MUHAMMAD DAUD KHAN, J:- Through this single judgment, we propose to dispose of the instant Criminal Appeal No.05-B of 2014 , Cr. JA No. 08-B of 2014 and Cr. A No. 09-B of 2014, as all the three appeals arising_ out of the same impugned judgment dated 07.01.2014, of the learned Additional Sessions Judge-III/ Judge Special Court, Bannu. The appellants, Noor Alam Khan and Mst. Hussan Pali, were convicted under section 9 (c) C.N.S.A and sentenced to live years R.I alongwith line of Rs.30,000/- each or in default of payment of fine to further undergo for six months SI. Benefit of section 382-B Cr.P.C. was also extended to them. As case property, motorcar bearing registration No. MNJ-3770 owned by convict / appellant Noor Alam Khan was confiscated to the state.
2. The prosecution story is that on 26.07.2013, there was information about smuggling of huge narcotics from village Gumbati in the motorcar, referred to above. The S.H.O of the local Police Station made arrangement to intercept the motor Car, on the road leading to Daryouba Agency.
The motorcar reached there. It was ordered to be stopped. The driver disclosed his name as Noor Alam Khan. In the rear seat of the motor car a women wearing veil (burqa) was sitting. The women disclosed her name as Hussan Pari. They were deboarded from the vehicle. The motorcar was subjected to a thorough search. The police personnel found a plastic envelop lying beneath the seat occupied by the women. The envelop contained charas. Underneath the driver seat, another plastic envelop was found, which too contained charas. After mixing the charas so recovered from both envelops, it was weighed which came to be ten kilograms. The driver disclosed that the contraband is the ownership of Hussan Pari and he was transporting the same at the rate of Rs.500/- per KG.
3. On seizer of the vehicle and recovery of narcotics both the accused were arrested. A Murasila was prepared on the spot and sent to the Police Station, which was converted into of F.I.R No. 123, dated 26.07.2013, under section 9 (c) C.N.S.A, Police Station Township, District Bannu.
4. On completion of investigation, the challan was submitted against the accused/ appellants Noor Alam Khan and Mst. Hussan Pari before the trial court. On 18.09.2013 charge was framed against them under section 9 (c) C.N.S.A. Both the accused pleaded not guilty and claimed trial. The prosecution examined as many as four witnesses in support of their case. Statements of accused were recorded under S. 342 Cr.P.C, wherein both the convicts/ appellants did not opt to make statement on oath as provided under S.340(2) Cr.P.C, nor did wish to produce defence evidence.
On conclusion of trial, both the appellants were convicted and sentenced as mentioned above, whereas the motorcar in question was confiscated in to the state.
5. The convict/ appellant Noor Alam Khan preferred Cr. A No. 05-13 ()I' 2014 and Mst. Hussain Pari filed a separate Cr. A No. 08-B of 2014 against their conviction and sentence, whereas Noor Alam Khan also filed Cr. Appeal No.09-B of 2014 against the confiscation order of Motorcar bearing No.MNJ-3770.
6. Learned counsel for appellants argued that: The charas in question was not recovered at all from the appellants. The PWs are police officials and not independent. The provision of S.103 Cr.P.C. was not complied with. Each of the two separate bags were not separately weighed. Separate samples were not drawn from each bag for chemical analysis. The Motorcar in question had no secret cavities, its confiscation is thus illegal.
7. Learned Addl: A.G argued that: The appellants are drug traffickers and were transporting the same from FR to settle district. The appellants had knowledge of the contraband charas; The charas was of huge quantity; The Police officials are as good witnesses as others; The chemical report about the charas is in positive; The prosecution evidence is reliable and suffers from no discrepancy. The trial court has already taken a lenient view by awarding lesser punishment.
The motorcar is used in the commission of the offence, its confiscation was legally justifiable.
8. We have heard arguments of learned counsel for the appellants as well as state counsel and perused the record.
9. The prosecution produced four witnesses. Complainant Nabi Shah, S.H.O was examined as PW-2.
He confirmed that the prosecution story narrated in the F.I.R is true. He fully mentioned the details of recovery of contraband vide recovery memo EX.PW2/1 being its marginal witness, drafting of murasila (EX.PW2/2) and preparation of site plan on his pointation. Rustam Khan ASI was examined as PW-3, being second marginal witness of recovery memo and eye witness of the occurrence.
Muzzamal Khan SI, Investigating officer was examined as PW-4. According to his statement, the complainant Nabi Shah SHO, handed him over the recovered narcotics, the Motorcar bearing No. MNJ 3770 and convicts arrested by him. He mixed the charas of both the plastic bags and weighed which became Ten K.G, separated 10 gram from total stuff and sealed in separate parcel Ii?r chemical analysis. I le prepared card of arrest of accused and site plan (Ex:PW 4/1) on the pointation of complainant as well as eye-witnesses, drafted application for sending the sample to FSL, recorded statements of witnesses under section 161 Cr.PC. Despite lengthy cross-examination nothing material could be extracted from the PWs.
10. Appellants/ convicts were examined under section 342 Cr.P.C., professing their innocence, they put forth a new story by asserting that another person was also travelling in their motorcar. Before reaching to the check-post, that person ran away from the motorcar. They had added that the police searched the lady accused without any lady constable. This led to an altercation between the convicts and the police officials. Thus a false case was registered against them. They further stated that in this respect they have made written complaint to the DSP. However, they have failed to bring on record an iota of evidence in this respect. Even a copy of that complaint was also not produced. The convicts were offered an opportunity for statements on oath and production of evidence in defence. They did not avail such opportunity. Their story appears to be after thought. A huge quantity of narcotics cannot be planted on an innocent man. If at there was an enmity, it could have been settled by planting tew grams of narcotics, but arrangement of such a huge quantity is an uphill task.
11. As for compliance with 5.103 Cr.P.C. is concerned, suffice it to say that compliance of section 103 Cr.P.0 has been dispensed with by virtue of section 25 of Control of Narcotics Substances Act, 1997.
The police officials are as good witnesses, as private persons unless any ill will or enmity is brought on record.
12. Perusal of the record further reveals that one packet from beneath the seat of each convicts/ appellants has been recovered by the complainant, both the packets were mixed together and weighed. From the total contraband 10 grams sample was separated for chemical examination. it was incumbent upon the 1.0 to have weighed and obtained sample from each packet separately.
This would have helped in determining the quantum of sentence under the law. We are unable to determine as to how much quantity recovered from each convict/appellant. In view of the matter, they can only be held liable for the charas in respect of which FSL report is in positive. This would bring the case of the convicts within the ambit of section 9 (a) of the Control of Narcotics Substances Act, 1997, which provides punishment up to the extent of 2 years or fine or both.
Keeping in view the quantity of the charas for which the appellants/ convicts are held liable 16r conviction is so meager that the period which they had already undergone during the trial would meet the ends of justice. Consequently, their sentence of five years RI is reduced to the period already under gone by them behind the bars. The sentence of fine shall also remain intact. On the payment of fine the appellants/ convicts shall be released if not required in any other case or in default each shall undergo six month SI. Both the criminal Appeals i.e Cr. A No.5-B of 2014 and Cr. Ja No.08-B of 2014 are disposed of in the above terms. However, Cr. A No. 09-B of 2014 filed by Noor Alam Khan against the order of confiscation of motorcar bearing No. MNJ-3770 is hereby dismissed.
13. Above are the detailed reasons of our short order of the even date.