JUDGMENT SH. AHMAD FAROOQ, J.---Three female accused, namely, Munawar Bibi, Amna Bibi and Mumtaz Mai were tried by the learned Additional Sessions Judge, Sheikhupura, in a case arising out of F.I.R. No.276 of 2004, dated 9-4-2004, registered in Police Station, Sadar, Sheikhupura, under section 9(c) of the Control of Narcotic Substances Act, 1997. The learned trial Court, vide its judgment dated 21-4-2005, holding all the three accused guilty of offence under section 9(c) of the C. N.S.A., 1997 convicted and sentenced them to imprisonment for life along with a fine of Rs.100,000 each, and in case of default to undergo further simple imprisonment for six months.
2. The convicts/Amna Bibi and Mumtaz Mai have challenged their Conviction and sentence by filing Criminal Appeal No.215-J of 2005 while the third convict/Munawar Bibi has filed a separate Criminal Appeal bearing No.779 of 2005. As in both the appeals, the impugned judgment is the same, we propose to decide these appeals through this single judgment.
3. Briefly, the allegation against the convicts/appellants as contained in the F.I.R. (Exh.P.B/1), recorded on the statement of the complainant/Ghulam Abbas, A.S.-I., was that, on spy information, when the police party raided the spot i.e. Inter Change Gujranwala Road, the appellants were found in possession of nine bags, each containing 20 K.G. Of 'poast'.
4. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences. Formal charge was framed against the accused, to which they pleaded not guilty and claimed to be tried, whereupon the prosecution was invited to adduce evidence support of its case. In order to prove its case, the prosecution produced six(6) witnesses, in addition to tendering in evidence report of the Chemical Examiner (Exh. P. E).
5. P.W.1/Ghulam Abbas, A.S.-I. Is the complainant of the instant case. He reiterated the story as narrated in the F.I.R. P.W.2/Muhammad Riaz, Constable, deposed that on 9-4-2004, he along with Asghar Ali, Constable, Muhammad Nawaz, Constable and Ghulam Abbas, A.S.-I. Was present at Bus Stop, Kot Ranjeet, when, the complainant received the spy information about the narcotics being possessed by the appellants/convicts. This P.W. Brought the scale from Kot Ranjeet and weighed the narcotic substance, total weighing 180 k. g. Out of which half kilogram was separated from each bag as sample for chemical analysis. P.W.3/Asghar Ali, Constable, deposed that on 14-4- 2004, the Moharar handed him over nine sealed parcels, containing samples of recovered narcotics, he got issued docket and again deposited the same with the Moharar. On 23-4-2004, he received the said parcels from the Moharar and deposited the same with the office of the Chemical Examiner, Lahore intact. P.W.4/Ishrat Nawaz, Head Constable, was posted as Moharar at Police Station, Sadar, Sheikhupura, at the time of the occurrence. His deposition was in line with the statement of P. W. 3/ Asghar Ali. P.W.5/Khalid Aslam Inspector/ Investigating Officer recorded the statements of Ishrat Nawaz, Moharar (P.W.4) and Asghar Ali, Constable (P.W.3) and later on the investigation was entrusted to Muhammad Iqbal, Inspector/ S.H.O. Riaz Ahmad/P.W.6 initially investigated the case. He visited the place of occurrence, prepared site plan (Exh.P.C.), recorded the statements of the P.Ws. Under section 161, Cr.P.C. And took into custody the accused and the case property. He sent the accused to judicial lock up on 10-4-2004, whereafter he was transferred from the said police station.
6. The convict/appellant, namely, Munawar Bibi, produced Muhammad Iqbal, Inspector/S.H.O.
Police Station, Saddar Sheikhupura in her defence as D.W.1. He deposed that during his investigation eight persons appeared before him to prove innocence of the accused/Munawar Bibi.
As per his findings, this convict/appellant had no relation with the other two co-accused.
7. Statements of the accused/ appellants were recorded under section 342,Cr.P.C. In which they denied the correctness of prosecution evidence. The accused/appellants, namely, Amna Bibi and Mumtaz Bibi in reply to the question as why this case against you and why the P.Ws. Have deposed against you, both replied as under:- "The complainant Ghulam Abbas has let of the real culprits in order to keep his offence in secrecy and falsely booked us in this case. P.Ws. Have falsely deposed against me."
However, the third accused, namely, Munawar Bibi, in response to the above said question replied as under:-- "I have been falsely implicated in this case. In fact on 8-4-2004, I went to see my sister at Jhuggi Syedan near Gholra Sharif, Rawalpindi, and on my return I deboarded from the bus at Sheikhupura Motorway Interchange in order to go village Jatri, District Sheikhupura where my daughter Shahida Parveen resides. On the Interchange, two other ladies namely, Mumtaz Bibi and Aamna Bibi, co- accused also alighted from the bus, who had also kept their luggage after deboarding the same from the bus. I did not personally know them. Since we travelled together and alighted from the same place and were talking to each other when the police came and caught hold of us and started searching the luggage of the co-accused. I was absolutely unaware about the luggage and nor I was ever involved in any case. I am innocent. During the investigation,Muhammad Iqbal, Inspector/ S.H.O. Police Station Sadar, Sheikhupura has declared that I had no relation with the co- accused and the recovered material. I am innocent. I have only been involved in this case just for standing near the co-accused at bus stop like other passengers. Nothing was recovered from me.
The prosecution has failed to prove the case against me. All the P.Ws. Are police officials, they have falsely deposed against me being subordinate of the complainant."
The appellants did not opt to make their on statements on oath in disproof of the charges or allegations made against them, as envisaged under section 340(2), Cr.P.C.
8. Upon conclusion of the trial, the learned trial Court found the appellants guilty, of committing the offence falling under section 9(c) of the Control of Narcotic Substances Act, 1997 and thus convicted and sentenced them, as mentioned herein above. Aggrieved by the impugned judgment, dated 21-4-2005, the appellants have preferred the above said appeals before this Court.
9. Syed Shakir Ali Rizvi, Advocate while appearing on behalf of the appellants/Amna Bibi and Mumtaz Mai argued that the alleged narcotic substance was not recovered from the possession of the appellants and the same was lying on roadside near the Bus Stop where the appellants were waiting for some public transport. The learned counsel next contended that the present appellants were substituted with the real culprits, who were let of by the police. The prosecution story is highly improbable qua bringing 180 k.g. of 'poast' at the place of occurrence by three female accused. The learned counsel also contended that if the raiding party had prior information of presence of narcotics in possession of the accused/appellants, it was obligatory to associate lady constables to conduct the raid. Added that joint recovery was not admissible in law. The learned counsel also contended that the samples of the alleged recovered narcotic substance were sent to the Chemical Examiner after nine (9) days, and possibility of substitution of the same could not be ruled out, and in such circumstances, it was a clear cut case of acquittal giving the accused benefit of doubt. Relied upon the case of Sarwar Jan v. The State (2004 PCr.LJ 1224). Added that all the prosecution witnesses are police officials and their testimony was not corroborated by any independent witness from public to prove the commission of the offence. Finally, contended that the complainant was a highly interested witness as he having arrested the appellants would like to see that the accused/appellants are convicted by the Court.
10. Mr. M. Tanvir Chaudhry, Advocate for Munawar Bibi argued that the said appellant has no relation with the other co-accused and she was just standing at the Bus Stop near them at the time of the raid. Further argued that nothing has been recovered from the possession of the appellant and she has been falsely involved in the present case due to suspicion. The learned counsel next contended that not only during the investigation, a number of persons appeared before the Investigating Officer to prove the innocence of the present convict/appellant in the present case. Further contended that the defence witness D.W.1. Has also supported the case the, appellant and his evidence was sufficient to give a finding of acquittal in favour of the appellant but the learned, trial Court illegally held the appellant guilty of the offence and awarded her the sentence as mentioned above. The learned counsel lastly contended that it was a case of no evidence against the appellant and the appeal in hand merits acceptance.
11. The learned Deputy Prosecutor-General, Punjab contended that it was not a joint recovery but a joint possession of heavy quantity of contraband, which was taken into possession by the raiding party on receiving Spy information and there was no chance of substitution of the accused with the real culprits. He has further contended that the provision of section 103, Cr.P.C. Is not applicable in the narcotic cases as its application is excluded by section 25 of the Narcotic Substances Act, 1997.
12. We have heard the learned counsel for the appellants as well as the learned D.P.-G. We have also gone through the entire record of the case.
12A. Neither the presence of the appellants at the place of occurrence nor the recovery of a huge quantity of narcotic substance packed in nine(9) bags weighing 20 k.g. 'poast' each is denied. Only ownership of the narcotic substance is denied by all the three convicts/appellants. The alleged narcotic was recovered on receiving spy information, that three female were in possession of huge quantity of narcotic substance. As the narcotic substance was found lying on a roadside near the Bus Stop and the appellants were waiting for transporting the same, and as such, it could not be considered as a joint recovery. Obviously, it was a case of joint possession and joint ownership. As the spy information indicated the female accused and there being no or motive on the part of the police to falsely implicate the present appellants in the instant case, we do not find any weight in the argument of the learned counsel for the appellants that the police has substituted the convicts/ appellants with the real culprits, who have been let of by the police. Even otherwise, appellant/Munawar Bibi in her statement under section 342, Cr.P.C. Has admitted that she travelled with the other accused in the same bus and after alighting from the same bus was standing along with them on the Bus Stop. She further admitted that the co-accused were having luggage with them which, at the time of raid, was searched by the police. It is not the case of the prosecution that the convicts/appellants had brought nine(9) bags of narcotic substance, each weighing 20 k.g., at the place of recovery by physically carrying them.
13. No doubt, all the prosecution evidence consists upon police witnesses but their testimony is considered as good as public witnesses and non-application of section 103, Cr.P.C. In the present case, has got no implication as section 25 of the. Narcotic Substances Act, 1997 excluded its application. All the prosecution witnesses remained consistent in their depositions and the defence was unable to shake their testimony during the cross-examination. There is no allegation of personal grudge or animosity against the prosecution witnesses to falsely implicate the appellants in the present case. Even during the cross-examination, no such question was put to any of the prosecution witnesses to suggest false implication bf the appellants on account of mala fide or any kind of enmity between the appellants and the prosecution witnesses.
14. Ishrat Nawaz, Head Constable in his examination-in-chief deposed about the delivery of samples of recovered narcotic substance to the office of the Chemical Examiner, Lahore. This P.W.
Was not cross-examined despite an opportunity being provided. As such, the question of delay of 9 days in sending the samples of narcotic substance or substitution of the recovered material with some other material containing intoxicant became irrelevant. A huge quantity of 180 k.g. Of 'poast' has been recovered from the appellants and the plea that the same has been planted on the appellants by the police does not seem to be plausible. The report of the Chemical Examiner is in the positive.
15. The appellant/Munawar Bibi claims to be not associated with the co-accused. She claimed that both the co-accused, namely, Amna Bibi and Mumtaz Mai were strangers for her and her only affiliation with them was that of a co-passenger and after alighting from the bus she was standing at 'the Bus Stop waiting any conveyance for proceeding to. Village Jatri, District Sheikhupura, where her daughter, namely, Zahida, resided. Though during the investigation, eight(8) persons appeared before the Investigating Officer in support of the defence version of the above said appellant, and on the basis of these statements the Investigating Officer recorded that the appellant had no concern with the other co-accused, but none of the said witnesses appeared before the Court during the trial. Admittedly, none of the said eight persons was present at the place of occurrence and their statements were irrelevant for the purposes of determination of guilt or innocence of the appellant. Even otherwise, it is not pre-requisite for the commission of a cognizable offence to establish a relation between the accused persons. It is the common intention and object which establishes a relation between accused. At the time of raid, the appellant/ Munawar Mai was found present at the place of occurrence in the company of the co-accused and she has been unable to prove that she was not associated with the co-accused. On the other hand, the prosecution has proved that she was associated with the other co-accused, she was found in joint possession of the narcotic substance and was, thus, guilty of commission of the offence falling under section 9(c) of the Control of Narcotic Substances Act, 1997.
16. The nutshell of the above discussion is that the appellants have failed to make out a case of their acquittal in the present case. We thus, hold that the learned trial Court has rightly convicted and sentenced the appellants as aforementioned. The impugned judgment of the learned trial Court does not call for interference by this Court, which is upheld and the conviction and sentence of the, present appellants is maintained. Resultantly, both the appeals are dismissed.