1. ' AMIR HANI MUSLIM, J.---Through this appeal, the appellant has impugned the Judgment passed by the Special Judge. C.N.S. Court Sukkur in Crime No,4 of 2002 of Police Station A.N.F. Sukkur, wherein the appellant has been convicted under section 9(c) of the C.N.S. Act and sentenced to suffer R.k for life and fine of Rs,2,00,000 and in case of default in payment of fine appellant was further liable to suffer R.I. For six months.
2. ' The prosecution story according to the F.I..R. Was that on 11-9-2002 Inspector Zareen Khan of A.N.F.
3. Sukkur with his staff was on patrolling duty when he received spy information that co-accused Gul Hassan had brought huge quantity of heroin to his house for the'sale in Sukkur. On receipt of such information, the house of the co-accused Gul Hassan was raided by the A.N.F. Police where they found the appellant, wife of the co-accused Gul Hassan was present. The A.N.F. Police entered the house and during search recovered two kilograms of heroin power from one of the rooms, which was lying inside table of a double bed in a whole coloured shopping bag. On recovery of heroin the appellant was arrested and after completing the formalities, the A.N.F. Police registered the F.I.R.
4. No,4 of 2002 against the appellant and her husband Gul Hassan.
5. ' On 6-1-2002 charge was framed against both the accused who pleaded not guilty. The prosecution examined Inspector Zareen Khan as P.W.1 Exh.10 who produced the entry of station Diary and Mushirnana of recovery of heroin, Mashirnama of arrest of appellant. F.I.R. And report of Chemical Examiner, P.C. Abdul Rasheed who was Mushir of Recovery and arrest was examined as P.W.2 whereafter the prosecution closed its side.
6. ' Appellant and her husband co-accused Gul Hassan were examined under section 342, Cr.P.C. And they also examined the Defence Witnesses. After hearing the final arguments, the appellant was convicted vide the impugned judgment whereas her husband co-accused Gul Hassan was acquitted by the trial Court.
7. ' It is contended by learned counsel for the appellant that the prosecution has not examined any private and or independent witness of the locality though they had before hand information that the heroin powder was lying in the house of the co-accused Gul Hassan.
8. ' His next contention was that the heroin powder was not recovered from the possession of the appellant as the room of the house from where the recovery of Heroin was effected was not owned by her and was in joint occupation .Of the appellant, her husband co-accused Gul Hassan, Favaz maternal uncle of appellant and his wife Bakhtawar.
9. ' His next contention was that the recovery of the heroin from the head side table of the bed of the room of the house in which appellant was also residing would not lead to the assumption that the recovery effected from there would expose the appellant to conviction as the house was jointly occupied by other relations of the appellant.
10. ' His next contention was that co-accused Gul Hassan the husband of the appellant has been acquitted on the same evidence by the trial Court holding in the impugned judgment that since co-accused Gul Hassan was not present in his house therefore he was entitled to acquittal. The learned counsel for the appellant has further argued that it has come on record that there was enmity between the complainant and the trial Court did not take into consideration this aspect while passing the impugned judgment.
11. ' It has been contended by the learned counsel for the appellant that after appellant was arrested in the present case, a Constitution Petition No,850 of 2002 was filed by Bakhtawar in this Court in which this Court had ordered F.I.A. For inquiry into the allegations of false implication of the appellant and her husband in the case. According to the learned counsel for the appellant, the inquiry officer has held that the appellant and her husband were falsely implicated in Crime No,4 of 2002 and such report was also produced in the trial Court.
12. ' As against this the learned S.P.P. Has contended that the recovery was effected from the exclusive possession of the appellant. He has further submitted that independent Mushir in terms of section 103, Cr.P.C. Are not required to be examined in the face of the provision of section 25 of the C.N.S. Act. He has further submitted that both official/excise Police witnesses who were Mushirs of recovery have supported the case of the prosecution.
13. We have heard the learned counsel for the parties and have perused the record. The recovery has been effected from one of the rooms of the house of the co-accused Gul Hassan in his absence, when the appellant was present. The recovery was effected in presence of the Mushirs namely P.C.
14. Imtiaz Ali and P.C. Abdul Rasheed. The prosecution however has not examined P.C. Imtiaz Ali. The heroin recovered around 1300 hours. The deposition of P.W.1 Zareen Khan Exh.10 suggests that at the time when the house of the co-accused Gul Hassan was raided no private/independent person was present in the street therefore the A.N.F. Police entered into the house of the appellant along with aforesaid two mushirs. The evidence of Inspector Zareen Khan further establishes that the recovery has not been effected on the pointation of the appellant from the bedroom of the house but it was effected during the search of the house from the head side of the Cabin of double bed.
15. The heroin powder was lying in a white coloured shopping bag containing 2 Kilograms and it was recovered in presence of Mushirs PC Imtiaz Ali and PC Abdul Rasheed and it was taken into possession by the A.N.F. Police. In his deposition, the Inspector Zareen Khan has further stated that all the shops around the house were closed. He has also admitted that on both sides of the house of co-accused Gul Hassan there were number of houses. He however, has stated in his deposition that he did not call any person from public when he conducted the raid on the house of the appellant. In the deposition of P.W.2 Abdul Rasheed, who was one of the Mushirs of the recovery and arrest of the Appellant has repeated the same story. He however, in his deposition has stated that there was no house in between the house of the appellant and the Katcha area. The appellant and co-accused Gul Hassan were examined by the trial Court under section 342, Cr.PC.
16. ' The appellant has examined herself on oath as P.W.1 and in her deposition she has deposed that Zareen Khan the Investigating Officer was pressurizing her to marry Rashid Khan Pathan who was his close friend and on account of her refusal she was implicated in the present case. She had further deposed that Zareen Khan has forcibly obtained her signatures on a stamp paper and Nikahnama. The co-accused Gul Hassan has also examined himself on oath and has produced the certified true copy of the Constitution Petition No,850/2002 filed in this Court by Mst. Bakhtawar, her sister, wherein it was prayed that inquiry be ordered to be conducted through F.I.A. Against the A.N.F. Police for lodging false F.I.R. Against the appellant and co-accused Gul Hassan. He has also produced the final inquiry report of the F.I.A. As Exh.15-B which was conducted pursuant to the orders of this Court passed in Constitution Petition No,850/2002.
17. ' The appellant also examined Nek Muhammad, Hafeezuddin and Bakhtawar as Defence Witnesses and in their depositions they had stated that the appellant was arrested along with the sister of co- accused Gul Hassan and Fayaz the maternal uncle of the co-accused Gul Hassan from the house of the co-accused Gul Hassan. They have also deposed that the house of the co-accused Gul Hassan is located in thickly populated area of the town. The defence witnesses have deposed that the house was in joint occupation of Fayaz, maternal uncle of the co-accused Gul Hassan, his sister Bakhtawar, the appellant and co-accused Gul Hassan.
18. In the impugned judgment, trial Court has misread the evidence by overlooking the fact that the recovery of heroin has not been effected on the pointation of the appellant from the room of the house owned by co-accused Gul Hassan. It is also an admitted position that besides the appellant there were other occupants living in the house which included the sister and maternal uncle of co- accused Gul Hassan. Nowhere it has come in evidence nor any suggestion has been given that room from where the recovery was effected was the bedroom of the appellant. Even the prosecution has not produced any map of the house raided by them to show how many rooms the house had and who was occupying such room and such part of the deposition of the aforesaid defence witnesses have not been challenged by the prosecution.
19. ' Additionally, the learned trial Judge has overlooked the elementary principle of criminal justice that unless recovery is effected from possession of the appellant and is proved beyond reasonable doubt she cannot be convicted. In the present case when there were more than three persons who are in joint occupation of the house any recovery effected from one of such rooms it was wrong on the part of the trial Court to convict the appellant under section 9(c) of the C.N.S. Act on the ground that she was present at the time of recovery when the material brought before the Court clearly establishes that the house was jointly occupied. Even the prosecution was failed to prove guilty knowledge of the appellant in regard to the presence of the heroin. The material available on record shows that there was matrimonial dispute between the friend of the Investigating Officer and the appellant. The locality in which the house (raided) was located was thickly-populated area and no private independent Mushir of the area was made witness of the recovery and or arrest. The explanation of the Investigating Officer that there was no person available in the street was not plausible.
20. ' We are in knowledge that the provisions of section 103, Cr.P.C. Are inapplicable to the C.N.S. Act but still section 25 of the C.N.S. Act does not debar the A.N.F. Police from effecting the recovery in presence of the independent private witnesses when they have prior knowledge of such raid in a house in the day time which is populated. The impugned judgment does not furnish any reason holding that the recovery of Heroin was effected from the possession of appellant when admittedly the house does not belong to her nor there was any independent evidence brought on record to establish that the appellant was in knowledge of heroin in the room. Mere presence of the appellant in the house at the time of raid, which is otherwise natural as the appellant being female and is expected to be in the house of her husband would not be liable to conviction; more so when the prosecution story does not suggest that the appellant was involved in the business of sale of Heroin.
21. ' Even the charge framed against the appellant clearly shows that the Heroin was recovered from the house owned and belonged to co-accused Gul Hassan and nowhere in the charge it was stated that the recovery was made from the appellant. The appellant was examined under section 342 Cr. P.0 by the learned trial Court in which she was not posed any question that heroin was recovered from the bedroom of the appellant.
22. ' We on careful examination of the record are clear in our mind that the impugned judgment was passed on assumptions of facts and the appellant at no point of time was in exclusive possession of the bedroom from where the heroin was recovered nor the prosecution has proved that the appellant was in knowledge that the heroin powder is lying in the said room. It is most interesting that the co-accused Gul Hassan was acquitted by the trial Court on the ground that he was not present at the time of raid and State has not preferred any appeal against it.
23. ' For the aforesaid reasons this appeal is allowed the appellant shall be released forthwith if not required in any other case.