' IJAZ-UL-HASSAN KHAN, J.--- Mst. Anwar Bibi wife of Murad Khan, resident of Civil Quarters, Peshawar appellant, her son Masood Khan and nephew Shah Zaman (non-appellants) were tried by learned Judge, Special Court (C.N.S.), Peshawar Camp Court Kohat for offences under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997, by the said judgment, dated 12-6-2001 the appellant and non-appellants were found guilty and they were convicted under section 9(c) of the Act and sentenced to imprisonment for life and a fine of Rs,10,00,000 (each) or in default of payment to undergo further S.I. For three years each. Benefit of section 382-B, Cr.P.C. Was also extended to them.
2. Feeling aggrieved Mst. Anwar Bibi has filed instant Criminal Appeal No,307 of 2001 through Jail Authorities which is before us for consideration.
3. Concisely stated facts of the case are that pursuant to information stated to have been received by Assistant Director Rehmat Khan, Incharge Police Station ANF, Kohat on 16-2-1999 that on the said date a heavy quantity narcotics will be smuggled to Karachi via Kohat, a Police party comprising Inspector Ihsanul Haq and other ANF staff was constituted. The police party conducted Nakabandi at Lachi Bannu, Kohat Road near Grid Station. In the meanwhile, a bus bearing Registration No,JA- 9861 was sighted coming from Kohat side. During the search a box was found lying on the roof of the bus. The box was brought down. On inquiry from the passengers Mst. Anwar Bibi and her companions Masood Khan and Shah Zaman claimed the ownership of the box. The box was opened through a key provided by Mst. Anwar Bibi. Apparently there were clothes in the box. On opening the bottom of the box, fifteen packets of contraband heroin were recovered therefrom. The heroin was weighed and found 13 kilograms and 500 grams. One gram each from each packet was separated and dispatched to the Chemical Examiner for analysis. The remaining was sealed into different parcels. A Murasila was drafted and the accused persons were formally arrested and a case was registered against them under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 vide F.I.R. No,3, dated 16-2-1999 Police Station ANF Kohat.
4. The prosecution in order to prove its case produced six witnesses in all. Inspector Asmatullah Khan (P.W.1) partly investigated the case, produced Masood Khan and Shah Zaman (co-convicts) before the Magistrate for recording their confessional statements and obtained police custody of the accused persons. It is in his cross-examination that names of Hukam Khan and Hasham Khan and one other were disclosed by the co-convicts as owners of the recovered contraband. He also stated that the co-convicts had stated before him that they were carrying the narcotics as carriers.
Taj Muhammad Khan, Senior Civil Judge/Judicial Magistrate Kohistan (P.W.2) stated that Masood Khan and Shah Zaman were produced before him by the local police. He recorded their confessional statements after observing all the legal formalities. LHC Feroz Khan (P.W.3) supported the prosecution story and stated that he is one of the marginal witnesses to recovery memo.
(Exh.P.C.) vide which the contraband narcotics was taken into possession by Inspector Ihsanul Haq P.W. Inspector Mir Badshah (P.W.4) received the report of the Chemical Examiner (Exh.P.E.) on 10-3- 1999 and placed the same on file. He also partly investigated the case. LHC Shah Faisal (P.W.5) was entrusted with the warrants (Exh.P.W.5/1 and Exh.P.W.5/2) under section 204, Cr.P.C. Against Hakim Khan and Hasham. Khan. He returned the same unserved. He was also entrusted with the proclamation notices (Exh.P.W.5/3 and Exh.P.W.5/4) against the above named accused. Inspector Ihsanullah Khan (P.W.6) confirmed having carried out the investigation in this case and stated that Mst. Anwar Bibi appellant claimed the ownership of the box. The key of the box was also in her possession and she provided the same to him. Co-accused were sitting with the appellant in the same bus. According to the witness challan in the case was submitted by Assistant Director, Rehmat Khan, ANF, Kohat on 18-5-1999.
5. The appellant in her statement recorded under section 342, Cr.P.C. Admitted that on 16-2-1999 she was travelling in Bus No,JA-9861 alongwith her son Masood Khan and nephew Shah Zaman but denied the recovery of any incriminating material from her possession. In answer to a question as to why the prosecution witnesses have deposed against her, she stated that they are police officials who are interested in the success of the case and that she has been falsely implicated.
Regarding confessional statements of Masood Khan and Shah Zaman she maintained that they remained in police custody and due to torture and fear of police, they professed the guilt and made confessional statements. She declined to produce evidence in defence.
6. Appearing on behalf of the appellant, Mr. Noor Alam Khan, Advocate straneously contended that no recovery was effected from the possession of the appellant; that P.Ws. Have contradicted one another on the material points; that no one from the public was associated during recovery proceedings in compliance of section 103, Cr.P.C. That negligible quantity of heroin was sent to the expert in violation of section 36 of the Act and that the story advanced by the prosecution was not plausible. Concluding the arguments, the learned counsel submitted that the sentence awarded to the appellant is harsh and same may be reduced adequately in order to meet the ends of justice.
7. Mr. Hamid Farooq Durrani, learned Deputy Attorney-General, while controverting the arguments of learned counsel for the appellant, seriously contended that prosecution has succeeded to produce overwhelming evidence on the file to implicate the appellant and her companions with the commission of crime and keeping in view the heavy quantity of heroin recovered from the possession of the appellant, she is not entitled for any leniency in the quantum of sentence.
8. We have carefully gone through the arguments rendered by t learned counsel for the parties, have examined the material available on record and have also gone through the evidence of witnesses.
9. Two witnesses, namely Inspector Ihsanullah (P.W.6) and LHC Feroz Khan (P.W.3) have been produced by the prosecution to prove the factum of apprehension of the appellant and co- convicts on 16-12-1999 while travelling in Bus No,JA-9861 and recovery of contraband heroin from the box of the appellant. The factum of arrest has not been denied. Both the said witnesses made consistent statements on material points. The learned counsel for appellant has failed to point out any discrepancy 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 witnesses to falsely implicate the appellant in this case. The statements of witnesses are worthy of reliance as no material contradiction has been pointed out in their statements. No mala fide has been alleged against the complainant or any other witness to falsely implicate the appellant. It has been contended with justification that such huge quantity cannot be thrust upon the lady appellant in absence of tangible, cogent and concrete enmity and that has not been proved by the defence.
10. It has been vehemently contended by learned counsel for the appellant that despite prior information stated to have been received in this case, mandatory provisions of section 103, Cr.P.C.
Have not been complied with and no disinterested and unconnected witness from the locality has been associated with the proceedings which had rendered the recovery highly doubtful. The submission carries no weight in view of section 25 of the Control of Narcotic Substances Act, 1997.
Further, there is no presumption that police witnesses are liars. The presumption that a person acts honestly, applies as much in favor of a police official as of other person and their testimony cannot be excluded except for valid reasons and there seems to be no justification to exclude their evidence from consideration. One of the prosecution witnesses namely LHC Feroz Khan (P.W.3) who stood marginal witness to recovery memo. (Exh.P.C.) fully supported the recovery of heroin and we see no reason to discard his testimony simply for the reason that he is a police witness.
11.As for the contention that out of the entire lot i,e, 13-1/2 Kgs. Heroin, only a negligible quantity has been dispatched to the Chemical Examiner by the police and the report though in positive should be ID considered to that extent only, the submission is meritless in view of the provisions of section 36 of the Act. It is not denied that 'sample' is always part of the total and it does not require that whole quantity should be sent to the examiner for the purpose of test.
12. Learned counsel for the appellant has also asserted that the complainant has combined in himself the dual function of complainant as well as investigator which has prejudiced the interest of the appellant. This submission is also without substance. No prejudice appears to have been caused to the appellant. The investigation cannot be depreciated and looked with suspicious eye.
13. Pursuant to above discussion we fmd that prosecution has brought sufficient material on record to connect the appellant with the commission of crime and consequential guilt.
14. In the end, the learned counsel pleaded for reduction in sentence. He urged that the sentence of fme is grossly inadequate and may be reduced appropriately. The request is not seriously opposed. We consider it appropriate and in the interest of justice to reduce the sentence of fme from Rs,10,00,000 to Rs,20,000 or in default thereof to S.I. For two months and we order accordingly.
With this modification the appeal fails which is hereby dismissed.