' ASIF SAEED KHAN KHOSA, J.--- Shahbaz Ahmad and Muhammad Naeem appellants were convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 26-4-2003 rendered by the Additional Sessions Judge, Sailkot and were sentenced to rigorous imprisoninent for fourteen years each and a fine of Rs.1,000,000 each or in default of payment thereof to undergo rigorous imprisonment for one year each. The benefit under section 382-B, Cr.P.C. Was extended to the appellants. The appellants have challenged their convictions and sentences before this Court through the present appeal.
2. The prosecution's case unfolded in the F.I.R. Was that the present appellants were apprehended by a police party at 11-30 a.m. On 1-7-1999 at a railway-crossing near Allama Iqbal Chowk, Sialkot and Charas weighing two kilograms and heroin weighing 223 grams was recovered from the dashboard of the motorcar in which the appellants were travelling at that time. F.I.R. No.215 was subsequently registered at Police Station, Kotwali, Sialkot in that regard at 11-40 a.m. On 1-7-1999 at the instance of Riaz Ahmad Dar, S.-I./S.H.O. For an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. The Chemical Examiner had subsequently found the samples of the recovered substance to be contraband narcotics. Upon completion of the investigation a challan was submitted before the learned trial Court.
3. At the commencement of the trial the learned trial Court framed a charge for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 against the appellants to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced five witnesses in support of its case against the appellants. Liaquat Ali, F.C. (P.W.1) had taken two parcels to the office of the Chemical Examiner on 20-7-1999. Sardar Ali, F.C. (P.W.2) had kept the parcels of the recovered substance in safe custody in the Mal Khana of the relevant Police Station. Haji Faqir Hussain, S.-I. (P.W.3) had conducted the investigation of this case after the alleged recovery from the appellants' possession. Riaz Ahmad Dar, S.-I./S.H.O. (P.W.4) was the head of the relevant police party and he had not only recovered the contraband substance from the appellant's possession but he had also lodged the F.I.R. In respect of such recovery. Manzoor Ahmad, S.-I. '(P.W.5) was a witness of the alleged recovery from the appellant's possession. In their statements recorded under section 342, Cr.P.C. The appellants had denied and controverted the allegations of fact levelled against them by the prosecution and had professed their innocence. They had maintained in their statements that they had been falsely implicated in this case by the local police at the behest of one Sheikh Ijaz Ahmad who was a member of the Punjab Provincial Assembly and a former Minister. However, the appellants had opted not to make statements on oath under section 340(2), Cr.P.C. And they did not produce any witness in their defence. Various documents were produced by the appellants in their defence. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal before this Court.
4. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the alleged recovery of narcotics from the appellant's possession was nothing but sham; the alleged recovery had been effected from a public place at about midday but no witness from the, public had been associated with the alleged recovery; the appellants had a pitched enmity with Sheikh Ijaz Ahmad, a member of the Punjab Provincial Assembly and a former Minister, and with one Babu Khan and the appellants had been falsely implicated by the local police at the behest of the said Sheikh Ijaz Ahmad; on many previous occasions different criminal cases of similar nature had been registered against the appellants and some other members of their family but in all such cases they had been acquitted; the prosecution's case against the appellants was full of improbabilities as well as contradictions; and the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court. He has gone on to point out that the appellants have a long history of involvement in various cases of murder, robbery, possession of illicit weapons and dealing in narcotics, their antecedents are sullied and tarnished and, thus, the appellants do not deserve any sympathy of this Court.
5. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have noticed that in this case a sizable quantity of contraband narcotics had been recovered from the appellant's possession and it is not readily believable that the local police had itself planted such a quantity of narcotics upon the appellants. The report of the Chemical Examiner regarding the samples of the recovered substance was in the positive. All the recovery witnesses in this case were public servants and the learned counsel for the appellants has failed to point out any background of bitterness or between the recovery witnesses produced in this case and the appellants so as to prompt the former to falsely implicate the latter in a case of this nature.
The said recovery witnesses had made consistent statements before the learned trial Court regarding all the material aspects of this case and we have found no reason for not relying upon such witnesses qua the recovery effected from the appellant's possession. The learned counsel for the appellants has drawn our attention to some discrepancies between the statements of different prosecution witnesses regarding the time spent by them at the place of recovery, the use of weights and scales for weighing the recovered substance and the place of handing over of the recovered substance by the recovery witnesses to the Investigating Officer. But we have found such discrepancies to be minor in nature and not fatal to the main allegation of recovery of narcotics from the appellant's possession. Such variations in the statements of the prosecution witnesses could understandably have been a result of efflux of time between the recovery and the making of their statements by these witnesses before the learned trial Court.
6. The statements made by the appellants under section 342, Cr.P.C. Extensively referred to a background of enmity between the appellants and Babu Khan group but the appellants had failed to point out even a single instance showing that the recovery witnesses in this case were inimical towards and motivated against the appellants or that they had any connection with Babu Khan group. The appellants had also maintained in their statements recorded under sections 342, Cr.P.C.
That the local police had falsely implicated the appellants in this case at the behest of Sheikh Ijaz Ahmad, a member of the Punjab Provincial Assembly and a former Minister, but the appellants had miserably failed to bring anything on the record of this case to establish that the recovery witnesses produced in this case were in fact under the influence of the said Sheikh Ijaz Ahmad and they had falsely booked the appellants in this case at the instance of Sheikh Ijaz Ahmad. The appellants had failed to make any statement on oath under section 340(2), Cr.P.C. And they had also failed to produce any witness in their defence. The documentary evidence produced by the appellants before the learned trial Court was not of much avail to the appellants in the case in hand. The document produced on the record as Exh.D.A. Shows that Shahbaz Ahmad appellant had been acquitted by a Court in the year 1999 in a case pertaining to an offence under section 392, P.P.C. Which case had originated in the year 1992. The judgment brought on the record as Exh.D.B. Shows that in a case pertaining to recovery of heroin originated in the year 1993 a brother of Shahbaz Ahmad appellant had been acquitted by a Court in the year 2003. Exh.D.C. Is a document showing that Muhammad Naeem appellant was acquitted in a case of recovery of heroin and that case had originated in the year 1993 and was decided in the year 2000. We have observed in this context that the said documents produced in defence pointed towards the appellant's previous implication in cases of robbery and dealing with narcotics and the statements made by the appellants under section 342, Cr.P.C. Depicted the appellants as gangsters who were pitched against their rival gangs which feud had led to multiple murders, etc. In the past. We have further observed that the documents mentioned above did not contain anything at all to suggest that the appellants and the other inembers of their family had been falsely entangled in those cases at the behest of Sheikh Ijaz Ahmad or Babu Khan group. Be that as it may the fact remains that the police officials who were produced as recovery witnesses in the present case were never involved in the above mentioned criminal cases in any capacity whatsoever and, thus, the acquittal of the appellants in the above mentioned criminal cases could not react upon the Veracity of the recovery witnesses produced in the present case. It may not be lost sight of in this context that the criminal cases which are the subject-matter of Exhs.D.A. To D.C. Had been registered in the years 1992 and 1993 and there is nothing on the record of the present case to indicate that the recovery witnesses of the present case were posted at the relevant police station or even in District Sialkot in the years 1992 and 1993.
7. The submission made by the learned counsel for the appellants regarding failure to associate any witness from the public with the recovery effected from the appellants overlooks the fact that section 25 of the Control of Narcotic Substances Act, 1997 excludes the application of the provisions of section 103, Cr.P.C. To cases under. The Control of Narcotic Substances Act, 1997. .As nothing adverse to the recovery witnesses produced by the prosecution in this case has been brought on the record by the defence, therefore, we have felt no hesitation in placing implicit reliance upon the statements made by such recovery witnesses before the learned trial Court.
8. Both the appellants are closely related to each other inasmuch as Muhammad Naeem appellant is the paternal uncle of Shahbaz Ahmad appellant. Both of them were travelling in the same motorcar from which the contraband narcotics were recovered by the police party and both of them had also been arrested together by the police at the spot. In these circumstances community of interest between them has been found by us to be a foregone conclusion. Being in joint use and control of the relevant motorcar at the relevant time the appellants cannot absolve themselves of a joint responsibility for possession of narcotics recovered from that motorcar. In this respect the case in hand has some similarities with the case of Nadir Khan and another v. The State 1988 SCM R 1899.
9. For what has been discussed above we have arrived at a confident conclusion that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt.
The sentence passed by the learned trial Court against the appellants have been found by us to be apt and appropriate in the circumstances of this case. This appeal is, therefore, dismissed and the convictions and sentences of the appellants recorded by the learned trial Court are upheld and maintained.