IJAZ-UL-HASSAN, J.---Appellants Abdul Majid son of Baz Mir and Mullah Abdul Ghafar son of Aslam, both residents of Afghan Refugees Camp, Akora Khattak, Nowshera, were tried by learned Sessions Judge/Judge Special Court, Kohat under section 9 of the Control of Narcotic Substances Act, 1997. At the conclusion of trial, vide judgment dated 2-10-2001 the appellants having been adjudged guilty, were convicted under section 9(c) of the aforesaid Act and sentenced to imprisonment for life and a tine of Rs. One Million each or in default of payment of fine to undergo simple imprisonment of two years with the benefit of section 382-B, Cr.P.C.
2. The appellants, feeling dissatisfied, have filed instant Jail Criminal Appeal No.369 of 2001 assailing their conviction and sentence.
3. The prosecution story in brief is, that on 7-9-1999 at about 11-00 hours complainant Zarin Khan P.W., Inspector Police Station A.N.F., Kohat with a police party was present at 'Kotal' Check Post for checking of Narcotics. In the meanwhile, a bus bearing No.RIR-6375 was sighted coming from Darra Adam Khel side. The bus was stopped. During the checking, a gunny bag containing three iron/zinc dish plates, was found lying on the -roof of the bus. On inquiry from driver of the bus, it revealed that the bag belonged to the passengers sitting at seats Nos.35 and 36 of the bus. The said passengers and the dish plates were brought down from the bus. The passengers disclosed their names as Abdul Majid and Mullah Abdul Ghaffar. They claimed its ownership. The dish plates were broken and 5 kilograms of Charas from the cavity of each dish plate totalling 15 kilograms was recovered. Four grams of Charas from each dish plate was separated and sealed into parcels for chemical examination. The remaining Charas was also sealed into parcel. On personal search of Abdul Majid, a chit was recovered from the pocket of his waist coat. Similarly on personal search of Abdul Ghaffar a travelling ticket for seats Nos.35 and 36 was recovered from the pocket of his waist coat. The contraband Charas, dish plates, chits and the travelling tickets were taken into possession vide recovery memo. (Exh.P.C) in the presence of marginal witnesses. The accused were arrested and a case was registered against them under section 9 of the Control of Narcotic Substances Act, 1997.
4. In proof of the charges against the appellants the prosecution produced five witnesses at the trial. Inspector Mir Badshah (P.W.1) stated that on receipt of 'Murasila' sent by Zarin Khan, P. W., he registered the case vide F.I.R. No.28 on 7-9-1999. Sher Wali (P.W.2) driver of Bus No.RIR-6375 stated that on 7-9-1999 he left Peshawar for Karachi. Abdul Majid and Mulla Ghaffar were also present in the bus at seats Nos.35 and 36. They had the luggage in a gunny bag which was kept on the roof of the bus. At the time of checking the accused disclosed that the luggage belonged to them. They alongwith the Inspector climbed over the roof of the bus. The Charas was detected by the Inspector. The accused were acquainted with Pashto, however, they were Persian-speaking.
Inspector Zarin Khan (P.W.3) confirmed having conducted investigation in the case and stated that on 7-9-1999 at 11-00 hours alongwith other contingent of ANF Staff, he was present at Kotal Check Post when Bus No.RIR-6375 coming from Dara Adam Khel side was stopped and during checking a gunny bag lying over the roof of the bus was opened and three dish plates of iron/zinc were recovered therefrom. The plates were broken and Charas was recovered from their secret cavities.
On weighment it was found 15 kilograms. The accused admitted that they are owners of the gunny bag. Four grams each was separated, sealed into parcel and sent to Chemical Examiner for report.
The remaining contraband was also sealed. The accused were arrested and a case was registered against them. It is in his cross-examination that he climbed the roof of the bus for search of the luggage all alone. He was unable to understand the language spoken by the accused. He denied the suggestion that accused were falsely charged. Head Constable, Feroz Khan (P.W.4) stated that he is marginal witness to recovery memo. (Exh.P.C.) vide which Inspector Zarin Khan P.W. Recovered and took into possession 15 K.Gs. Of Charas contained in three dishes lying on the roof of Bus No.RIR-6375 in a bag. The Charas was weighed on the spot in his presence. The accused namely Mulla Ghaffar and Abdul Majid travelling in the said bus as passengers, claimed the ownership of the dishes containing Charas. They were alighted from the bus and arrested. Under the cross- examination he stated that he alongwith Inspector Zarin Khan climbed the roof of the bus. He had signed the chit or ticket. The gunny bag from which the Charas was recovered is present in Court.
Rehmat Khan, A.D./Incharge Police Station ANF, Kohat examined as P.W.5, stated that on completion of investigation in the case, he submitted complete challan against the accused on 21- 10-1999. The remaining contraband Charas was destroyed by the order of Sessions Judge/Judge Special Court, Kohat dated 12-6-2000. A sample of 50 grams was obtained and sealed into parcel (Exh.P.6). He placed photostat copy of the destruction certificate (Exh.P.W.5/2) issued by Additional Sessions Judge, Peshawar.
5. In their statements recorded under section 342, Cr.P.C. The accused denied the prosecution allegations and claimed to have been charged falsely. According to them they tried to explain the actual position to the Investigating Officer but on account of having no acquaintance with Persian language, the Investigating Officer could not understand their point of view to unearth the truth. No defence evidence was produced nor any of the accused appeared as this own witness as provided under section 340(2), Cr.P.C.
6. The learned trial Judge after having gone through the evidence produced by the accused and other material passed the judgment in terms as stated above, holding that prosecution has succeeded to establish its case beyond shadow of reasonable doubt and no ill-will or motive has been shown on the part of the police for falsely implicating the accused persons in this case.
7. Mr. Ali Jamil Qazi, Advocate for the appellant has argued that the learned trial Judge has erred in.
Law while convicting the appellants solely on the basis of uncorroborated statement of complainant Zarin Khan Inspector. He maintained that the appellants had no hand in the smuggling of contraband Charas and that they have been falsely implicated in the case. The learned counsel also disputed the validity of recovery memo. (Exh.P.C) on account of non-- compliance of the mandatory provisions of section 103, Cr.P.C. Concluding the arguments the learned counsel submitted that prosecution story is highly doubtful and the learned trial Judge was not justified to place implicit reliance on it and record conviction and sentence against the appellants.
8. Mr. Hamid Farooq Durrani, Deputy Attorney-General, on the other hand, defended the impugned judgment and the ensuing conviction and sentence and contended that prosecution has abundantly proved its case through evidence and the appeal merits dismissal.
9. We have heard, at length the arguments and submissions of learned counsel for the parties. We have also perused the record with their assistance.
10. It is the case of the-prosecution that on 7-9-1999 at about 11-00 hours Inspector Zarin Khan, who is complainant in this case conducted search of Bus No.RIR-6375 at Kotal Check Post and found a gunny bag placed on the top of the bus. On inquiry, the accused-appellants stated that they are owners of the bag. The bag was brought down and opened. Three dish plates of iron/zinc were found in the bag. The plates were broken and the contraband Charas was recovered therefrom. It was weighed on the spot and found 15 kilograms certain portion of the Charas was separated for chemical examination and the remaining was sealed into parcel (Exh.P.C) witnessed by LHC Feroz Khan. P.W. And Countable Zahoor Shah of Police Station, ANF, Kohat.
11. Inspector Zarin Khan (P.W.3) and H.C., Feroz Khan (P.W.4) have been produced by the prosecution to prove the factum of apprehension of the accused appellants on 7-9-1999 while travelling in Bus No.RIR-6375 and recovery of contraband Charas from the gunny bag owned by the appellants. The statements of these witnesses are also corroborated by the statement of Sher Wali (P.W.2) driver of the bus. Zarin Khan and Feroz Khan P. Ws. Are stated to have deposed falsely against the appellants in order to earn credit but no enmity has been established by the appellants for their false implication in the case. When asked as to what enmity has been suggested by the defence against police, learned counsel for the appellants could not reply properly on the query with regard to enmity. As far as the driver of the bus is concerned, he is totally an independent and an unconnected person and he has fully supported the prosecution version. He was subjected to lengthy and searching cross-examination to shatter his veracity but nothing could come out from his mouth going in favour of the appellants. The appellants in their statements recorded under section 342, Cr.P.C. Repudiated the prosecution allegations and claimed to have been falsely roped in. There is nothing on record to substantiate the contention. It is not denied that under section 29 of the Act (ibid) the trial Court is empowered to presume that accused facing the trial is in possession or illicit articles unless and until it is proved to the contrary.
12. As regards the next contention regarding non-compliance of the provisions contained in section 103, Cr.P.C., we find that the objection is not valid. Non--compliance of section 103, Cr.P.C. Is not fatal and section 25 of the Act (ibid) clearly excludes the application of section 103. Cr.P.C. To the cases under the aforesaid Act.
13. Having considered the matter from each and every angle, we are confident that the appellants, who happen to be Afghan Refugees, were involved in the smuggling/ transportation of contraband Charas from Peshawar to Karachi and they were apprehended at Kotal Check Post by the ANF Staff while travelling in Bus No.RIR-6375. The judgment of the learned trial Judge is biased on sound reasons, who has taken proper care of the entire record and has correctly convicted and sentenced the; appellants. Coming to the quantum of sentence of fine, we find ourselves in agreement with learned counsel for the appellants that same is inadequate and warrants interference. Accordingly we reduce the sentence of fine from Rs.,10,00,000 to Rs.20,000 or in default thereof to S.I. For two months. With this modification in sentence of fine and default thereof, we dismiss the appeal and maintain the impugned judgment.