' MAZHAR ALAM KHAN MIANKHEL, J.---Mst. Thelay Dara, appellant herein, was found in possession of 'Ten' kilograms of `Charas' and 300 grams of 'Opium'. A case under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered against her vide F.I.R. No,654, dated 1-10-2010 in Police Station Muhammad Riaz Shaheed, District Kohat. Since another accused namely, Umar Zaman was also accompanied with the appellant at the time of occurrence, he was also booked in the said F.I.R. But he, later on, after getting bail on 14-10-2010 from the Court of the learned Additional Sessions Judge-I, Kohat, went into hiding and is still avoiding his lawful arrest. After the arrest of the appellant and completion of investigation, she was sent to the Court of learned Sessions Judge/Judge, Special Court, Kohat for trial, who, on its conclusion, convicted her under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced her to "Twenty-five years" rigorous imprisonment with a fine of Rs,100,000 or in default thereof, to suffer further three months simple imprisonment with benefit of section 382-B of the Cr.P.C. Vide judgment dated 15-9-2011. Hence, this appeal.
2. It was vehemently contended by the learned counsel appearing on behalf of the appellant that the impugned judgment is the result of misreading and non-reading of evidence and is also against the law and facts of the case, is based upon surmises and conjectures; that no private witness was mentioned in the murasila nor was associated with the investigation; that there are many material contradictions between the statements of the star witnesses of the prosecution, which create doubts in the recovery of contraband; that the Investigating Officer prepared the site plan on the next day and no plausible explanation has been given in this regard; that the time of alleged occurrence has been shown in the F.I.R. As 1830 hours while the time of lodging the report has been mentioned as 1840 hours and within these ten minutes the S.H.0.-complainant has conducted the entire process i,e, search, recovery of narcotics, its weighment, arrest, drafting the murasila and preparation of recovery memo etc., which is not only impossible for a human being but also clearly shows that the appellant has falsely been implicated in the instant case and that if the S.H.O. Hasn't weighed the alleged narcotics with wrappers, the net recovery might have been less than ten kilograms and the learned trial Court hasn't taken into account this essential aspect of the case while awarding sentence to the appellant. His last submission was that inflicting punishment of 'twenty-five' years' R.I. To a lady is too Harsh and not justified in view of the afore- noted infirmities and loopholes in the prosecution case, therefore, the appellant be acquitted from the charges levelled against her by taking a lenient view.
3. As against that, the learned Additional Advocate-General appearing on behalf of the State by supporting the impugned judgment vehemently argued that the appellant was arrested red- handed on the 'spot while she along with her absconding co-accused were attempting to smuggle a huge quantity of narcotics weighing Ten kilograms of `Charas' and 300 grams of 'Opium'; that such a huge quantity of narcotics, couldn't be planted against her and that she has failed to establish any malice or mala fide on the part of the prosecution witnesses, therefore, her conviction and sentence is justified and legal, be upheld accordingly, notwithstanding, abscondance of her co-accused.
4. We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties.
5. The learned counsel for the appellant by referring to the contradictions and inconsistencies in the statements of the star witnesses of the prosecution i,e, Said Khan S.H.O./complainant (P.W.1), Walibat Khan, I-IC (P.W.3) and Lady Constable Saima (P.W.5), who furnished the ocular account, has tried to make out a case for interference. Said Khan, S.H.O. (P.W.1) deposed in his cross- examination that "the lady accused was searched out inside the said room by the lady constables in presence of me and marginal witnesses of recovery memo" and same is the statement of the another witness namely, Walibat Khan (P.W.3), who, in his cross-examination, stated that "the female accused was searched through lady constable inside the room, situated on the spot in our presence" but this, fact was contradicted by the lady constable namely Saima (P.W.5) in cross- examination by stating that "at the time of search of the lady accused, I and lady accused were present and no male person including police were present there". Similarly, P.W.1 claimed in his cross-examination that "the lady constable handed over the waistcoat to me, which was searched out by me" and same is the statement of P.W.3, who in cross-examination deposed that "the waistcoat was taken by the said lady constable and handed over to the S.H.O., who searched the same" but again the P.W.5 in her examination-in-chief contradicted both of them by deposing that "I took her to the room of the check post and during her personal search, I recovered from the jacket worn by her over her clothes four packets of charas weighing 10 K.Gs and 300 grams Opium from the side pocket of her shirt and I handed over the recovered contraband to the S.H.O. Said Khan". P.W.1 in examination-in-chief further deposed that "I boarded down both the accused" but in cross-examination, he contradicted himself in this point by stating that "the lady accused was deboarded from the vehicle through lady constable"; P.W.3 in this regard stated in his cross- examination that "the S.H.O. Himself deboarded both the accused-from the flying coach" and P.W.5 in this regard stated in her examination-in-chief that "they were alighted by the S.H.O. From the coach and I was directed by the S.H.O. To search the lady accused". The contradictions/inconsistencies, referred to above, no doubt, are there but the same can't be considered so material so as to shatter and make doubtful the recovery of the contrabands. Such discordant and conflicting portion of evidence could, at the most, be termed as human errors and there could be, no two opinions, that observational aptitude of the human being varies from person to person. The recovery of contrabands can't be doubted, when there is no defence and explanation against, prima facie, established recovery of narcotics by the appellant as required under section 29 of the, Control of Narcotic Substances Act, 1997, which being a special law having exception and overriding effect to the general law and criminal dispensation of justice. Besides, no enmity of the P.Ws., who being the police officials, with the appellant was ever suggested by her, who being resident of one district was apprehended in another district. No explanation, came forward from the side of appellant that for what purpose, she was present there with her co- accused having no relation with him. In absence of any such explanation and simple denial by her would be, sufficient to prove her guilt.. However, we're mindful of the fact regarding quantum of recovery and the sentence awarded as it is on the record that the recovered substance both the charas and the opium were weighed with the wrappers and had it been otherwise, then might be the weight of the stuff would have been less than the quantity of proviso to section 9(c) of the Act, ibid. The appellant, in the circumstances, becomes entitled to the benefit of this borderline case.
Besides, the record would reflect that the appellant is a first offender having no previous history of being involved in such like cases and she being a woman would deserve leniency. When seen in this scenario, the sentence awarded to the appellant, in the peculiar facts and circumstances of the case, as discussed above, is too harsh and calls for reduction. We, in the circumstances of the case, while maintaining the conviction of the appellant, reduce her sentence from 'Twenty-Five' years' Rigorous Imprisonment to 'Ten' years Rigorous Imprisonment and that of fine from Rs,1,00,000 to Rs,50,000 and in default of payment of fine, to undergo further "Two months" S.I. By leaving benefit of section 382-B intact.
6. With the modifications, detailed above, this appeal stands disposed of.