contraband charas was recovered from the direct and conscious possession of the appellant and that the appellant dealing in the heinous business of narcotics which is destroying the whole humanity deserves no leniency.
6. We have taken into consideration the arguments advanced at the bar and carefully gone through entire record of the case.
7. Admittedly, a huge quantity, i,e, five kilograms pukhta charas, was recovered from the direct and physical possession of the appellant. The argument that despite availability of private persons in the vehicle in question, the alleged recovery was witnessed by the ANF officials is negated by the fact that the appellant had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses. From the fads and circumstances of the case, the prosecution had successfully proved its case against the convict/appellant and, therefore, the learned trial Judge has rightly convicted him.
8. However, being a first offender and there is nothing on record about his previous involvement in such like offences, the quantum of punishment awarded to the appellant seems to be harsh and deserves to be dealt with leniently in view of the judgment reported in the case of Nazar Muhammad Vs. The State reported in 1986 P.Cr.L.J. 2065.
9. Consequently, we find no merit in this appeal which is dismissed. The conviction of the appellant under Section 9 (c) CNSA is maintained, but the sentence of ten years is reduced to four years R.I. and the fine of rupees eighty thousand is reduced to rupees twenty thousand, in default whereof the appellant shall suffer four months simple imprisonment. The benefit under Section 382,B Cr.P.C. shall remain intact.
Above are the reasons for our short order of even date. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.