ASLAM JAVED MINHAS, J: By this judgment we propose to decide Crl.Appeal No.182 of 2006 titled Ghulam Abbas v. State, Crl.Appeal No.187 of 2006 titled Ameer Bakhsh v. State and Crl.Appeal No.95 of 2012 titled Riaz Hussain v. The State as all are outcome of the same judgment.
2. Challenge in these appeals is to the judgment dated 05.04.2006 passed by the learned Addl.
Sessions Judge, Kot Addu in case FIR No. 207/2005, dated 08.06.2005, under Section 9-C of the Control of Narcotic Substances Act, 1997, P.S. Kot Addu, whereby appellants namely, Ghulam Abbas, Ameer Bakhsh and Riaz Hussain were convicted and sentenced under Section 9-C of the Control of Narcotic Substances Act, 1997 to fourteen years RI each, along with a fine of Rs.50,000/- each, in default of which to further undergo six months SI. Since the appellants were also convicted by the learned trial court in another case FIR No.206/05, dated 08.06.2005 registered at the same police station under Section 9-C CNSA, 1997, therefore, it was ordered that both the sentence awarded to the appellants shall run concurrently. Benefit of Section 382-B Cr.P.C. Was also, however, extended to them in both the cases.
3. The relevant facts for the disposal of these appeals are that on 08.06.2005 at about 4.25 a.m.
(night) Mahboob Ahmad/SHO along with other police officials was present at Northern railway crossing Kot Addu, in connection with investigation of the other case registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 vide FIR No.206/2005 of the said police station against the above appellants when a wagon Hiace No.C-2022 was searched and a Gatto was found lying under the rear seat of the wagon, which contained opium weighing 10 Kg. In the shape of nine packets. Opium weighing 10 grams from each packet was separated and sealed into parcel for chemical analysis and the opium was taken into possession in presence of PW2 Noor Hussain, ASI and PW1 Riaz Hussain, 731/HC who attested the recovery memo.
4. After registration of the case, the investigation was conducted and after having found them guilty challan against them was submitted in the court. The trial court framed the charge on 27.07.2005 which was denied by the accused and they claimed trial. During the trial the prosecution examined as many as four witnesses to prove the guilt of the accused.
5. Riaz Hussain, HC/731 was examined as PW1. He delivered the sealed parcels of opium to the office of Chemical Examiner after receiving the same from Mukhtar Ahmad Moharrir. Noor Hussain, ASI was examined as PW2. He supported the prosecution story as mentioned in the FIR. Mahboob Khan Inspector/SHO was examined as PW3. He investigated the case and found all the three accused guilty. He also attested the recovery memo Ex.PA, site plan Ex.PC. Mukhtar Ahmad Moharrir was examined as PW4. He deposed that on 08.06.2005 the I.O. Handed over to him two sealed parcels, one sample and the other containing the case property which he kept in Malkhana and thereafter handed over the sealed parcels to Riaz Hussain Constable for its onwards transmission to the office of Chemical Examiner. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Ex.PE.
6. In his statement recorded under Section 342 Cr.P.C. In reply to question as to why this case against him, accused Ghulam Abbas stated as under:- "In fact Noor Hussain ASI of P.S Mahmood Kot Addu had a personal grudge with me previously. He falsely involved me in this baseless case. He also suppressed true facts of the case. Nothing was recovered from my possession. I have no concern with the Hiace or the opium. Police falsely implicated me in this case just to show their efficiency."
Accused Ameer Bakhsh and Riaz Hussain to the same question also replied in the same lines as stated by Ghulam Abbas accused. In their defence all the three appellants also produced Haji Abdul Karim as DW1 who stated that on 06.07.2005 a Panchayat was convened in the house of Ghulam Abbas accused, in which Haji Farooq, Iqbal Pitafi Advocate, Haji Muhammad Hussain and many other persons participated. He further stated that the Panchayat was convened for settlement of the dispute of dacoity committed in the house of Ghulam Abbas accused, for which a criminal case was registered against 7/8 persons of the Pitafi tribe. He further deposed that on the next morning they came to know that Ghulam Abbas accused along with his two gests was arrested by the police. He further deposed that wagon was also taken into possession by the police. He further stated that at the time of alleged occurrence mentioned in the FIR Ghulam Abbas accused was at his house till 10.30 p.m.
7. The trial culminated into conviction and sentence of the appellants as mentioned above. Hence these appeals by all the three appellants. Although none has appeared on behalf of appellant, Riaz Hussain but the learned counsel appearing on behalf of Ghulam Abbas, appellant opted to argue on his behalf.
8. Learned counsel for the appellants contended that the case has been registered with mala fide intention; that although from each packet 10 gram opium was separated but only a single parcel of sample weighing 90 gram was prepared, therefore, the recovery would be presumed only from one packet; that the sample was delivered to the office of Chemical Examiner after the delay of three days of the occurrence; that the alleged wagon from which the narcotic was recovered was not taken into custody; and that at the time of occurrence all the three appellants were on different places. In support of their contentions, the learned counsels placed reliance upon PLD 2003 SC 606, PLD 2004 Karachi 644, 2013 P.Cr.LJ 1254, 2015 SCMR 308, PLD 2012 SC 380 and 2003 P.Cr.LP 680.
9. On the other hand the learned Deputy Prosecutor General opposed the appeals and supported the impugned judgment. He further contended that huge quantity of narcotic was recovered from the appellants, therefore, they are not entitled for leniency.
10. We have heard the learned counsel for the parties and perused the record with their able assistance.
11. From the perusal of the complaint Ex.PA it stands established that 9 packets were recovered which weighed 10 kilograms of opium. All the three appellants were apprehended at the spot. There is no material contradiction appear in the statements of the PWs even after a lengthy cross- examination. There is nothing on the record whether any private person was available at the spot but not joined the investigation, therefore, the contention of the learned counsel for the appellants that there is violation of section 103 Cr.PC has no force since in narcotic cases joining a private witness is not necessary. Normally a private person did not join the investigation to become a witness. Further in such an early morning it is not possible that any private person would be available to be joined in the recovery proceedings, therefore, it is immaterial that no witness from the public was associated. The police officials are as good witnesses as from the other people. The prosecution version is further corroborated from the positive report of Chemical Examiner Ex.PE. It is well established from the record that the substance was recovered from the wagon in which the accused were boarding from Layyah and they were arrested from that wagon, therefore, the accused were rightly held guilty of the offence. Not a single suggestion was put to the prosecution witnesses that the accused were not arrested from wagon in which they were boarded and the substance was not recovered from said wagon and they were not fully aware of presence of the substance in the vehicle. Thus the recovery of substance is fully established. It is very important to mention here that the possession of substance can be joint from two or more accused persons and there is no condition or qualification that the substance should be recovered from exclusive possession of a person. Since all the three appellants were boarded on the same vehicle and no other person boarded on that vehicle, the accused or driver failed to produce any record that the vehicle was a public transport. According to Section 29 of the Control of Narcotic Substances Act, 1997, once prosecution established recovery beyond a reasonable doubt then the burden is shifted to the accused. Such a huge quantity of narcotic cannot be planted. The alleged vehicle from which narcotic was recovered was taken into possession and the same was taken on sapurdari by one Shahid Hussain. The case law referred by the learned counsel for the appellants is distinguishable from the facts of the present case.
12. In view of what has been discussed above, all the three appeals are dismissed having no force.
Since the sentence of the appellants was suspended by this Court, they be taken into custody and sent to jail to serve out the remaining portion of their sentence. The bail bonds are discharged.