IBADAT YAR KHAN, J.--- Jail Criminal Appeal No.179/1 of 1990 (Mst. Hussan Bibi v. The State) and Jail Criminal Appeal No.180/I of 1990 (Awal Khan alias Khan Muhammad v. The State) have been heard by us together and would now be disposed of by this single judgment.
2. The occurrence took place on 10-10-1988 at about 10-30 a.m. Near Margalla Check Post, Taxila, where Ghulam Rasool, Excise Inspector, alongwith Muhammad Jamil, Head Constable Excise, Sarfraz Khan, Aurangzeb Khan, Tora Baz Khan, Javed lqbal, Constables and Mst. Rashida Begum, Lady Constable of Excise Department and Muhammad Hanif, A.S.I., Ghulam Abbas, A.S.I. And some staff of the regular police department happened to be present for checking the narcotics. Ghulam Rasool, Excise Inspector received a secret information that `one person alongwith his were and children is coming from Peshawar Aide in Wagon No.PRK/1445 and are having huge quantity of heroin in his possession'. This information put the party on alert. A raiding party was formed to await the arrival of the narcotic carrier. After a while at about 10-30 a.m. The wagon was seen coming from Peshawar side. The police party stopped the wagon and brought down appellant Mst.
Hussan Bibi, appellant in Jail Criminal Appeal No.179/1 of 1990 and her husband Awal Khan, appellant in Jail Criminal Appeal No.180/I of 191)0 alongwith their children. It is alleged that appellant Hussan Bibi was holding a basket in her hand, which contained used clothes of the children. The basket was checked and alongwith the clothes of the children Rexene bag of black colour was recovered. On further checking of the Rexene bag heroin wrapped in polythene envelopes was found. It was weighed and found to be 2,220 grams. Three grams of heroin from each packet was separated for the purposes of chemical examination and scaled separately from the bulk. The heroin was taken into possession vide recovery memo. Exh. P.C. Ghulam Rasool, Excise Inspector, then wrote out a complaint (Exh. P.A.) and handed it over to Muhammad Hanif, A.S.I., for registration of the case and further investigation. On basis of this complaint F.I.R. No.251 was registered in Police Station Taxila. The Jail Criminal Appeal No.179/1 of 1990 originates from this F.I.R.
3. The same performance was repeated by Ghulam Rasool, Excise Inspector, in the case of Awal Khan, appellant with a difference that in his case a further quantity of heroin weighing 1,050 grams was recovered as a result of his body search from the `Dub' of his Shalwar. An F.I.R. No.252 was registered in Police Station Taxila. Jail Criminal Appeal No.180/I of 1990 originates from this F.I.R.
4. The recovery,, of heroin in both the cases has been proved by clean statements of P.Ws.
Muhammad Ismail, F.C. No.2946, Ghulam Rasool, Excise Inspector and Muhammad Hanif, A.S.I.
5. In addition to the above three P.Ws. One more witness Mst. Rashida Begum, a Lady Excise Constable, who was associated to handle appellant Mst. Hussan Bibi, has also been examined. She has also supported the recovery.
6. For some reasons not easily discernible the case was split into two separate cases by the prosecuting agency although the witnesses, the time and the place of occurrence were same. Be that as it may, the fact remains that the family consisting of husband and were and their children including a suckling baby, were detained by the police, searched and recoveries were made. In our opinion there is no doubt the heroin was in fact recovered by the narcotic and police staff and there is overwhelming evidence to support the recovery.
7. Appellant Mst. Hussan Bibi, while answering question No.5 put to her by the learned trial Judge under section 342, Cr.P.C. Has made the following statement: "In fact the basket P.2 was in possession of Awal Khan at the time of search. However, the suits P- 2/1-5 belong to my children."
Again she was put a question why this case was brought against her, she offered a detailed explanation as under: "I am absolutely innocent. On the said day while I was proceeding alongwith my husband and children towards Lahore to offer `Fateha' to one of my relatives who has since died, the police officials stopped the wagon at Margala Check Post. They entered into the wagon and started search. I was having my suckling baby in my lap and was having no basket etc. However, the basket P.2 was in the possession of my husband Awal Khan in which 3-4 pairs of clothes were lying.
I was not conscious about any contrabands in the said basket P.2. The police officials after searching the basket in the possession of my husband Awal debarred him upon which I inquired and objected. Resultantly the police did not listen to me and also did not consider Awal Khan's admission that since the basket is in his possession, therefore, I shall be allowed to go. The passengers from the wagon made entreaties to the police about my 'a~ innocence to the police officials but they did not pay head to it in spite of my requests regarding my innocence."
Appellant Mst. Hussan Bibi also examined D.W.1 Badam Gul, D.W.2 Sarwar in her defence. D.W.1 Badam Gul is the President of the lslahi Committee of the Mohallah and was also a passenger in the wagon occupying a rear seat. He has also supported the version of the lady accused. He has stated in Court that `I know about this case. On the day of occurrence I alongwith one Sarwar and the accused with her husband were occupying the rear seat. The accused was having little kid in her laps and two other children were also with her. Awal Khan accused was having a basket in his hand, which was containing clothes. I do not know anything what was further in it'.
8. The line of defence taken by the lady accused in her statement was pursued in the earliest opportunity in the cross-examination of A.S.I. Muhammad Hanif. Some replies to the questions in cross-examination may be reproduced below to show that the defence taken by the lady appellant is not an afterthought but was taken at the earliest opportunity. Extracts from statement of A.S.I. Muhammad Hanif: "I came to know that they are husband and were. It is incorrect to suggest that Awal Khan told to me that the whole intoxication was his ownership and was not the ownership of the present accused. 1t is incorrect to suggest that the accused pleaded her innocence before me. It is also incorrect to suggest that she informed me as nothing was belonging to her and we have falsely roped her in this case as the incriminating articles belong to Awal Khan accused and she was not in the knowledge of these articles."
9. Although it is denied that the basket was held by the lady appellant at the crucial moment when the lady was de-boarded from the wagon, but assuming for the sake of argument that she was carrying the basket containing the clothes of the children as well as the packets stuffed with the incriminating material, the question would arise whether she was conscious of the fact that these packets contained no other material but the contraband. Moreover, it is also to be kept in mind that she was escorted by the husband and the husband had the superior domain over her as well as the accompanying children. In the situation of the case when there is no material to support or even suggest that she was either owner or a conscious carrier of the polythene bags or had knowledge of the contents of the bags, it would not he possible to fix her with a liability of being a carrier of narcotics with knowledge. Moreover, it is highly debatable whether serfs and dependents whose decisions and conduct are controlled by other dominant character should be made answerable for the unworthy conduct of their superior, If head of is family distributes objectionable material among his were and children but continues to remain in actual control or domain over the same, these dummies cannot be punished for being loaded with incriminating stuff for the simple reason that the domain and the constructive possession of the material remains of no other than the dominant character. We see no difference in a situation stated above and the situation when contraband material may be recovered from the house of a person although it is lying concealed in the belongings of another member of the family. ()n these considerations also it would be difficult to sustain the conviction of appellant Mst. Hussan Bibi.
10. So far as appellant Awal Khan is concerned, we would rely on the statements of P.Ws.
Muhammad Ismail, Ghulam Rasool, Excise Inspector and Muhammad Hanif, A.S.1. And affirm his conviction.
11. The result is that Jail Criminal Appeal No.179/1 of 1990 filed by Mst. Hussan Bibi is allowed, her conviction and sentences are set aside and she is acquitted of the charge. She should be set at liberty forthwith if not wanted in any other case.
12. The appeal of appellant Awal Khan is dismissed. There is a suo motu notice for enhancement of sentence of appellant Awal Khan. In our opinion the sentence of ten years' R.I. Is not commensurate to the gravity of the charge against him. We would, therefore, enhance the term of imprisonment from ten years to fifteen years' R.I. The sentences of thirty stripes and fine of Rs.15,000 (Rs. Fifteen thousand) or in default to further R.I. For two years are maintained. Benefit of section 382-B, Cr.P.C.
Extended to appellant Awal Khan would also be given.