IJAZ-UL-HASSAN KHAN, J.---The appellants namely Mst.Shamshada wife of Iasraruddin (35/36) resident of Sardar Garhi, District Peshawar and Qaim Shah son of Anwar Shah (46/47) resident of Mashokhel, District Peshawar, were convicted by learned Judge Special Court (CNS) Peshawar under section 9(c) of the Control of Narcotic Substances Act, 1997. Vide Judgment dated 24-3- 2003 each of the appellants having been found guilty was sentenced to undergo imprisonment for life and to pay a fine of rupees two lacs or in default whereof, to suffer two years SI. Through the same judgment, co-accused Musa Khan and Iqbal were declared Proclaimed Offenders.
2. The appellant have challenged their conviction and sentences by way of filing Jail Criminal Appeal No,184 of 2003 and Cr.A.No,185 of 2003 which shall be disposed of by this single judgment.
3. The prosecution story in brief is, that on 3-8-2001 a police party headed by PW Inspector Ismatullah Khan, Police Station, ANF, Kohat had conducted a 'Naqabandi', near F.0 Post, Kotal, Kohat.
At about 9.00 hours, a Flying Coach bearing registration No,3209-K Peshawar was spotted coming from Dara Adam Khel side. The vehicle was stopped. A man and a woman were found sitting on a seat behind the driver's seat. There was a bundle of cloth (Gathri) lying beneath their feet. The said man and woman alongwith the "Gathri" were got down of the Coach. On opening, two packets of Chars and two packets of opium were recovered from the "Gathri". On weighment, the contraband material was found three kilograms and 600 grams (Chars) and one kilogram (opium) respectively. The personal search of woman through lady searcher Mst. Gulshada also led to recovery of six packets of Chars which she had concealed beneath her shirt. On weighment, it was found nine kilograms and 600 grams. A meager quantity was separated for chemical examination.
Rest of the Chars and opium were sealed into parcels. On inquiry, the man and woman disclosed their names as Qaim Shah son of Anwar Shah and Mst. Shamshada wife of Israruddin. Both of them were formally arrested. A 'Murasila' was drafted under section 9 of the Control of Narcotic Substances Act by the complainant Ismatullah SI and sent to the Police Station through F.C.
Muhammad Amin for registration of the case.
4. The prosecution in order to prove its case produced five witnesses namely H.C. Kamin Khan P.W.1, Assistant Director Rehmat Khan P.W.2, Inspector Ismatullah P.W.3, Lady Searcher Mst.Gulshada P.W.4 and L.H.C. Gulmar Jan P.W.S.
5. When examined under section 342, Cr.P.C, the accused repudiated the prosecution allegations and claimed to have been charged falsely. Accused Qaim Shah in his statement recorded under section 340(2) Cr.P.0 stated that:- "I am innocent. In fact I was travelling in a flying coach to Hangu. The lady accused was sitting on another seat alongwith a boy 18/19 years old. When the flying coach arrived at Kotal, the checking was started there. The lady was taken down from the flying coach by the ANF staff and there it was disclosed to them that the passengers including myself that she had been carrying narcotics. The boy sitting with the lady started weeping and as per his hue and cry, the ANF staff wanted to arrest the boy to whom I repeatedly requested that boy being minor may not be arrested, at which the searching officer suspected my relation with the lady accused and so they also arrested me and brought me to the P.S, where they subsequently released the boy and the lady. I am innocent and have no relations whatsoever I also having no knowledge about the narcotics."
6. Mst. Shamshada appellant in her statement under section 340(2) Cr.P.0 stated that:- "The contraband in the instant case was actually owned by co-accused Qaim Shah, who at per the monetary incentives accompanied me from Peshawar. I have no knowledge that what kind of contraband and to what type is the same. I was arrested with him at Kotal Check Post. In fact the contraband is not mine. Being a poor lady I accompanied him."
7. The learned trial Judge after appraisal of the evidence on record found the appellants guilty of the charge and convicted and sentenced them as noted above.
8. Mr. Asadullah Khan Chamkani, Advocate for Qaim Shah appellant after having read the entire prosecution evidence and other material available on record, contended that the learned trial Court had not appreciated the material on record in its true perspective: that mere recovery of contraband articles from a vehicle does not automatically connect an accused person with such contraband articles unless prosecution succeeds in showing that accused person had a conscious possession of the contraband articles; that nothing incriminating was recovered from possession of the appellant and the alleged contraband was shown lying in vehicle in which many other passengers were present at the relevant time and that no independent or disinterested person has been associated at the time of alleged recovery, nor driver or conductor of the vehicle was examined in this regard to support the prosecution case. To augment the contentions, he placed reliance on Nek Muhammad and another v. State (PLD 1995 SC 516), State through Advocate General Sindh v. Qazi Parvez Iqbal and others (PLD 1978 SC 64) and Mushtaq v. State (2002 PCr.L.J 1312).
9. Mr. Kamran Arif, Advocate for Mst. Shamshada appellant submitted that the "Gathri" in question was owned by co-appellant Qaim Shah and that there was no legal evidence on record to connect Mst. Shamshada appellant with tha commission of crime. To supplement the contentions, he placed reliance on Amanullah alias Aman v. The State (2000 PCr.LJ 1536 Lahore) and Abdul Ghani and others v. The State (2001 PCr.LJ 2077).
10. Conversely, the learned State Counsel supported the impugned order of conviction and maintained that keeping in view the material available on the tile, learned trial Judge was fully justified to believe the prosecution evidence and pass an order of conviction. He contended that the discrepancies and contradictions pointed out by learned counsel for the appellants in the statements of prosecution witnesses are insignificant and by no means harmful to the prosecution.
Concluding the arguments, he submitted that in narcotics cases, approach of the Court should be dynamic and technicalities should be over looked in the larger interest of the country and while deciding the case, the Court should consider the entire material as a whole and if it is convinced that the case is proved, then conviction should be recorded notwithstanding procedural defect.
Relied on Munawar Hussain and others v. The State (1993 SCMR 7890).
11. We have heard at length the arguments of learned counsel for the parties. We have also perused the record with their able assistance.
12. We first take up the case of Qaim Shah appellant. The prosecution case is that at the time of checking of the vehicle, Qaim Shah appellant was sitting with Mst. Shamshada, co-appellant on a seat behind the driver's seat. A bundle of cloth "Gathri" was lying beneath their feet. Qaim Shah and Mst. Shamshada were brought down. On opening the "Gathri", Chars and opium were recovered therefrom. It is in the statement of Mst.Shamshada, co-appellant that the "Gathri" was owned by Qaim Shah appellant and that she had no concern with it. Qaim Shah appellant disowned the "Gathri" in question and narrated a different story disclosed in his statement under section 340(2), Cr.P.C. The explanation offered by the appellant for false implication, is not plausible A He has not been able to explain the purpose of his travelling in the vehicle with a stranger i,e, Mst. Shamshada, co-appellant. It is an accepted principle of law that when an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether. The prosecution witnesses had no enmity or grudge against the appellant to involve him in the case. Huge quantity of Chars and opium has been recovered from the "Gathri" under reference and the prosecution witnesses are consistent regarding the time and place of occurrence and recovery of artic les and the manner in which it has been effected. It cannot be believed that such a large quantity of contraband material shall be planted by the police in the case just to implicate the appellant for nothing. The submission that compliance of the provisions of section 103, Cr.P.0 was not made in the case as no two respectable persons of the locality were associated, has no force firstly for the reason that provision of section 103, Cr.P.0 has been excluded under the provision of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions of section 20 of the Act are directory in nature, therefore, its non-compliance cannot be considered as a strong ground for holding that the trial of the appellant is bad in the eye of law whereas on the other, it is not denied that the main aim and object of enacting of section 103, Cr.P.0 is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of official witnesses in any other circumstances. Testimony of a police official cannot be discarded only on the ground that he is a police official. Official witnesses are as good as private witnesses. In this context, there is a wealth of case-law on the point that police officials are competent witnesses to attest a recovery memo. There is consistent opinion of the superior Courts that police officials are competent witnesses of recovery memo and thus contention of the learned counsel would not cut much ice to absolve the appellant from the circumstance of recovery of Chars and opium from his possession. Fida Jan v. The State 2001 SCM R 36.
13. It was also contended by learned counsel for the appellants that on material particulars, prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even in absence of defence evidence cannot result into conviction of appellants. This submission is also without force. The learned counsel has not been able to point out any discrepancy or flaw in the prosecution case so as to render the impugned judgment as not sustainable. Munawar Hussain and two others v. The State 1993 SCM R 785 and Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196 Peshawar.
14. Adverting to the case of Mst. Shamsdaha appellant, we find that personal search of the appellant resulted into recovery of huge quantity of Chars from her possession. The recovery has been proved satisfactorily through evidence furnished by P. Ws. Ismatullah complainant, Mst.
Gulshada and LHC Gul Mar Jan. The witnesses have been cross examined at length and even then defence counsel failed to shatter their evidence. The discrepancies pointed out by the learned counsel are of no importance. Anyhow, they do not go to the root of the case. So far as the cases cited by learned counsel for the appellants is concerned, each criminal case stands on its own footings. The facts and circumstances in one case may not be quite similar on all fours to the other.
There may be circumstances so as to give benefit of doubt to the accused. But in the instant case, we are fully satisfied that the prosecution has been successful in proving its case against the appellants and no exception can be taken to the Judgment of trial Court. Resultantly, the appeals being meritless are dismissed. Conviction and sentences recorded by the trial Court are maintained. The appellant shall be entitled to benefit of section 382-B, Cr.P.C.