' MUHAMMAD ALAM KHAN, J.---By way of this single judgment we propose to dispose of the instant Criminal Appeal No,67 of 2007 (Muhammad Wali v. The State), Criminal Appeal No, 68 of 2007 (Shahid Salim v. The State )and Jail Criminal Appeal No,79 of 2007 (Hazrat Shah v. The State) as all these three appeals arise out of a common judgment of Mr. Anwar Hussain, Judge Special Court (CNS), Peshawar Camp Court at D.I. Khan in case No,8 decided on 22-5-2007 and involve common questions of law and facts.
2. According to the initial report lodged by Ghulam Hussain, Inspector Legal, Police Station ANF, D.I.
Khan on 29-6-2005 at 1400 hours, Raja Tariq Mehmood, Assistant Director/Incharge Police Station ANF D.I., Khan, had received spy information that a huge quantity of heroin was being smuggled from Peshawar to Karachi in Bus No, Peshawar-E/7060. Believing it to be true, Ghulam Hussain Inspector Legal with police party had made nakabandi' on Bannu-Dera road near New Zakori Hotel when the aforesaid Bus reached there which was stopped for checking. Hazrat Shah and Shahid Salim were its drivers, while Muhammad Wali, an Afghan Refugee, was sitting therein. When checked, wooden made secret cavities were found behind the driver's seat which were broken and six packets heroin powder in grey colour duly wrapped in a white colour chadder weighing one kilogram each were recovered therefrom. All the three were, therefore, booked as accused for an offence under section 9(c) Control of Narcotic Substances Act, 1997 and case F.I.R. No,7, dated 29- 6-2005 was accordingly registered against them in Police Station, ANF D.I. Khan. The Bus was also taken into possession. Ten grams from each of the packets were separated for chemical analysis while the remaining contraband heroin was sealed into different parcels. During personal search, cash amount of Rs,1130, a Cheque Book in his name, NIC and a photo copy of F.I.R. No,203 of 2005 of Police Station, Gujar Khan, District Rawalpindi was recovered from the pocket of accused Hazrat Shah, while cash amount of Rs,600 were recovered from the pocket of accused Muhammad Wali.
3. After completion of requisite formalities, the accused were forwarded to the Court for trial where they were formally charge-sheeted but they did not plead guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution produced five witnesses in all, whereafter statements of the accused under section 342, Cr.P.C. Were recorded. However, neither they opted to be examined on oath nor produced defence evidence. The learned trial Judge after evaluating the materials brought no record and hearing pro and contra arguments found accused Hazrat Shah being owner and driver of the Bus to be actual smuggler and thus on conviction under section 9(c) Control of Narcotic Substances Act, 1997, sentenced him to fifteen years' R.I. And a fine of Rs,3 lacs, in default to undergo simple imprisonment for two years, while accused Shahid Salim and Muhammad Wali were convicted under section 14/15 Control of Narcotic Substances Act, 1997 and sentenced them to suffer five years rigorous imprisonment along with a fine of Rs,One Lac each, in default to undergo one year simple imprisonment. Benefit of section 382-B, Cr.P.C. Was, however, extended to all the three accused. Absconding accused Siraj Hussain and Sikander Ali were directed to be enlisted in the register of Proclaimed Offenders with direction to the Illaqa Magistrate to proceed against them under sections 87/88, Cr.P.C. Vide judgment, dated 22-5-2007 of the learned Judge Special Court (CNS), Peshawar Camp Court at D.I. Khan.
5. The main thrust of arguments of the learned counsel for the appellants in Criminal Appeals Nos.67 and 68 of 2007 coupled with the points agitated in the Jail Criminal Appeal No,79 of 2007 is that despite having prior information about the occurrence, the Staff of ANF had not associated any public witness to the alleged recovered contraband heroin, nor any passengers from the Bus were examined so as to substantiate the prosecution version; that nothing incriminating has been recovered from the direct and physical possession of the convict/appellant; that the learned trial Judge has not appraised the evidence correctly as the evidence of P.W.5., namely Asmatullah FC has not been taken into consideration and discussed in the impugned judgment which had a direct bearing on the case of the prosecution. Their submission was that the star witnesses of the prosecution, namely, Ghulam Hussain P.W.1. And Zahoor Shah P.W.2 had contradicted each other on material points and thus impugned judgment of conviction is not sustainable under the law.
Learned counsel for the appellants lastly submitted that the quantum of sentence awarded to the appellants by the learned trial Court is harsh and is liable to be reduced.
6. The learned Deputy Advocate General defended the impugned judgment on the grounds, almost the same, enumerated therein. Furthermore, he vehemently resisted the request of the learned counsel for the appellants for reduction of the sentence.
7. We have heard learned counsel for the parties at a considerable length and thoroughly examined the record of the case.
8. On merits, we find that the impugned judgment is based on correct appreciation of evidence and there is no illegality or irregularity so as to warrant interference therein. A huge quantity of contraband heroin was recovered from the secret cavities behind the driver's seat of the Bus made of wood and it does not lie in the mouths of the convict/ appellants to say that they had no knowledge about the recovered heroin. From the facts and circumstances of the case, the prosecution had successfully proved its case against the convict/appellants and the impugned conclusion of the learned trial Judge is based on correct premises and established principles of appreciation of evidence. On perusal of the record we find that there is no evidence against the appellants to prove that they are either drug traffickers, previous convicts or previously involved in such like activities. Thus, their case can be considered for reduction of the sentence in view of the judgment handed down in the case of "Nazar Muhammad v. The State" reported in (1986 PCr.LJ 2065).##TE#
9. Consequently, we find no substance in either of the three appeals. The convictions of the appellants are, therefore, maintained and their appeals are dismissed.
10. However, the quantum of sentences awarded to the convict/ appellants seems to be harsh and need to be reduced.
11. Resultantly, the sentences of imprisonment of appellants Muhammad Wali in Criminal Appeal No,67 of 2007 and those of the appellant Shahid Saleem in Criminal Appeal No,68 of 2007 are reduced from five years' R.I. Each to three years' R.I. Each and fine amounting to Rs,One Lac each is reduced to Rs,10,000 (rupees ten thousand) each, in default to suffer three months' simple imprisonment each while the sentence of imprisonment of Hazrat Shah in Jail Criminal Appeal No,79 of 2007 is reduced from fifteen years' R.I. To eight years' R.I. And the fine amounting to Rs,Three Lac is reduced to Rs,One Lac, in default to suffer one year simple imprisonment.
' The above are the reasons of our short order, dated 1-7-2008.##TE# Sentence reduced.