ISHTIAQ IBRAHIM, J. Muhammad Imtiaz son of Muhammad Boota, the appellant, through the present Criminal Appeal has challenged the validity of the judgment and order dated 14.12.2022 rendered by learned Additional Sessions Judge-XI/Judge Special Court, Peshawar, in case FIR No.728 dated 14.05.2022 under section 9(d), KP CNSA, 2019, registered at Police Station Chamkani, District Peshawar, and the appellant was convicted under section 9(d) CNSA and sentenced to undergo life imprisonment and to pay fine -of Rs.500,000/- or in default of payment of fine the accused shall further undergo on year simple imprisonment. Benefit of section 382-B, Cr.P.C. was extended to him.
2. The brief facts of the prosecution case are that on 14.05.2022 Muhammad Saeed Khan SI along with other police contingent were present at the place of occurrence had received information about trafficking of narcotic in a motorcar bearing Registration No.LEH-4753; that at 12:00 hours the said motorcar reached the spot, which was signaled to stop; that on query its driver disclosed his name as Muhammad Imtiaz son of Muhammad Bota; that the vehicle in question was searched, which led to the recovery of two packets heroin i.e. one packet driver side gate and the other packet from the other front side gate; that upon weighment each packet came out 1000 grams; that the complainant separated sample of five grams heroin from each packet for chemical analysis, sealed into parcels Nos.1 and 2 while the remaining quantity of heroin was sealed in parcel No.3; that the complainant arrested the accused, took into possession the contraband along with vehicle in question through recovery memo, drafted murasila and sent the same to police station for registration of case FIR against the accused.
3. After completion of investigation, complete challan against the accused was submitted before the Court. Formal charge against the accused was framed to which he did not plead guilty and claimed trial.
4. The prosecution in support of its case, examined as many as eight witnesses and after closure of the prosecution evidence, statement of accused under section 342, Cr.P.C. was recorded, wherein he denied the allegations levelled against him by the prosecution. He neither wished to be examined on oath under section 340(2), Cr.P.C. nor opted to produce defense evidence.
5. On conclusion of trial, the learned trial Court after hearing arguments of the learned counsel for the parties and thrashing out the evidence on record, vide impugned judgment convicted and sentenced the appellant as mentioned in the opening para of this judgment. Having aggrieved from his conviction and sentences, the appellant, impugned the same before this Court through the instant Criminal Appeal.
6. Arguments of learned counsel for the parties heard and available record gone through with their able assistance.
7. Muhammad Saeed Khan SI (PW-4) is complainant of the case and reiterated the same facts, which he has mentioned in the murasila (EX PB). This PW in the murasila as well as in his Court statement stated that he handed over the case property, murasila and motorcar to Muhammad Ali and Haris for taking the same to Police Station, drafted application (EX PW 4/3) to the FSL and on his pointation, the Investigating Officer prepared the site plan. Muhammad Ali constable No.7563 (PW-07) deposed that on 14.05.2022 he along with constable Haris were present on Nakabandi at Motorway with Muhammad Saeed Khan SI, intercepted motorcar in question, during search of the vehicle one packet heroin from driver side gate and one packet heroin from left side front gate were recovered, upon weighment each packet of heroin came out one KG; that the complainant separated five grams heroin from each packet for chemical analysis, sealed into parcels Nos. 1 and 2 while the remaining quantity of heroin was sealed in parcel No.3; that the complainant took into possession the contraband along with motorcar in question through recovery memo (EX PW4/1) which correctly bears his signature and that of Haris as a marginal witness to the said memo, that the complainant drafted murasila (EX PB); B that the complainant handed over the case property, murasila and motorcar to him and Haris for taking the same to police station, which they took to the Police Station and handed over murasila and accused to Ghulam Haidar Khan SI while case property to Moharrir Essa Khan and in this regard his statement under section 161, Cr.P.C. was recorded by the I.O. Essa Khan AMASI (PW-1) deposed that on 14.05.2022 constable Muhammad Ali and Haris brought case property (parcels Nos. 1 to 3), murasila and motorcar No.4753 to Police Station; that he received case property and kept the same in Malkhana and parked the vehicle in premises of Police Station and in this regard he made entry in register No19 (EX PW 1/1) while the contents of murasila were incorporated into FIR by Ghulam Haidar Khan SI. Ghulam Haidar SI (PW- 05) deposed that on 14.5.2022 constable Muhammad Ali and Haris brought case property (parcels Nos. 1 to 3), murasila and motorcar No.4753 to Police Station; that he incorporated the contents of murasila into FIR (EX PA) and in this regard his statement under section 161, Cr.P.C. was recorded by the I.O. Imran Ali MASI (PW-8) deposed that on 17.05.2022 he handed over case property of the instant case i.e. parcels Nos. 1 and 2 along with route certificate to Bakhtiar DFC for taking the same to FSL, accordingly he took the parcels to the FSL and brought back the route certificate, which he placed on register No.21 and in this respect his statement under section 161, Cr.P.C. was recorded by the I.O. Bakhtiar DFC No.715 was examined as (PW-2), who deposed that on 17.05.2022 he was handed over the case property of this case i.e. parcels Nos. 1 and 2 along with route certificate by Imran Ali Muharrir for taking the same to the FSL and accordingly he took the same and delivered in FSL to the concerned official and brought back the route certificate and handed over to Muharrir and the I.O. recorded his statement under section 161, Cr.P.C. All the PWs have been subjected to lengthy cross-examination, but, nothing destructive to prosecution case and helpful to accused has been elicited from their mouth. It is, however, added here that even if there are minor discrepancies in the statements of the PWs and if these minor discrepancies do not go to the roots of the case and are insignificant in nature, the same are to be ignored. In any case PWs stood to the test of cross-examinations successfully and no discrepancies can be found in their statements.
Safe custody/transmission of contraband from the spot to the Police Station and thereafter to the FSL has been established.
8. True that menace of narcotic's is raising day by day, the same need to be dealt with iron hand, albeit according to law, but, being Courts of law balance is to be maintained between the prosecution and the defense and the punishment must commensurate with the offence charged provided by the law. For ready reference subsection (d) of Section 9 of the KP CNSA, 2019 is reproduced hereunder; "death, imprisonment for life or imprisonment for a term which may extend to fourteen years and with fine which may extend up to rupees one million and not less than five lacs, if the quantity of narcotic substances exceeds the limits of one kilogram: Provided that if the quantity exceeds ten kilograms, the punishment shall not be less than imprisonment for life in any case."
It is clear from the bare reading of the ibid provision that the Court has discretion while awarding the question of sentence in question and particularly when the quantity of contraband is less then ten KG and when the quantity of contraband exceeds ten KG, then the proviso clearly provides that the imprisonment shall not be less than life imprisonment. In the present case two Kilograms heroin have been recovered from the secret cavities made in both front gates of the motorcar in question, which was driven by the appellant, but, the same is not hit by the proviso and the Court has been given discretion by the legislature, therefore, by looking into the circumstances of the case and there is nothing on record to show previous involvement of the appellant in such like offences, hence the sentence of life imprisonment is reduced to four years imprisonment. The fine amount of Rs.500,000/- is maintained, however, in default of payment of fine, the appellant shall further undergo simple imprisonment for fifteen days. Benefit of section 382-B, Cr.P.C. extended to the appellant by the learned trial Court is also maintained.
9. In view of the above, the appeal is dismissed; but with modification in the sentences of imprisonment awarded to the appellant, as mentioned hereinabove.