' RANA BHAGWAN DAS, J.--- This appeal under section 410, Cr.P.C. Is directed against the judgment and conviction, dated 25-2-1999 passed by learned Special Court for Control of Narcotic Substances, Jacobabad convicting and sentencing the appellants under section 9(c) read with section 15 of the Control of Narcotic Substances Ordinance, 1995.
2. Facts in a nutshell leading to this appeal appear to be that on 25-4-1996 S.H.O., Qurban Ali Soomro was available at Airport Police Station, Jacobabad when P.C. Sher Ahmed informed him that he had a spy information that a person and a lady were carrying substantial quantity of Charas to Sukkur via Jacobabad. Accordingly S.H.O. In company of P.Cs. Sher Ahmed, Punhal Khan and Ali Khan duly armed and in police uniform proceeded for arrest of the offenders and recovery of the narcotic substance. At about 5-00 p.m. They reached Babal Mill Chowk when they received spy information that the offenders passed away towards wagon stand for Sukkur. Police party went towards Palace Hotel, Jacobabad when the spy pointed at the appellants. S.H.O. Sent for a lady constable for his assistance by the use of a wireless. Accordingly S.I.P. Mulla Mahmood alongwith police force and lady constable Khurshid Begum arrived at the scene. With her help S.H.O.
Apprehended both the appellants. On interrogation both of them disclosed to be residents of Ranipur. Appellant Rani was carrying a child aged about one year in her lap. Through good offices of lady constable Khurshid Begum person of this appellant was searched whereupon twenty slabs of Charas were recovered from her waist coat below her shirt. On weighment narcotic was found to be ten kilograms. One of the slabs was sealed for chemical analysis while the other slabs were sealed separately. Both the appellants were arrested, a memo. Was prepared and on return to police station F.I.R. For offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 was registered. They were prosecuted for the above offence showing co-accused Amir Bux as absconder.
3. At the trial after declaring co-accused Amir Bux as proclaimed offender, both the appellants were charged under section 9(c) read with section 7 of Ordinance VI of 1995. Both the appellants pleaded not guilty to the charge. Prosecution examined P.C. Sher Ahmed P.W.1, Qurban Ali P.W.2 and Khurshid Begum P.W.3 in support of its case.
4. In their respective statements appellants denied the allegations against them and claimed that on the material day they had come to attend marriage ceremony of Juman at Ahmed Mian Minor.
Appellant Ali Muhammad claimed that he alongwith his sister Mst. Rani went by tonga to a hotel when their relative Kaloo entangled them in this false case. Appellant Rani further alleged that "we have been involved falsely by our relative Jalal who is resident of Jacobabad Town and has now shifted to village Thariri, District Jacobabad". Appellant Ali Muhammad examined D.W.1 Juman Gurgej in his defence while no evidence in defence was adduced by the co-appellant.
5. Upon assessm ent of the oral evidence as well as Chemical Examiner's Report certifying that the parcel duly sealed forwarded to him contained Charas, the Special Judge after modification of the charge under section 9(c) read with section 15 of the Ordinance, 1995 convicted the appellants and sentenced them to life imprisonment and to pay fine of Rs,one million each or in default to undergb R.I, for two years, In the amended charge appellant All Muhammad was charged for vntravention of the provisions of section 14 punishable under section 15 of the Ordinance, 1995 whereas appellant Mst. Rani was charged under section 9(c) for contravention of the provisions of section 6 of the Ordinance.
6. Sole point for determination in this appeal is whether both the appellants were rightly convicted for the offence charged?
7. We have heard learned counsel for the parties and given our anxious thought to the relevant evidence on record. Learned counsel for the appellants vehemently contended that it was humanly impossible for a lady to carry ten kilograms of Charas on her person in her waist coat; that the evidence on record did not inspire confidence inasmuch as no private person was associated as Mashir and lastly that narcotic substance though allegedly recovered on 25-4-1996 was sent through letter, dated 9-5-1996 but received by Chemical Examiner on 12-12-1996.
8. Adverting to the first contention of the learned counsel for the appellants, as we entertained some doubt about the capacity of the lady appellant to carry twenty cakes of Charas, weighing ten kilograms in her waist coat under her shirt, after partly recording the judgment but before finalizing it, sent for the appellants from their respective prisons as well as the case property.
Accordingly appellants as well as the case property were produced before us in the Court when we unsealed the packet containing 19 cakes of Charas as well as the waist-coat which contained small pockets for containing cakes of Charas. From her physique and health we were satisfied that the appellant could contain the amount of Charas in the waist-coat on her person under the shirt and it was not improbable for her to carry out this quantity of Charas as was, found by the police party at Jacobabad'. The circumstance that the appellant was also carrying her small child aged about one year in her lap also did not appear to be unsurmountable hurdle in proceeding with the quantity of Charas on her person. On the facts stated it appears that the lady appellant was probably hired by some drug-trafficker as otherwise in the normal course of business women in this part of the country do not generally indulge in such nefarious and anti-social crimes. This view which may not be wholly correct, finds further support from the fact that she was accompanied by appellant Ali Muhammad who in his statement before the trial Court described her as his sister whereas on our questioning in open Court at the time of hearing final arguments, he described her as his "Khala" (aunt). This association was most probably found necessary to provide a shelter and protection to the lady, should she come across a difficult situation. At any event we felt satisfied that it was not humanly impossible to carry ten kilograms of Charas for the lady appellant for monetary considerations or otherwise.
9. Reverting to the second contention of the learned defence counsel' that the prosecution evidence did not ..Inspire confidence inasmuch as no private person was associated as Mashir of recovery, it may be observed that the provision of section 103, Cr.P.C. Relating to the search of a place would hardly be attracted in the instant case inasmuch as Police Officer on receipt of information was required to make search of the appellants and not to search a place as misunderstood. Undisputedly this was not a case of search of a dwelling house or closed premises which might require the association of two or more respectable inhabitants of the locality.
Furthermore, no question as to the presence of independent persons at the place of arrest and recovery was directed to the Investigating Officer to justify such objection at this stage. In the absence of any challenge to the evidence of the Investigating Officer and his subordinate police official who acted as Mashir no exception can be taken to the evidence of both the witnesses for the simple reason that they happen to be from the police personnel. Even otherwise it has been observed by superior Courts time and again that police witnesses are as good as any other witness unless it is shown that they were unfavourably disposed towards the accused or hostile to him with ulterior motive. Obviously Police Officers belong to Jacobabad; both the appellants claim to be residents of Ranipur while the national identity card of appellant Ali Muhammad appears to have been issued from the Nationality and Registration Office, Quetta. The allegation in the respective statements of both the appellants that they had been victimised by their enemies being vague, general and absurd on the face of it, does not merit any serious consideration and we think that the evidence on record cannot be brushed aside on this ground alone.
10. Learned counsel assailed the prosecution evidence by pointing certain discrepancies, namely, P.W.'Sher Ahmed who said that police party went to the place of incident by Koban van whereas S.H.O. Qurban Ali claimed that they had gone on foot. Apparently there appears to be a divergence of statement, fact of the matter is that P.C. Sher Ahmed was examined after about fourteen months of the incident whereas S.H.O. Qurban Ali testified after passage of two years. Such long interval between -- the occurrence and the Court proceedings may perhaps be a reasonable explanation for this minor deviation. Such discrepancies occur as Police Officers are confronted with assignments of multifarious nature and it is humanly difficult to memorise each and every circumstance by heart with exactitude. Learned counsel then invited our attention to the circumstance that S.H.O. Qurban Ali had stated that they saw the appellants going on a tonga for wagon stand whereas P.C. Sher Ahmed stated that both the appellants were found sitting in a wagon which had not yet moved for Sukkur. Be that as it may for similar reasons discrepancy can be ignored as nothing turns out on the question of recovery of the narcotic substance from the possession of appellants. In any event inconsistency in the evidence does' not militate against the material fact of recovery from the possession of the appellants on the appointed date, time and place.
11. Lastly learned counsel contended that though the recovery of narcotic substance was purportedly made on 25-4-1996 and the Investigating Officer claimed that he had sent the sealed parcel through a constable whereas Chemical Examiner's Report Exh.26 indicated that the sealed parcel was received by him on 12-12-1996 as per Letter No,12, dated 9-5-1996 sent by S.H.O., Police Station Airport. Contents of the Chemical Examiner's Report may be correct on their face value, no question was directed to the witness when he exhibited this document in evidence. With regard to the assertion that the S.H.O. Had sent all narcotic substances to the Chemical Examiner the same day there appears to be an innocent mistake of fact when he said that he sent the parcel on the same day. However, no question suggesting any substitution, tampering or fabrication of the narcotic substance was suggested to the S.H.O. As well as the Mashir of arrest and recovery with the natural consequence that overwhelming evidence otherwise can be safely relied upon which cannot be discarded for this reason alone. It is not the case of the defence that the case property had changed hands or that the property recovered from the possession of the appellants was tampered or substituted with any ulterior motive. Delay in receipt of the parcel for whatever reason it may be does not, therefore, appear to be fatal to the prosecution case and does not militate against bona fides of the investigation.
12. The matter does not end here. Appellant Ali Muhammad in order to rebut the prosecution version examined D.W. Muhammad Juman who stated before the trial Court that both the appellants had attended his wedding at his village and left at about 3-00 p.m. Later he came to know that they were arrested by police but he did not visit the police station to say that the appellants were related to him or that they had visited his village to attend his marriage ceremony.
During cross-examination it transpired that this person did not have proper credentials as the N.I.C.
Produced by him was obtained from a third person which speaks volumes about his own identity.
Even otherwise his evidence does not have the impact of negating the prosecution evidence which was rightly retied upon.
13. Before parting with this judgment it may not be out of context to deal with another discrepancy apparent on the face of record as to identification of waist coat put on by appellant Mst. Rani. In her statement P.W. Mst. Khurshid Begum, lady searcher disowned the waist coat article "B" shown to her in the trial Court asserting that it was not the same. She voluntarily stated that the under-shirt from which she had secured the Charas was of white colour whereas article "B" was of black colour.
From the trend of her cross-examination it appears that this witness was making an obliging statement towards the appellants for the reasons best known to her. Indeed the waist coat produced in Court and examined by us appeared to be blackish in colour and such is the description of the property produced by the police before the trial Court as would appear from the list of property. Another Another instance of her attempt to spoil the prosecution case can be spelt out from her evidence during the cross-examination to the effect that her signatures were not obtained on the Mashirnama of the arrest and recovery as well as on the sealed packets. Indeed it is not the prosecution case that she was ever made Mashir of arrest and recovery of narcotic substance. Investigating Officer as well as Mashir She Ahmed have unanimously stated that in fact P.C. Sher Ahmed and Mull Mahmood Pechooho, Incharge Special Investigation Team acted as Mashirs who actually signed the memo. Of arrest and recovery. Likewise during her cross- examination she dishonestly stated that her statement was recorded by S.H.O. At the time of making recovery and not after the registration of the F.I.R. Which is another attempt to damage the .Prosecution case only with an ulterior design which can only be regretted. We, therefore, think that such variations in her evidence per se are not enough to adversely affect the truth of the prosecution case which was proved to its hilt.
14. For the aforesaid facts and reasons there is no merit in this appeal which must fail and is hereby dismissed.