' IJAZ-UL-HASSAN, J.--- This judgment will dispose of Criminal Appeal No,104 of 2002 impugning the judgment dated 5-3-2002 of learned Additional Sessions Judge/Judge, Special Court, Swabi whereby he convicted Mst. Ajab Sultana (40) and Mst. Zeenat (45) sisters inter se, under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced them to suffer 10 years' R.I. And a fine of Rs,10,00,000 each or in default thereof to undergo further S.I. For two years each. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. The prosecution story as disclosed in the F.I.R. Is that on 12-8-2000 P.W. Khalid Naseem Khan, the then S.H.O. Police Station Topi received a secret information that on that day huge quantity of Charas will be smuggled to the down country i,e, Punjab via TarbelaGhazi Road, through :Lady smugglers. A raiding party was constituted which held "Nakabandi" at Pehur Check Post. In the meanwhile, a passenger Bus No,MRC- 1187 was stopped for checking. Two female passengers wearing "Buraqas" were alighted from the Bus and upon their personal search through lady Constable Afsaria' P.W. Charas weighing 16000 grams was recovered from their possession. The Charas was concealed in the jackets worn by the ladies under their shirts. On inquiry, the ladies disclosed their names Mst. Ajab Sultana and Mst. Zeenat respectively. They also stated that the Charas is owned by one Gulzada, resident of Peshawar Cantt. And that they are carriers. Four grams of Charas were separated for chemical examination.. The remaining was sealed into a parcel vide recovery memo. Exh.P.W.2/1 in the presence of marginal witnesses. The ladies were arrested and a case was registered against them under sections 7/9 of the Control of Narcotic Substances Act, 1997 vide F.I.R. No,306 dated 12-8-2000 Police Station Topi, District Swabi.
4. The prosecution in order to prove its case produced four witnesses in all. The accused- appellants in their statements under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged at the instance of local police. They did not examine themselves on oath as required under section 340(2), Cr.P.C. And also did not examine any person in defence.
5. Appearing on behalf of accused-appellants Mr. Noor Alam Khan, Advocate, criticized the impugned judgment on a number of grounds and attempted to argue that despite prior information stated to have been received by S.H.O. Khalid Naseem Khan complainant regarding smuggling/transportation of illicit narcotics to the down country, no independent and disinterested witness has been associated with the recovery and thus legal requirements of section 103, Cr.P.C.
Have been flagrantly violated. He also contended that S.H.O. Khalid Naseem Khan P.W. Was the complainant and he could not be Investigating Officer at the same time, hence the proceedings initiated by him, and the investigation conducted by him were illegal being in violation of sections 19, 20, 21 and 22 of the Control of Narcotic Substances Act, 1997. It is further contended that there are material discrepancies in the statements of the witnesses which damage the prosecution case and thus the appeal is liable to be accepted and it is a fit case for the acquittal of the appellants from the charge as the prosecution has miserably failed to prove the guilt of the appellants. To augment the contention, reliance has been placed on Zahoor Ahmad Awan and another v. The State 1997 SCM R 543 and Asghar Ali v. The State 1996 SCM R 1541.
6. As against this, Mr. Muhammad Jamil Qamar, learned State's Counsel opposed the appeal and submitted that prosecution has sufficiently proved the case against the appellants whose presence in the Bus at relevant time has been accepted by the appellants and in the absence of any enmity, there is no chance of false implication and conviction is liable to be maintained. In the last limb of argument, he submitted that in such-like cases approach of the Court should be dynamic and not static and technicalities should be avoided in order to prove the charge. In this connection, reliance was placed on two cases reported as Munawar Hussain and 2 others v. The State 1993 SCM R 785 and Muhammad Hanif v. The State PLD 2002 Lah.
200.
7. We have heard the arguments of learned counsel for the parties at some length. We have also gone through the material on record with their able assistance.
8. The prosecution has brought sufficient material on file to demonstrate that pursuant to authentic information, a "Nakabandi" was conducted at Pehure Check Post on 12-8-2000 and at about 14-00 hours a passenger Bus No,MRC-1187 was sighted coming from Tarbela-Ghazi Road.
The bus was haulted and during personal search of the accused-appellants through a lady Constable, illicit narcotic i,e, Charas weighing 16000 grams was recovered from their possession.
Both the ladies were arrested and a case was registered against them. On inquiry, they disclosed their names as Mst. Ajab Sultana and Mst. Zeenat, residents of Batkhela. Initially, the ladies attributed the narcotic to one Gulzada, resident of Peshawar Cantt. But subsequently they resiled from their earlier version and stated that Gulzada had no concern with the Charas in question.
9. Adverting to the objection raised by the learned counsel for the accused-appellants regarding non-association of independent and disinterested witnesses with the recovery proceedings despite prior information, it is not denied that non-compliance of the mandatory provisions of section 103, Cr.P.C. Is not fatal and section 25 of the Control of Narcotic Substances Act, 1997 clearly excludes the application of section 103, Cr.P.C. To the cases under the aforesaid Act. The apex Court in Fida Jan v. The State 2001 SCM R 36 made the following observations:- "It may be noted that in cases of narcotics the law enforcing agencies have to keep certain information secret till the last hours relating to the recovery after conducting raid at a particular place. Because if such precautionary measures are not adopted and secret information about concealing or running business of narcotics etc., are allowed to spread out, there would be a raid but without success as in the meanwhile accused persons shall manage to shift the drugs to some other place. Thus, we are inclined to hold that the provisions of, section 20 are directory in nature, therefore, its non-compliance cannot be considered a strong ground for holding that the trial of the accused is bad in the eye of law."
10. In the next limb of argument, learned counsel for the accused-appellants strenuously contended that the evidence on record is discrepant and pregnant with serious infirmities and improbabilities on account of which the accused-appellants are entitled for a finding of acquittal.
Reliance in this connection is placed on Tariq Pervaiz v. The State 1995 SCM R 1345. The learned counsel has not been able to point out any misreading or non-reading of evidence resulting into miscarriage of justice. The prosecution has succeeded to establish its case and the accused- appellants have failed to prove their innocence. It is not denied that under section 29 of the Act the trial Court is empowered to presume that accused facing the trial is in possession of illicit articles unless and until it is proved to the contrary. In the instant case, nothing has been brought on record to clarify position of the accused-appellants. The solitary word of the accused-appellants that they have been charged falsely without a positive attempt on their part to substantiate the same, is of no consequence.
10. Learned counsel for the accused-appellants has further submitted that S.H.O. Khalid Naseem Khan complainant combined in himself the duties of complainant, Investigating Officer and witness to ,the occurrence which has prejudiced the interest of the accused-appellants. Reliance in this respect has been placed on a case reported as Imran Saeed v. The State 2001 PCr.LJ 1365. The submission of the learned counsel does not hold the field. The cited ruling is in respect of an offence under section 489-B, P.P.C. Wherein it was pointed out that it was obligatory for the Investigating Officer to have associated independent witnesses; from the public to witness the recovery memo. The ruling is distinguishable and does not promote the case of accused- appellants in any manner. In Sohrab v. The State 2002 PCr.LJ 344 it was pointed out that there is no legal prohibition for a Police Officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as, it does not, in any way prejudice the accused person. In this case, the mere fact the complainant has worn three hats simultaneously, by itself, is no ground to deprecate the investigation and vitiate the trial.
11. In view of what has gone above, it follows that prosecution has succeeded to establish its case and nothing has been produced in rebuttal.
12. Adverting to the question of sentence, we find that the accused-appellants are first offenders and the narcotic recovered from them was 'less than ten kilograms. The sentence is too harsh and not in consonance with the provisions of section 9(c) of the Act. We reduce the sentence of ten years' R.I. Each to seven years' R.I. Each which will meet the ends of justice. We also reduce the fine from rupees ten lakhs to Rs, One lakh each. In default of payment of fine, the accused-appellants shall undergo further R.I. For one year each. The appellants will be entitled to the benefit of section 382-B, Cr.P.C. Subject to the above modification in the quantum of sentence, this appeal fails which is hereby dismissed.
Sentence reduced.