1. ' MRS. QAISER IQBAL, J.---The appellants have preferred this appeal under section 410 of the Code of Criminal Procedure assailing the judgment dated 10-9-2007 passed by the learned Special Judge (C.N.S.), Ghotki in Crime No,03/2006 of Police Station Excise Ghotki, whereby the appellants were sentenced and convicted to undergo R.I. For life and to pay a fine of Rs,1,00,000 each. In default of payment of fine they shall suffer S.I. For six months more. The benefit of section 382-B Cr.P.C. Was also extended.
2. ' Succinctly the facts leading to the filing of this appeal are that Excise Inspector Hussain Bukhsh Larik accompanied with his subordinate staff on fateful day at 1-00 p.m. Boarded an official mobile proceeded to Excise Check Post, Ubaro vide Entry No,29 dated 20-1-2006 at 12-30 p.m. Reached at the place of incident, checking the suspected vehicles and buses coming from Punjab. A Passenger bus bearing Registration No, LRT-3810 was stopped after being signalled. 35 passengers were boarded besides the Driver and the Cleaner, they were alighted from the bus. The Driver disclosed his name as Abdul Manan son of Bashir Ahmed Pathan, while Cleaner disclosed his name as Ubaid son of Muhammad Shah Pathan, residents of Charsada and Peshawar respectively. During the checking of goods lying inside the bus, a bag was lying found below the last seat of the bus. On enquiry Driver Abdul Manan disclosed that it was his bag, which was locked.
3. The key was enquired from him, he gave a bunch of keys. The bag was unlocked and found 16 cloth bags and 5 plastic bags. The cloth bags were opened and found containing heroin powder of brown colour while plastic bags were found containing Charas. The appellants were arrested, on weighment of cloth bags each containing one kilogram and 16 kilograms each containing one kilogram in total was seized, out of each bag 50 grams were separated for Chemical Analysis and were sealed the same, while weight of each plastic bag was one Kilogram, out of each sample of 100 grams Charas was separated for the purpose of analysis. The narcotics was secured and sealed on the spot Mashirnama of arrest and recovery as Exhs.A & B was prepared. F.I.R. As Exh.8-C was lodged by the Investigating Officer Excise Inspector Hussain Bakhsh Larik. Sample was sent to the Chemical Examiner for report as Exh.8-D and the appellants were challaned to face the trial.
4. ' At the trial, charge was framed on 19-7-2006, to which the appellants pleaded not guilty and claimed to be tried.
5. ' During the trial, the prosecution examined the Complainant/Investigation Officer Excise Inspector Hussain Bakhsh Larik, as Exh.9 and closed its side vide statement as Exh.10. The appellants in their statements under section 342, Cr.P.C. Have denied the allegations levelled by the prosecution against them and pleaded that nothing incriminating was secured from their possession. They neither examined themselves on oath nor any witness in rebuttal was produced.
6. ' The trial Judge after reviewing the evidence, convicted the appellants as stated above.
7. ' Mr. Inamullah Khan, learned counsel appearing on behalf of the appellants has contended that the appellants were not in conscious possession of the narcotics, as per prosecution case, one bag was secured under beneath of last seat of the bus, therefore, it cannot be asserted that both the appellants found in conscious possession of Charas and heroin powder. It is next contended that the prosecution ought to have produced the bags out of which heavy quantity of narcotics were recovered, the evidence pertaining to the delivery of key of bag is not consistent as both the prosecution witnesses have given a conflicting version. It is next urged that the prosecution witnesses held from the Excise Post and they were interested in success of the case, thereby supported the prosecution story. It is next urged that 35 passengers boarding the bus available on the spot yet none was associated during the recovery.
8. ' On the other hand, Mr. Saifullah learned A.A.-G. While controverted the arguments of the learned counsel for the appellants, seriously contended that the prosecution has succeeded to produce overwhelming evidence leading to own inference that heavy quantity of heroin powder does not entitle them for any leniency in the matter.
9. ' We have gone through the arguments rendered by the learned counsel appearing on behalf of the parties and perused the matter available on record.
10. ' The prosecution has examined PC and the Inspector, who produced the factum of arrest of the appellants while driver in the Bus bearing Registration No,LRT-3810, recovery of contraband heroin from the bag is not disputed. The factum of arrest has not been denied witnesses are consistent on the material point and minor discrepancies pointed out are not sufficient to discredit the statement of he prosecution witnesses. There was no enmity or grudge alleged against the complainant or the prosecution witnesses to falsely implicate the appellants.
11. ' The Excise Party was available at the spot checking the occupants of the buses and other transports. Violation of section 103, Cr.P.C. Carries no weight in view of section 25 of the Act, 1997. It will not be out of place to mention here that the provision of section 103 is also misconceived inasmuch as section 25 of the Act, 1997 specifically oust applicability of section 103 as held in the case of The State v. Muhammad Amin (1999 SCM R 1367). It is well-settled law that the police officials can be a good witness as of any other witness from the public unless there are sufficient evidence available to exclude their evidence from consideration. Out of entire narcotic secured negligible quantity c was dispatched for the Chemical Examination Report, which is in positive.
12. ' Adverting to the quantum of sentence, section 9(c) of the Act prescribes sentence of R.I. Upto 14 years or life or death in case quantity of narcotics exceeds one kilogram. The proviso attached to subsection (c), however, prescribes minimum penalty of life imprisonment in case quantity exceeds 10 kilogram. In the case of Abdul Ghani v. The State (2001 PCr.LJ 2027), a Division Bench of this Court dilating the above issue has held that the aforesaid provisions of section 9(c) of the Act, it would be gathered that the sentence of life imprisonment or death in cases involving narcotics with quantity of less than 10 kilograms would be too harsh and may not appear to be in consonance with the above provisions and appear highly improportionate.
13. ' Adverting to the question of conscious possession carried in the bus, the appellants have admitted that they were driver and cleaner of the Bus, transported in a vehicle. One of them was found in possession of key delivered to the complainant and recovery was effected. The contradiction between the prosecution statement as to which one of the accused has delivered the key is not fatal to the prosecution case as both of them were present at the spot. So much so the involvement of passengers of the bus cannot be taken as Gospel Truth, as both the appellants claimed ownership of the bag containing contraband substances. Both the prosecution witnesses are consistent on the above point that the appellants claimed ownership of the bag. The defence plea is vague to the effect that the narcotics were produced from local market and were foisted upon the appellants at the instance of rival group of transporters to cause loss to the owner of the bus. Such situation was denied by the witnesses.
14. Pursuant to the above discussions, we are of the opinion that the prosecution has produced sufficient material to connect the appellants in the commission of crime E and consequential guilt.
15. The sentence awarded to the appellants is proper. The impugned judgment does not call for interference at this stage. Appeal bears no merits hereby stands dismissed.