' NADEEM AKHTAR, J.---This Criminal Jail Appeal is directed against the judgment delivered on 10-6- 2004 by the Additional Sessions Judge, Hyderabad, in Sessions Case No,193 of 1990, whereby the appellant was convicted under section 302, P.P.C. For causing the death of a minor girl; namely, Zahida, aged about seven (7) years. Through the impugned judgment, the appellant was sentenced to suffer imprisonment for life, and also to pay fine of Rs,50,000.00 to the legal heirs of Zahida, and in case of default thereof, to suffer rigorous imprisonment of two years. The appellant was extended the benefit of section 382-B, Cr.P.C.
2. The relevant facts of the case are that an F.I.R. Bearing No,58/1990 was lodged by the complainant Ali Muhammad on 2-6-1990 at 7-30 a.m. With the Police Station Tando Jam, District Hyderabad, reporting the death of his minor grand-daughter Zahida, aged about seven years, caused by the appellant. It was stated in the F.I.R. That the complainant was a labourer, and his son Ahmed along with his family was living with him; Zahida was the elder daughter of Ahmed, and she was also living with him; on 1-6-1990, Zahida left the house where they all were living together, but she did not return; the complainant and his son Ahmed left the house in search of Zahida when they met Muhammad Bukhsh, Ahmed alias Porho and Muhammad Moosa, who informed them that they had seen Zahida around 7-30 p.m. Going with the appellant towards the garden; after receiving this information, the complainant party proceeded towards the garden of Deenal Thebo; they heard the cries of Zahida coming from the watercourse of the garden; when they reached near the watercourse, they saw that Zahida was being strangulated by the appellant and she was crying; the complainant party gave hakaals to the appellant, but on seeing them, he killed Zahida, threw her into the watercourse, and started running away; the appellant was apprehended by the complainant and other eye-witnesses, who also took out Zahida from the watercourse, but she had already died; she had marks of strangulation, and also the marks of bites on her neck and cheek; the complainant party remained during the night at the scene of the crime with the appellant and the dead body of Zahida; on the next morning (2-6-1990), the complainant lodged the F.I.R. Against the appellant, alleging that he took Zahida to the garden with the intention to commit zina with her, and during such attempt, he killed her by strangulating her.
3. After registering the F.I.R. Of the complainant on 2-6-1990, SIP Ahmed Nawaz, who was posted at the Police Station Tando Jam and was on duty, proceeded to the place of the incident at Village Morri Mangar along with his subordinate staff and the complainant. The police party found the dead body of Zahida lying under a mango tree near the watercourse of the garden. After examining the body, the said SIP prepared the Mashirnama of the place of the incident, and the Laash Chakas Form/Danistnama (inquest report), in the presence of the complainant and the Mashirs, Bukhshan and Allandino, who attested the said documents. Thereafter, the dead body of Zahida was sent by the said SIP to Rural Health. Centre (RHC) Tando Jam for postmortem through Police Constable Muhammad Ashraf. The appellant was arrested by the said SIP and was brought to the Police Station Tando Jam on 2-6-1990, where he recorded the statements of the P.Ws.
Ahmed (Zahida's father), Muhammad Bukhsh and Muhammad Moosa, under section 161, Cr.P.C.
The said witnesses were produced on 3-6-1990 before the ACM Tando Jam, where their statements under section 164, Cr.P.C. Were recorded on the same day. The appellant was also produced on 3- 6-1990 before the ACM Tando Jam, for recording of his confessional statement.
4. The postmortem of Zahida was conducted at the RHC Tando Jam by the Medical Officer Dr. Abdul Hameed Halepota, who issued and signed the Postmortem Report dated 3-6-1990 (Exh.20- A). Thereafter, the dead body of Zahida was returned to her legal heirs for burial. According to the postmortem report (Exh.20-A), the death of Zahida was caused due to asphyxia and venous congestion as a result of throttling. Further, teeth marks were found on the right cheek, extravasation of the blood into the subcutaneous tissue under the finger mark adjacent to the muscle of the neck was lacerated, lacerating the shock of the cardio axillary was also seen, hyoid bone and throat cartilage were found fractured, larynx and trachea were found congested and fractured, and the injuries were found to be ante-mortem.
5. On 11-4-1991, formal charge was framed against the appellant by the VIth Additional Sessions Judge, Hyderabad, vide Exh.3, charging him with the intentional and voluntary murder of Zahida by throttling her, thereby committing an offence punishable under section 302, P.P.C. The appellant pleaded not guilty. At the trial of the appellant, the prosecution examined ten (10) witnesses; namely, the complainant/P.W.1 (Exh.6), who produced the F.I.R. (Exh.7) lodged by him, Ahmed (Zahida's father)/P.W.2 (Exh.8), Ahmed alias Porho/P.W.3 (Exh.9), who produced his statement under section 164, Cr.P.C. (Exh.10), Muhammad Bukhsh/P.W.4 (Exh.11), who produced his statement under section 164, Cr .P.C. (Exh . 12) , Allandino/P. W.5 (Exh . 13) , who produced the Mashirnama of the place of the incident and arrest, and the Danistnama (Exhs.14, 15 and 16), Police Constable Muhammad Ashraf/P.W.6 (Exh.17), who produced the receipt of the dead body of Zahida (Exh.17-A), Muhammad Moosa/P.W.7 (Exh.18), who produced his statement under section 164, Cr.P.C. (Exh.18- A), Tappedar Allah Bukhsh/P.W.8 (Exh. 19), who produced the site sketch (Exh.19-A), Dr. Saleem Akhtar/P.W.9 (Exh.20), who produced the postmortem report (Exh.20-A), SIP Ahmed Nawaz/P.W.10 (Exh.21), who produced Laash Chakas Form (Exh.21-A).
6. The statement of the appellant under section 342, Cr.P.C. (Exh.24) was recorded on 8-2-2002, wherein he denied to have committed the murder of Zahida; pleaded himself to be innocent; and further pleaded that he was of unsound mind. In support of his defence, the appellant examined only one witness; namely, Yar Muhammad Mirbahar/D.W.1 (Exh.25), who claimed that the appellant was his nephew. The learned trial court framed the following three points for determination:-- "(1) Whether deceased baby Zahida aged about 7-years died due to unnatural death?
(2) Whether accused Muhammad Amin killed baby Zahida aged about 7-years intentionally by throttling her?
(3) What offence, if any, committed by accused?"
' The learned trial Court gave the findings on points Nos.1 and 2 as proved, and sentenced the appellant with life imprisonment and fine of Rs,50,000.00, and in default thereof, rigorous imprisonment of two years. The benefit of section 382-B, Cr.P.C. Was extended to the appellant.
7. Ms. Nasira Shaikh, the learned counsel for the appellant, submitted that there were serious contradictions in the evidence of the prosecution witnesses, especially P.W.1 and P.W.2, who were the real grandfather/complainant and the real father, respectively, of Zahida. She further submitted that the postmortem of Zahida was conducted by an unauthorized person who was not a Medico Legal Officer, and the manner in which the postmortem was conducted, was suspicious.
In support of her contentions, she referred to the evidence of P.W.1 and P.W.2, wherein P.W.1 had stated that P.W.2' had informed him that Zahida was missing, but P.W.2 had stated in his evidence that this fact was brought to his notice by P.W.1. Regarding the postmortem, it was contended that the Medical Officer who had conducted the postmortem, was not produced by the prosecution as he had died. It was urged that, in the absence of the evidence of the said Medical Officer, the postmortem report was inadmissible in evidence. This submission was made by the learned counsel in addition to her objection that the said Medical Officer was not authorized to conduct the postmortem. It was further contended that there W45 a delay in preparing and submitting the postmortem report, as the postmortem was conducted on 2-6-1990, but the report was prepared on 3-6-1990. It was also contended that according to the postmortem report, the postmortem started at 9-00 a.m. On 2-6-1990 and was completed at 10-50 a.m. Whereas, the police constable Muhammad Ashraf (P.W.6), who was entrusted with the dead body with the responsibility to take the same for postmortem, had said in his evidence that he reached the hospital at 9-00 a.m. With the dead body and the dead body was returned to him at 9-15 or 9-30 a.m.
8. Further submissions of the learned counsel for the appellant were that there was delay in lodging the F.I.R.; there was also delay in recording the statements of the prosecution witnesses under sections 161 and 164, Cr.P.C.; no Mashirnama was prepared, no recovery was made, and there was no report of chemical examination; according to the prosecution, the incident took place after Maghrib, therefore, it was not possible for the alleged witnesses to identify the appellant in the absence of any light; and, since all the alleged eye-witnesses were either close relatives of Zahida, or were the neighbors of her father and grandfather, their evidence was not credible. It was emphasized that the appellant was a person of an unsound mind. In the end, it was urged that the learned trial Court committed a serious and grave error by misreading the evidence on record, and by ignoring the material irregularities during the investigation.
(11) In support of her submissions, the learned counsel for the appellant relied upon (1) Shahzad Tanveer v. The State 2012 SCMR 172, (2) Gul Muhammad v. The State 1972 SCMR 435, (3) Ghulam Din v. The State 1993 PCr.LJ 1849, (4) Ghulam Nahi and 2 others v. The State 2009 MLD 49, (5)
Muhammad Ramzan and another v. The State 2009 PCr.LJ 553, (6) Omer v. The State 2009 PCr.LJ 1119, (7) Muhammad Aslam v. The State 2008 YLR 1608, (8) Allah Ditta v. The State 2006 PCr.LJ 84, (9)
Muhammad Pervaiz v. The State 2006 PCr.LJ 221, (10) Sobho and 2 ethers v. The State PLD 2004 Karachi 8, Jamshed alias Jammi v. The State and others 2004 PCr.LJ 1239, Arfan Ali v. The State 2003 YLR 1054, (13) Abdul Sattar and others v. The State 2002 PCr.LJ 51 and (14) Pir Jan and another v. The State 1997 PCr.LJ 1646.
10.. On the other hand, Mr. Shahzado Saleem Nahyoon, the learned APG, submitted that there was no contradiction, as alleged or otherwise, between the ocular and oral evidence produced by the prosecution, and the same was sufficient to convict the appellant for murdering Zahida. He pointed out that the Investigating Officer (P.W.10) had stated in his evidence that the appellant was produced before the ACM for recording of his confessional statement, where the same was recorded. He submitted that P.W.10 was not confronted on behalf of the appellant that the statement given by him regarding recording of the confessional statement of the appellant, was false. He further submitted that the statements of the prosecution witnesses and the appellant were required to be recorded within 14 days under section 173, Cr.P.C., which were duly recorded within time. He contended that there was no delay in lodging the F.I.R., and the gap of a few hours between the time of the incident and the lodging of the F.I.R., was due to the fact that the incident had taken place at night and also due to lack of the conveyance at the village, which was sufficiently and satisfactorily explained by the complainant. It was urged that a gap of only a few hours in the given circumstances could not be termed as delay in lodging the F.I.R. It was further urged that the plea of unsound mind was not taken by the appellant when the charge was framed against him and was read over to him. He supported the impugned judgment, and prayed for the dismissal of this appeal. In support of his submissions, the learned APG relied upon the cases of
(1) Nazir Ahmed v. The State 2009 SCMR 523,
(2) Shafqat All and others v. The State PLD 2005 Supreme Court 288,
(3) Sher Dil and others v. The State and others 2003 YLR 110, and
(4) Muhammad Hanif v. The State PLD 1993 Supreme Court 895.
11. I have heard the learned counsel for the appellant and the learned APG at length, and have also examined the record minutely. I have observed that the sole defence witness D.W.1 in his deposition had stated that the appellant was residing at his (D.W.1's) house, and in his cross-examination, he had stated that the appellant had come to his (D.W.1's) house one day prior to the date of the incident. D.W.1 never claimed or asserted that the appellant was with him (D.W.1), or was at his (D.W.l's) house when the incident occurred. On the contrary, D.W.1 had admitted in his cross- examination that he was not present when the appellant was arrested. D.W.1 also never claimed or asserted that the appellant was not present on the date, time and at the place of the incident; or that he was not alone with Zahida and some other person(s) was/were also present on the date, time and at the place of the incident; or that Zahida was not with him; or that he was not found with Zahida by the prosecution witnesses. It may be noted that none of the eye-witnesses were confronted by the defence side that the appellant had not taken Zahida with him on the date, time and at the place of the incident, or he was not present with her when the incident happened. In view of the above, the allegations by the prosecution to the effect that the appellant had taken Zahida with him on the date, time and at the place of the incident, he alone was present with her when the incident happened, and he was found with her by the eye witnesses, not only remained un- rebutted, but such facts/allegations also stood admitted before the trial Court. The burden to prove the above facts/allegations was on the prosecution, which stood proved in view of the above. The above views expressed by me are fortified by the case of Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi, 1991 SCMR 2300, wherein the Hon'ble Supreme Court was pleased to hold that where on a material part of his evidence, a witness is not cross-examined, it may be inferred that the truth of such statement has been accepted; statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and is usually accepted as true unless displaced by reliable, cogent and clear evidence.
12. There was no contradiction in the evidence of the complainant/P.W.1, Zahida's father/P.W.2, and other eye-witnesses; namely, P.W.3, P.W.4, and P.W.7, as all of them had testified that when they reached at the place of the incident after hearing the cries of Zahida, they found the appellant sitting on the chest of Zahida with both his hands around her neck; the appellant was strangulating Zahida; after seeing them, the appellant threw Zahida in the watercourse and tried to escape; when they fished out Zahida from the watercourse, she was already dead; and, the appellant was apprehended by them. It is to be noted that no contradiction whatsoever was pointed out by the learned counsel for the appellant with regard to any of the above facts witnessed by the eye- witnesses. The minor contradictions, as claimed by the learned counsel for the appellant, were of no significance; firstly, as the same did not relate to the actual act of the commission of the offence; secondly, as the condition of the dead body of Zahida and the marks found thereon described in the postmortem report (Exh.20-A), fully corroborated the evidence of the eye- witnesses; and, lastly, the allegations made by the prosecution against the appellant stood proved in any event as held above. Similarly, there was no contradiction in the evidence of the other prosecution witnesses.
13. In his evidence, P.W.9 Dr. Saleem Akhtar produced the post mortem report as Exh.20-A. He identified the handwriting and the signatures of the Medical Officer Dr. Abdul Hameed Halepota, who had conducted the postmortem of Zahida and had issued the postmortem report (Exh.20-A).
In his evidence, P.W.9 had stated that he had worked with the said Medical Officer at the Rural Health Centre Tando Jam for two years, and had confirmed that the postmortem report (Exh.20-A) was issued by the said Medical Officer. P.W.9 was not confronted at all by the defence side with the suggestion or question that the said Medical Officer was not authorized to conduct the postmortem, or that the postmortem was not conducted by him, or that the postmortem report (Exh.20-A) was bogus, concocted, false, manipulated, fabricated, etc. Since the entire contents of the postmortem report (Exh.20-A) remained unrebutted, the same stood admitted and proved before the trial Court. The burden to prove the allegations relating to the postmortem report (Exh.20-A), was on the appellant, but he hopelessly failed in discharging such burden, and in view of his failure, the burden never shifted to the prosecution. Therefore, the objections raised by the learned counsel for the appellant with regard to the authenticity and admissibility of the postmortem report (Exh.20-A), have no force.
14. Regarding the plea taken by the appellant that he was of unsound mind, it is to be noted that in his statement under section 342, Cr.P.C., he had stated that he was of unsound mind prior to the incident. He never claimed that he was of unsound mind on the date of the incident, or that such mental condition was still subsisting when his said statement was being recorded. In his evidence, the sole defense witness D. W.1 had claimed that the appellant was of unsound mind, and he was admitted 2-3 times at the Mental Hospital Hyderabad. D.W.1, however, admitted in his cross- examination that no document was filed or produced by him in support of this assertion. The burden to prove that the appellant was of unsound mind, was on the defence side, but it miserably failed in discharging the same. As such, it was not proved that he was of unsound mind. The submission made by the learned counsel for the appellant in this behalf is, therefore, rejected.
15. As per the F.I.R., the unfortunate incident took place on 1-6-1990 at about 8-00 p.m., and the F.I.R.
Was lodged by the complainant on 2-6-1990 at 7-30 a.m., that is, after 11 hours and 30 minutes on the next morning. It was an admitted position that the incident happened at a village; there was no police station at the village; and, the nearest police station was situated. At Tando Jam, which was at some distance from the village. The complainant had categorically stated in his cross- examination that the distance between the police station and the village was about six miles, he did not go to the police station during the night due to the fear of dacoits,and he reached the police station between 6-30 to 7-00 a.m. On the very next morning. The complainant was not confronted by the defence side with any suggestion that there was any mala fide on his part, or he deliberately delayed the lodging of the F.I.R. The facts that a minor girl was brutally murdered after sunset at a village which was about six miles away from the nearest police station, and at the place of the incident the dead body was lying and the appellant had been detained, fully justify the date and time of the lodging of the F.I.R. In fact, in the given circumstances, the F.I.R. Could not have been lodged earlier than when it was lodged. In the above circumstances, I am of the view that there was no delay on the part of the complainant in lodging the F.I.R. The submission made by the learned counsel for the appellant in this context is, therefore, rejected.
16. The learned counsel for the appellant relied upon a number of cases in support of her submissions, which are briefly discussed below:-- A. In the case of Shahzad Tanveer (supra), the postmortem report did not bear the F.I.R.. Number, and it was not signed by the doctor. It was held in the said case that the omission on the part of the Investigating Officer suggested that F.I.R. Had been lodged much after the postmortem examination, and the medical evidence did not fully support the prosecution case. The cited case has no relevance with the instant case, as. The F.I.R. Number and the signature of the doctor were appearing on the postmortem report, and the F.I.R. Was admittedly lodged much prior to the postmortem examination. B. In Muhammad Ramzan (supra), F.I.R. Was recorded after preliminary investigation. Whereas, in the present case the F.I.R. Was lodged first and then the investigation had started. C. In the case of Gul Muhammad (supra), the question of appreciation of evidence was discussed in view of the fact that there was no recovery memo to show recovery of blood stained clothes from the accused. In the instant case, there was no question of recovery or recovery memo, as the appellant was found strangulating Zahida with his bare hands. However, the dead body of Zahida was recovered and the Mashirnama was prepared accordingly. D. In Pir Jan (supra), the complainant had not satisfactorily explained the delay of Five (5) days in lodging the F.I.R., there was also a delay of Five (5) days in recording the statements of eye-witnesses by the police, and there were contradictions and discrepancies in the ocular testimony. In the case in hand, I have already held that there was no delay in lodging of the F.I.R., the gap of few hours had been explained satisfactorily by the complainant, and there was no contradiction or discrepancy in the ocular testimony. Moreover, there was no delay in recording of the statements of eye-witnesses, as their statements under sections 161 and 164, Cr.P.C. Were recorded on 2-6-1990 and 3-6-1990, respectively. E. In Muhammad Pervaiz (supra), there was a gap of two to three hours between the injury and the death, as per the postmortem report issued by the doctor. There was no such gap in the instant case, as Zahida had died instantaneously, and she was already dead when her body was found by the eye-witnesses. In fact, the postmortem report, which remained unrebutted, confirmed that all the injuries suffered by Zahida were ante-mortem. F. In Allah Ditta (supra), the F.I.R. Was lodged with the delay of two days while the distance between the place of occurrence and the police station was 15 kilometers, the complainant was not an eye-witness, and there were only two prosecution witnesses who were closely related to the deceased. In the case in hand, the complainant himself was one of the eye-witnesses, there were a number of prosecution witnesses out of whom only two, that is, P.W.1 and P.W.2 were closely related to Zahida, and the remaining were admittedly not related to her at all. Moreover, there was no such delay in the present case in lodging of the F. I . R .
G. The case of Muhammad Aslam (supra) was not an appeal, but was an application for suspension of sentence. In the said case, no weapon had been recovered from the accused and he had not been convicted by the trial Court in the main offence under section 302, P.P.C. In the case in hand, the appellant has been convicted for murdering Zahida under section 302, P.P.C. As far as the question of recovery of weapon is concerned, it was the case of the prosecution that the appellant had killed Zahida with his bare hands and not with a weapon. H. In Arfan Ali (supra), both the eye-witnesses were residents of a locality which was situated about 60 to 70 miles away from the place of occurrence, and their presence at the place of the occurrence was doubtful. In the instant case, all the eyewitnesses were admittedly the residents of the same village where the incident had occurred. I. In the case of Ghulam Mohi-ud-Din (supra), the identification parade had become doubtful as the occurrence had taken place at dark night, and the accused was not known to the eye-witnesses. There was no occasion for the identification parade for identifying the appellant, as he was seen and caught red-handed by the eye-witnesses at the place of the incident. J. In the cases of Ghulam Nabi and Sobho (supra), it was held that ocular testimony having come from interested and closely related witnesses, alone could not be relied upon to justify conviction; private witnesses were not associated by the Investigating Officer; and, the evidence collected by the prosecution and witnesses examined in the Court, were discrepant and not confidence. Inspiring. In this context, the learned APG relied upon the case of Muhammad Hanif v. The State, PLD 1993 Supreme Court 895, wherein it was held inter alia by the Hon'ble Supreme Court that the two eye-witnesses, who, being the real father and the real sister of the deceased, were closely related to the deceased, and their presence was natural at the time and place of the occurrence which was successfully established by the prosecution; their testimony was not only consistent, trustworthy and inspired confidence, but was also corroborated by the medical evidence and the promptly lodged F.I.R. Giving details of the occurrence; experts' evidence may it be medical or that of a ballistic expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence; if there is direct evidence which is definite and trustworthy, the confirmatory evidence is not of much significance and cannot in any case outweigh the direct evidence. The ocular evidence having stood fully corroborated, the conviction recorded by the trial Court under section 302, P.P.C. Was restored by the Hon'ble Supreme Court. The learned APG also relied upon the case of Sher Dil (supra), wherein the learned Full Bench of the Federal Shariat Court was pleased to hold inter alia that relationship in itself is not a yardstick or standard for discarding evidence which otherwise is trustworthy and comes from one who normally could have been expected to have witnessed the occurrence.
17. It is apparent that the cases cited and relied upon by the learned counsel for the appellant are clearly distinguishable from the facts and circumstances of this case, and as such the same are of no help to the appellant. There was more than sufficient and unchallenged ocular and medical evidence against the appellant before the learned trial Court to convict him for the murder of minor Zahida, and the case against him was proven beyond any shadow of doubt. The findings of the learned trial Court are based on sound reasoning and correct and proper appreciation of the evidence on record. In fact, the learned trial Court took a lenient view by not awarding the sentence of death to the appellant, and also extended the benefit of section 382-B, Cr.P.C. To him. As such, the impugned judgment does not call for any interference by this Court.
' As a result of the above discussion, this appeal is dismissed.
2014 P Cr. L 516 [Peshawar] Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ Mst. THELAY DARA---Appellant versus The STATE---Respondent Criminal Appeal No,601-P of 2011, decided on 28th November, 2013.
Control of Narcotic Substances Act (XXV of 1997)- --Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Contradictions and inconsistencies in the statements of the star witnesses of the prosecution, could not be considered so material so as to shatter and make doubtful the recovery of the contraband---Such discordant and conflicting portion of evidence, could at the most be termed as human error---Recovery of contraband could not be doubted, when there was no defence and explanation against, prima facie, established recovery of narcotics by accused as required under S.29 of Control of Narcotic Substances Act, 1997---No enmity of the prosecution witnesses, who were Police Officials, with accused, was ever suggested by accused---No explanation came forward from the side of accused as to for what purpose, she was present there with her co-accused, having no relation with absence of any such explanation and simple denial by accused, would be sufficient to prove her guilt---Weight of recovered substance, was less than the quantity as prescribed in proviso to S.9(c) of the Control of Narcotic Substances Act, 1997--- Accused, in circumstances, had become entitled to the benefit of a borderline case---Accused was a first offender having no previous history of being involved in such like cases---Accused being woman, would deserve leniency---Sentence awarded to accused being too harsh, called for reduction---Maintaining conviction of accused, her sentence was reduced from 'Twenty-Five' years R.I. To 'Ten' years R.I., and that of fine from Rs,1,00,000 to Rs,50,000. [pp. 518, 519] A & B Alamgir Wazir Banna for Appellant.
Rabnawaz Khan, A.A.-G. For the State.
Date of hearing: 28th November, 2013.
' 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.
Sentence reduced.