' IJAZ AHMAD CHAUDHRY, J.--- We intend to dispose of murder reference sent by the learned Additional Sessions Judge, Mianwali vide judgment dated 6-2-2001, whereby he had found Shaukat Khan, appellant guilty of the offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to death subject to confirmation of this Court under section 374, Cr.P.C. Alongwith Appeal No,365 of 2001 which has.Been filed by ladies namely Mst.
Shahin and Mst. Qadar Jana; appellants and Criminal Appeal No,72/J of 2001 which has been filed by Shaukat Khan against his above said conviction and sentence. Mst. Shahin and Mst. Qadar Jana, appellants were also found guilty of offence under section 9-C and have been sentenced to life imprisonment with a fine of Rs,2,00,000 each. In case of default of payment of fine they would further undergo R.I. For two years. Benefit of section 382, Cr.P.C. Was given to both the ladies. This judgment has arisen out of proceedings in case FIR.' No,133 of 1999 dated 30-9-1999 under section 9(c) of Control of Narcotic Substances Act, 1997 registered at Police Station Harnoli.
2. The brief facts of the prosecution case as narrated by Muhammad Qasim, S.-I. P.W.4 are that on 3-9-1991 he alongwith other Police Officer subordinate to him and 6/7 constables was on patrol duty for checking of drug trafficker and the persons having illicit arms at the Check Post near Police Station Harnoli, when he received secret information about arriving of Car No,1236 LOE from Mianwali side, in which it was alleged that huge quantity of narcotics was being transported to Multan. At about 1-10 a.m. The said car arrived at said Check Post which was stopped by the complainant, and when the car stopped one person who was sitting on front seat with the driver opened the door and made good his escape towards Jungle. His name was later on disclosed as Tanveer Ahmad resident of Kohat. The appellant Shaukat was driver of the car, while two ladies appellants were sitting on rear seat. All the three persons were apprehended. The name of driver was disclosed as Shaukat Khan and the names of ladies were disclosed as Mst. Shahin and Mst.
Qadar Jana, appellants. All the accused were apprehended. The car was searched and 75 kilo of Charas contained in 60 packets and 8 kilo of opium contained in 8 packets was recovered from hidden carbon of doors of car and from underneath the rear seat. 10 grams of Charas was separated from each packet and 10 grams of opium from each packet was separated for sample for the purpose of sending them to the office of Chemical Examiner for analysis, while the remaining Charas and opium was sealed into sealed parcels and the complaint Exh.P.A. Was drafted by P.W.4 and sent the Police Station Harnoli on the basis of F.I.R. Exh.P.A./1 was recorded by Muhammad Arif, Muharer, P.W.1 Recovery memos. Were also prepared, which were attested alongwith other P.Ws. By Dost Muhammad, A.S.-I. P.W.3. After completion of investigation the challan was submitted in the Court of learned Additional Sessions Judge and charge was framed against the appellant, which was denied by them and they claimed to be tried.
3. The prosecution in order to prove the guilt of the accused produced four witnesses. P.W.1, Arif Hussain, Muharer, P.W.1 recorded formal F.I.R. Exh.P.A./1. He took the sample parcels and parcel of opium and Charas in possession and kept them in Mall Khana for safe custody. The sealed sample parcels were handed over to Abid Hussain, P.W.2, who took them to the office of Chemical Examiner. P.W.3, Dost Muhammad, A.S.-I. And, Muhammad Qasim, S.-I. P.W.4 are recovery witnesses who signed the recovery memo. Exh.P.B. Alongwith Muhammad' Afzal Khan, A.S.-I. Who was not produced being unnecessary. After conclusion of the prosecution evidence the appellants/ accused made their statements under section 342, Cr.P.C. And denied the allegations. Shaukat Khan, appellant in reply to question "why is this case against you" replied as under:-- "The witnesses are police officials. They planted a false recovery upon me to show efficiency to the high-ups. During investigation no independent public witness was associated as Musheer of attesting witness."
' Mst. Shahin appellant stated in reply to the question: "what have you to say about recovery? As under:-- "I am teen ager aged 12 years. I alongwith my aunt Qadar Jana aged about 70 years were standing on the road side for going to Chak No,8, Mianwali, at about 8-00 a.m. In the meanwhile, a car stopped there. A man who was sitting on the front seat of the car asked us in Pashto language about our standing. As according to him he was also going to Mianwali side, therefore, we got lift in the car to save money because we are very poor. When the car was stopped by the police and after half hour's discussion with Tanveer, the owner of the above said car, police took us the Police Station Harnoli and there after four days, the police released Tanveer, owner of the car, but after that the police sent us to judicial lock-up. Nothing was recovered from the car in our presence. We got lift. We do not know about the narcotics or any other thing allegedly recovered from the car. I am innocent and have been involved in this case only due to our presence in the car. No alleged narcotics have been recovered from us."
' Similar type of statement was made by Mst. Qadar Jana appellant in her statement under section 342, Cr.P.C. None of the accused persons appeared in defence evidence as his own witness nor they produced any other witness in their defence. After conclusion of the trial the impugned judgment has been passed, which has been assailed through the above said appeals and reference has been sent for confirmation of death sentence to Shaukat Khan, appellant.
5. The learned counsel for appellants contends that the prosecution evidence consists of statements of Dost Muhammad P.W.3 and Muhammad Qasim, 5.-I. P.W.4, who are Police Officers and had not joined any public witness in the recovery proceedings, which is violation of section 103 of Cr.P.C. And the recovery proceeding are liable to be disbelieved. It is further contended that P.W.4, Muhammad Qasim, S.-I. Is the complainant and Investigating Officer as well, therefore, the case against the appellants is doubtful as there is no impartial investigation. It is further contended that there are contradictions in the statements of P.W.3 and P.W.4, which are material and they are not worthy of reliance. Lastly it is argued that the case against Shaukat Khan, appellant is not such that he be sentenced to death as he is only proved as a carrier and is entitled to lesser penalty. He has relied on 1997 SCM R 159 and 2000 PCr.LJ 1536 and prayed for reduction of sentence awarded to the appellant Shaukat Khan.
6. On the other hand, the learned State Counsel has opposed the appeal and prays for confirmation of death sentence of Shaukat Khan, appellant as huge quantity of Charas and opium was recovered from the car, which was being driven by Shaukat Khan, appellant. According to the learned counsel he is not entitled to any leniency as this is a crime against the State and society. It is further contended that the statements of witnesses are worthy of reliance as no material contradiction has been pointed out in their statements. It is further contended that no mala fide has been alleged against the complainant or any other witness to falsely implicate the appellants.
Hence their appeals are liable to be dismissed.
7. We have heard the arguments of the learned counsel for parties and also gone through the evidence and other documents minutely with the assistance of learned counsel for parties. Two witnesses, P.W.3, Dost Muhammad, A.S.-I. And P.W.4 Muhammad Qasim, S.-I. Have been produced by the prosecution to prove the factum of apprehension of the appellants at the spot on 30-9-1999 while travelling in a car bearing Registration No,1236 LOE and that on search 75 kilograms of Charas and 8 kilograms opium was recovered from the said car, which was concealed underneath the rear seat and covers of the doors. Both the said witnesses made consistent statement on material points. The learned counsels for appellants have failed to point out any discrepancy on material points in their statements. Minor discrepancies which have been pointed out are not sufficient to discredit their statements, which are otherwise consistent and natural. We have noted that no enmity or grudge has been alleged against these two witnesses to falsely implicate the appellants in this case. The appellants have been apprehended at the spot by P.W.4, Muhammad Qasim in presence of P.W.3 and this fact has been proved that they were travelling in the said car. The factum of recovery of 75 kilograms Charas and 8 kilograms of opium is proved. The only question is whether the appellants were aware of the Charas and opium lying in the car or not. Shaukat Khan, appellant has taken a specific stand and has admitted his presence at the scene of recovery and also admitted that he was driver of the car. He stated that co-accused Tanveer Ahmad, who ran away from the spot had taken him from his house at Kohat and ordered him to accompany him to Kot Uddu and that while they were going to Kot Uddu the Charas and opium mentioned above was recovered from underneath the rear seat and from the carbon of the doors. The prosecution evidence is that the appellant Shaukat who was driving the car was aware of the presence of Charas and opium being transported on the car to Kot Uddu. Hence the conviction under section 9(c) (ibid) to the extent of Shaukat Khan, appellant is maintained. We find that there is no evidence that he was owner of the. Charas and opium recovered from the car and even it is not asserted by the prosecution. He being driver at the most has played the role of carrier and the real owner has not been apprehended by the police. The lenient view has been taken by the Honourable Supreme Court while awarding sentence to the carrier, hence we reduce the sentence of Shaukat Khan appellant from death to life imprisonment with a fine of Rs,2,00,000 (Rupees two lacs only) and in default of payment of fine he will further undergo R.I. For two years. The benefit of section 382-B, Cr.P.C. Would also go to him. However, Criminal Appeal No,72/J of 2001 stands dismissed. So far as appellants in Criminal Appeal No,365 of 2001 are concerned, they are ladies and we have noted that their stand is that they took lift on the car and they were not aware of the factum of presence of Charas and opium in the car as it was concealed. Their statement is supported by the statement made by P.W.4. During cross-examination he has admitted that the packets were kept in hidden carbons of the doors in a mixed position and they could not be seen by naked eye as they were kept in hidden carbons inside the doors and under the rear seat. In such circumstances, the ladies were not aware of the Charas and opium, which were hidden in the car as they took the lift and were travelling in the car. The prosecution has failed to prove case against them by producing any witness about their involvement in this case alongwith co-accused. Mere presence of these ladies in the car, which has been duly explained, is not sufficient to hold that the prosecution has been able to prove the case against these two ladies. Hence we accept the Criminal Appeal No,365 of 2001 and set aside the conviction and sentence passed against Mst. Shahin and Mst. Qadar Jana, appellants and they are acquitted of the charge. They shall be set at liberty if not required in any other criminal case.
8. As the death sentence of Shaukat Khan appellant has been converted to life imprisonment, the reference for confirmation of his death sentence is replied in negative.