' Aslam Javed Minhas, J.--By this judgment we propose to decide Crl. Appeal No. 184 of 2006 titled Ghulam Abbas v. State, Crl. Appeal No. 188 of 2006 titled Ameer Bakhsh v. State and Crl. Appeal No. 96 of 2012 titled Riaz Hussain v. State as all are outcome of one and 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. 206/2005, 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 imprisonment for life each along with a fine of Rs. 100,000/- each, in default of which to further undergo six months SI. The sentence of this case was ordered to run concurrently along with the sentence awarded to the appellants in case FIR No. 207/2005, dated 08.06.2005, under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Kot Addu which was also recorded on the same day. 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 3.15 A.M.
(night). Mahboob Khan Inspector on receiving spy information that accused persons indulged in business of narcotics and at that moment they were trafficking narcotics in a Hiace wagon No. C- 2022 Kohat from Layyah towards Qureshi, constituted a raiding party. When they reached northern railway crossing Kot Addu. After some time wagon appeared which was driven by Ghulam Abbas and the other two persons, whose names afterwards disclosed as Ameer Bakhsh and Riaz Hussain were sitting in the seat behind the driver seat, which was intercepted by the police party. The accused made an attempt to run away, however, they were apprehended by the police. On search of wagon one plastic Gatto containing 39-Kilograms Charas was recovered in the shape of 31 packets; 10 grams charas from each packet was separated for chemical analysis; the recovered eharas was taken into possession. Another Gatto was also found in the rear seat of the wagon containing 10 Kg. Opium which was also taken into possession and a separate case (FIR No. 207/2005) was registered. A pistol .30 bore was also recovered from the Hiace wagon which was also taken into possession.
4. After registration of the case, the investigation was conducted and after having found all the three accused 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, C/731 was examined as PW1. He delivered the sealed parcels of charas 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 it 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. The trial culminated into conviction and sentence of the appellants as mentioned above. Hence these appeals by all the three appellants. Although none has entered appearance on behalf of appellant, Riaz Hussain but the learned counsel appearing on behalf of Ghulam Abbas, appellant opted to argue on his behalf.
7. Learned counsel for the appellants contended that the case has been registered with mala fide intention; that although from each packet 10 gram charas was separated but only a single parcel of sample weighing 310 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.LJ 680.
8. 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 any leniency.
9. We have heard the learned counsel for the parties and perused the record with their able assistance.
10. From the perusal of the complaint Ex.PA it stands established that 31 packets were recovered which weighed 39 kilograms of charas. All the three appellants were apprehended at the spot.
There is no material contradiction appears in the statements of the PWs 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 of a private witness is not necessary. Further, in the early hours of the morning it is not possible that any private person would be available and joined in the 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 the wagon and the substance recovered was fully established from the record, therefore, the accused were rightly found guilty of the offence. Not a single suggestion was put to the prosecution witnesses that the accused were not arrested from wagon and the substance was not recovered from the wagon in which they were boarded, therefore, they were 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 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 doubt then the burden is shifted to the accused to prove his innocence. Such a huge quantity of narcotic cannot be planted. The alleged vehicle from which narcotic was recovered was taken into possession and thereafter the same was taken on sapurdari by one Shahid Hussain. The case law referred by the learned counsel for the appellants is quite distinguishable from the facts of the present case.
11. In view of what has been discussed above, all the three appeals are dismissed having no force.
The sentence of the appellants was suspended by this Court, therefore, they be taken into custody and sent to jail to serve out the remaining portion of their sentence. The bail bonds are discharged.