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Petitioner: NASRULLAH VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Raja Fayyaz Ahmed Title: NASRULLAH vs THE STATE Case No.: Criminal Appeal No,79 of 1998 Date of Judgment:1998-06-18 Reported As: 1998 P Cr. L J 2086 Result: Appeal dismissed
JUDGMENT
JUDGMENT IFTIKHAR MUHAMMAD CHAUDHARY, J.--- This appeal has been filed under section' 45 of Control of Narcotics Substances Ordinance read with section 410, Cr.P.C. against the judgment, dated 28-2- 1998 passed by learned Special Judge, Noushki whereby appellant Nasrullah son of Muhammad, caste Muhammad Hassni has been convicted/sentenced under section 9 of the Ordinance to life imprisonment. The prosecution case is that on 13-10-1997 P.W. Major Rehmat Ali Shah lodged F.I.R. Exh.P.1/B bearing No.54 of 1997 with Tehsildar Nokundi under sections 6 and 7 of Narcotics Substance Control Act against appellant Nasrullah alleging that on said date in pursuance of a secret information to the effect that during the preceding night at 1-00 a.m. a vehicle brought narcotics and unloaded it in the house of appellant. He alongwith his staff as well as Dafedar Levies Abdul Sattar son of Jangi Khan raided the house of convict and recovered 16 bags of opium (16 x 10 = 160 Kg. total). Each bag had 10 Kg. and in this manner the 160 Kg. of opium besides on personal search of appellant Iranian currency, i.e. 2150 Tummons were also recovered. Inventory of the recovery was made in presence of appellant who as a token of accepting the recovery put his signatures on it. Accused was arrested on the spot, therefore, Murasala prepared at the spot was sent through Defedar Abdul Sattar alongwith accused and recovered currency for registration of the case. It may be noted that P.W. Mir Zahir Khan instead of incorporating contents of the Murasala in F.I.R. as a whole only recorded its substance. On completion of investigation vide final report Exh.P.5/B he forwarded the case to Special Judge, Noushki. Learned trial Court on having gone through the material so placed before him read out charge to appellant on 29-12-1997 under sections 6, 7, 8 and 9 under Control of Narcotics Substance Ordinance read with sections 3 and 4 of Prohibition
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(Enforcement of Hudood) Order, 1979. Appellant did not plead guilty, therefore, prosecution to substantiate the accusations examined:-- (i)P.W. Major Rehmat Ali Shah; (11)P.W. Nadir Khan Lance Nike; (iii)P.W. Abdul Sattar, Dafedar Levies; (iv)P.W. Syed Abdullah, Chemical Expert. He produced report Exh.P.4/A; (v)P.W. Mir Zahir Khan son of Sardar Mehrullah Khan, Tehsildar Noukundi/Investigating Officer. Appellant denied the prosecution case in his statement under section 342, Cr.P.C. stating therein that Dafedar Abdul Sattar is his rival, therefore, the prosecution witnesses deposed against him. In the statement on oath plea of appellant was that he was called through a child by Malitia people when he was present in the house of Agha Muhammad and when he came out of his house and went towards them; an Officer of Malitia and Dafedar Abdul Sattar called him and he was made to sit in the vehicle and then they took him alongwith them. The place from where he was arrested by the Malitia people is situated at 500--600 paces from his house. He also deposed that no opium was recovered from his house. He had worked as labourer with Dafedar Abdul Sattar on his land and he demanded Rs.1,300 as his labour charges from him, but he was not paying the same and due to this he has developed rivalry against him. In defence he also produced to Agha Muhammad. Learned trial Court on completion of trial found the appellant guilty for the offence under section 9 of Control of Narcotics Substance Ordinance and sentenced him to life imprisonment, as such instant appeal has been filed. Mr. M.A. Chishti, learned counsel appeared on behalf of appellant; whereas Mr. Tariq Mehmood, Advocate represented to State through Anti-- Narcotics Force. Learned counsel for appellant contended that the trial Court took cognizance of the offence under sections. 6, 7 and 8 of Narcotics Control Substances Ordinance (N.C.S.O.) and had drawn proceedings under the Ordinance, although it had been repealed by the Control of Narcotics Substance Act, 1997, published in the Gazette of Pakistan Extraordinary Part I on 11-7-1997, therefore, the repealed law had rendered the whole proceedings illegal, as defect is not curable under section 537, Cr.P.C. On the other hand learned counsel for the State argued that error being pointed out by appellant's counsel is curable under section 225 read with section 537, Cr.P.C. He relied on PLD 1972 Lah. 177 and PLD 1984 Pesh. 51. In instant case admittedly offence was allegedly committed by appellant on 13-10-1997 when Control of Narcotics Substance Ordinance, 1997 published on 7-3-1997 (Ordinance XLIII of 1997) has already been repealed/replaced by the Control of Narcotics Substance Act, 1997 (Act XXV of 1997) (hereinafter referred to as the "Act of 1997"). As it has been mentioned hereinabove that vide Murasala Exh.P.l/B P.W. Major Rehmat Ali Shah (complainant) 75-Wing Commander Kharan Rifles requested to Tehsildar Noukundi for registration of the case under sections 6, 7 and 9 of Narcotics Control Act-Ordinance, 1995. But P.W. Mir Zahir Khan did not incorporate sections 6, 7 and 8 of the Act in the F.I.R. and just mentioned therein "4 Hadd Prohibition Drugs". Similarly challan was forwarded by Assistant District Attorney, for trial of the accused under sections 3 and 4 of Hadd Ordinance. On receipt of challan alongwith evidence recorded during investigation learned Special Judge, framed charge, dated 29-9-1997 against the appellant under sections 6, 7, 8 and 9 of the C.N.S.O. read with sections 3 and 4 of Prohibition (Enforcement of Hudood) Order, 1979. The accused was duly represented by the counsel who did not point out that Ordinancehas been replaced by the Act of Parliament, therefore, instead of mentioning the word "Ordinance", it may be written as the Act of 1997.
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It may be noted at this stage that notwithstanding the fact that under which provisions of law challan had been submitted by the Investigating Agency, the Court seized with the matter is not bound to depend on the opinion of the Investigating Agency as it has independent jurisdiction to decide that under which provision of law cognizance of the offence has to be taken. There could be cases where Investigating Agency rightly or wrongly had mentioned particular provisions under which the accused sent up to face trial has been found prima facie guilty for the commission of crime, but the Court on its independent application of judicial mind can take cognizance of the offence under the provisions other than incorporated in the F.I.R. or in the final report by the Investigating Agency. Instant case has been tried by the Special Court appointed under the Act of 1997, therefore, the question for consideration would be that by mentioning N.C.S.O. instead of "Act of 1997" whether the Court has committed error on account of which prejudice has been caused to appellant. It may be noted that in view of background referred to hereinabove particularly the contents of Murasala EXh.P.1/B disclosed that from ab initio request so made by P.W.1 was for registration of the case against convict under the Act of 1997 and when charge was read over to him no objection of whatsoever nature was raised in this behalf till completion of the trial which culminated in the impugned order. Now the question would be whether error in writing "Ordinance" in the charge instead of "Act" has caused any prejudice to appellant or not? To determine this question comparative study of sections 6, 7 and 8 of the repealed Ordinance of 1997 and the same sections of the Act revealed that they are identical in substance in both the statutes. However, there is beneficial difference in section 9 of the Ordinance and the Act of 1997 respectively. For the sake of convenience comparative table of sections 6, 7 and 8 in both the statutes is reproduced hereinbelow:-- ORDINANCE Section 6. Prohibition of possession of narcotic drugs etc. of narcotic drugs etc.---- No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliveron any terms whatsoever, transport, despatch, any narcotic drug,psychotropic substance or controlled substance, except for medical; scientific or industrial purposes in the manner and subject to such conditions as may bespecified by or under this Ordinance or any other law for the time being in force. Section 7. Prohibition of, import or export of narcotic drugs, etc. (1)No one shall-- (a)import into Pakistan; (b)export from Pakistan; (c)transport within Pakistan; or (d) Tranship; anynarcotic drug, psychotropic substance or controlled substance, save in accordance with the rules made under subsection (2) and with the conditions of any licence, permit orACT Section 6. Prohibition of possession No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, despatch, any narcotic drug, psychotropicsubstance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Ordinanceor any other law for the time being in force. Section 7.Prohibition of import or export of narcotic drugs, etc. ---- (1) No one shall--- (a) import into Pakistan; (b) export from Pakistan; (c) transport within Pakistan; or (d) tranship; any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under subsection (2) and with the conditions of any licence, permit or authorisation for that purpose which may be required to be obtained under those rules. (2) The Federal Government may make rules permitting and regulating the import into and
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authorization for that purpose which may be required to be obtained under those rules. (2)The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transhipment of narcotic drugs,psychotropic substances or controlled substances and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or, transhiped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportationand transhipment. 8.Prohibition on tracking or financing the trafficking of narcotic drugs etc. --- No one shall-- (a)organize, manage, traffic in, or finance the import, transport, manufacturing trafficking of, narcotic drugs, psychotropic substances or controlled substances; or (b)use violence or arms for committing or attempt to commit an offence punishable under this Ordinance.export from Pakistan, transport within Pakistan and transhipment of narcotic drugs, psychotropic substances or controlled substances and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhiped, the form and conditions of licence, permit or authorities by which such licences, permits or authorisation may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transhipment. Section 8.Prohibition on tracking or financing the tracking of narcotic drugs etc.---No one shall--- (a) organise, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs,psychotropic substances or controlled substances; or (b)use violence or arms for committing or attempt to commit an offence punishable under this Act. Perusal of section 9 of the Ordinance indicates that previously as per terms of its subsection (b) imprisonment to the extent of 7 years was provided, but with minimum sentence of 3 years with fine, if 100 grams in case of heroin, cocaine, opium derivatives and coca derivates whatsoever name or composition or 200 grams in case of opium, coca leave or psychotropic substance with whatever name or composition and 1 Kg. or equivalent in case of any other narcotics, drug or controlled substance not specified in sub-clauses (i) and (ii) are recovered; whereas in section 9 of the Act of 1997 no minimum sentence has been provided and it was left to the discretion of the Court to award imprisonment which may extend to seven years and shall also be liable to fine if the quantity of narcotics, drugs, psychotropic substance or controlled substance exceeds 100 grams, but does not exceed 1 Kg. In other words in subsection (b) of section 9 beneficial change was recorded, therefore, accused instead of claiming its benefit cannot argue that he has been wrongly tried. In addition to it as far as change/amendment in subsection (b) of section 9 is concerned it is not applicable on the fact of the case in hand because appellant's case is covered under section 9(c) whereas proviso has been enacted casting a mandatory duty upon the Court that if the quantity exceeds 10 Kgs. the punishment shall not be less than life; whereas under its repealed provision, i.e. section (c) of the Ordinance the punishment was death or imprisonment for life and shall also be liable to fine which shall not be less than Rs.10,00,000, if the quantity of
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narcotic drug, psychotropic substance or controlled substance exceeds the limit specified in clause (b). Now turning towards section 225, Criminal Procedure Code it is to be seen that this section speaks that no error to stating either offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be, at any stage of the case, material unless the accused was in fact misled by such error or omission and it has caused failure of justice. At this stage reference to section 537, Cr.P.C. would be beneficial which deals in respect of findings or sentence reversable by: reason of error or omission in charge or other proceedings. According to this section, as well the orders/sentence can be reversed if the error, omission or irregularity in the mode of trial etc. in fact, has occasioned a failure of justice and in terms of explanation attached thereto the Court shall have regard to the fact where the objection could and should have been raised at any earlier stage in the proceedings. Learned counsel for the appellant has failed to point out that what prejudice or injustice has been caused to convict by mentioning "Ordinance" in the charge instead of "Act" of 1997, particularly when there is no substantial difference in the charging sections namely, sections 6, 7 and 8 of the - Ordinance as well as Act of 1997 respectively and as far as section 9 in the Ordinance is concerned it only deals with the punishment. It may be' noted that as far as mentioning of the section in the charge-sheet is concerned; it is not material because requirement is as to whether substance of allegations with reference to the commission of crime, day, time etc. has been put to the accused and if the' charge on applying all the tests under the Criminal Procedure Code, can be held to be - valid and correct in that case trial cannot be held illegal merely by writing provisions of a repealed Ordinance. In forming this view we are fortified with the judgment reported in Merajuddin and, 3 others v. The State PLD 1972 Lah. 177, PLD 1984 Pesh. 51. Mr. M.A. Chishti, learned Advocate then argued that as per report of Chemical Analyser Exh.P.4/A the material so sent for examination falls within the category of "Opium baked", therefore, according to the definitions of controlled substance, narcotics, drug, psychotropic substance under sections 2-K, 2-S and 2-Z read with the Schedule is not cognizable by the Special Court under the Act of 1997 and expressions employed in criminal law by the law givers has to be construed strictly and no extending meaning can be given to them. He further stated that although the word "opium" has been defined under section 2-T of the Act, but it does not cover to "opium baked" as for it a separate definition has been given by section 2(U) under the heading "Opium derivatives". Learned counsel to substantiate his contentions made reference to Interpretation of Statutes by Bindra, 7th Edn. p.48. Mr.'Tariq Mehmood controverting to the stand of appellant's counsel stated that sections 6, 7 and 8 of the Ordinance as well as the "Act" have commonly used three expressions namely, narcotics, drug, psychotropic substances and controlled substances. According to him the definition of Controlled Substances under section 2-K covers to "Opium baked" as it defines any substances which may be used for production or manufacture of narcotics, drugs or psychotropic substances. He further stated that to understand the process of manufacture reliance has to be placed on section 2(P) as well. There is no cavil that all the three charging sections namely, sections 6, 7 and 8 of the, Act of 1997 which deals with, prohibition of possession of narcotics, drugs, etc., prohibition of import or export of narcotics, drugs etc. and prohibition on trafficking or financing of narcotics, drugs etc. respectively have in their folds following three important expressions:-- (i)narcotic drug. (ii) psychotropic substances; (iii) controlled substances, except for medical, scientific or industrial purposes; Sections 2-S and 2-K have defined to narcotic drugs and controlled substances. As they are relevant for disposal of instant appeal, therefore, definitions of these two expressions are
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reproduced hereinbelow:-- "Section 2------------------------------------------------------------------. (K)'Controlled substance' means any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substances; (S)'Narcotic drugs means coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs; As far as definition of psychotropic substance is concerned it is not relevant, therefore, the same is not being discussed. The definition of narcotic drugs defines to "opium" only and it has not defined to the "opium derivatives". As far as "opium means" is concerned it is defined under section 2-T which does not speak in respect of prepared opium (baked opium); whereas definition of "controlled substances" means any substance which may be used for production or manufacture of narcotic drug or psychotropic substances. The word "manufacture" used under this expression attracts to section 2(P) which is also reproduced hereinbelow for the sake of convenience:-- "Section 2 --- 'manufacture', in relation to narcotic drugs or psychotropic substances, includes--- (i) all processes by which such drugs or substances may be obtained; (ii) refining of such drugs or substances; (iii) transformation of such drugs or substances; and (iv) making or preparing such drugs or substances; A careful perusal of above definition leads us to hold that in relation to narcotic drugs, opium derivatives also falls under the definition of C "manufacture". Thus, to define the "Opium derivatives" we have-to refer to section 2(U) according to which opium derivative includes prepared opium, i.e. any product of opium obtained by any series of operations designed to transform Y opium into an extract suitable for smoking and gross or other residue remaining after opium as smoked. We are in agreement with the learned counsel that in criminal law definition clause is to be construed strictly as it has been stated in the Interpretation of Statutes by Bindra, 7th Edn. 1984. In the same edition under the heading "definition" commentator has discussed following principle:-- "The definition given in an Act must be substituted for the word 'defined' wherever it occurs in the Act, but there is a well-known canon of construction that in certain circumstances when a strict adherence to the rule would lead to an anomaly or repugnance the rule will apply only when there is nothing repugnant to it in the context." Applying the above principle on the case in hand while making reference to "controlled substances" definition of "opium derivatives" which is ordinarily obtained after the process of manufacturing as defined under section 2-P can be applied, therefore it would also include prepared opium. Thus, for these reasons we are of the opinion that "opium baked" is covered by the "controlled substances" as such is cognizable by the Special Court constituted under the Act of 1997. Learned counsel for appellant then contended that P.W.1 admittedly had taken out six grams sample out of only one packet containing 10 Kg. instead of drawing samples from each packet, therefore, without prejudice to his any other plea it would be deemed that only 10 Kg. opium has been recovered from the possession of appellant, therefore, he was not liable for life imprisonment under the provisions of section 9 of the Act of 1997 and the trial Court could have not awarded him sentence more than 14 years. Learned counsel for the State contended that it is not the case ofappellant before the trial Court that opium was not recovered at all by P.W.1 Major Rehmat Ali Shah. Actually his case was as it flows from the trend of cross-examination that opium was recovered, but it does not belong to him as at that time he was in the house of D.W. Agha Muhammad from where he was arrested and the reason of his arrest was rivalry with Dafedar Abdul Sattar though this plea was introduced at a highly belated stage when the
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statement of accused was being recorded under sections 342, Cr.P.C. and 340(2), Cr.P.C. therefore, examining samples by the Investigating Officer from each packet was not mandatory. Had his plea been vice versa, then argument so advanced by appellant's counsel might have carried some weight. He further stated that under section 29 of the Act of 1997 once it is established that the accused had possession of illicit articles then burden shifts upon him to establish before the Court that he was not found in possession of narcotic drugs or controlled substances. Learned counsel further stated that once in the instant case prosecution has established possession from the house of accused and if he had doubt about the contents of the bags he could have made request to the trial Court for examination of all the remaining bags to show that contents thereof are not narcotic drugs or controlled substances particularly when the plea of appellant's counsel is that as per the contents of final report submitted by P.W. Mir Zahir Khan Exh.P.5/B that it was not the accused, but someone else had thrown narcotics/controlled substances in his house during night by deceiving to his wife on the pretext that the bundles contained clothes. Learned counsel made reference to 1988 SCMR 1899, PLD 1990 SC 1088, 1176 and 1186. There is no doubt that P.W. Rehmat Ali had taken out samples only from one packet of 10 Kg. to determine whether it contained "opium" or not. As far as remaining 15 packets are concerned no sample was taken from them. In respect of the recovered samples P.W. Syed Abdullah produced report Exh.P.4/A. In examination-in-chief he stated that the material sent to him for analysis was found to be "baked opium". His statement in cross-examination was not challenged at all because he was not questioned by the learned counsel for appellant appearing during trial. So. in view of his unchallenged statement there is no doubt that one bundle out of which the sample was taken contained opium baked. Now the question is that what were the contents of remaining 15 bundlesand whether the appellant during cross-examination on the witnesses or his own statement had denied that contents of the bundles Were not opium? In this behalf reference may be made to the statement of P.W. Major Rehmatullah who deposed that from the house of accused Nasrullah 16 bags of opium were recovered. Each bag contairied 10 Kgs. of opium. The total quantity of opium on weighing was 160 Kgs. Recovered opium was taken into possession vide a recovery memo. EXh.P.1/A. It may be noted that the recovery memo. bears thumb-impression of appellant besides the signatures of P.W. Abdul Sattar Dafedar levies and Lance Nike Nawab Khan, Nadir Khan as well as signatures of Major Rehmat Ali Shah. The witness further stated that 16 bags were kept into a parcel which were sealed by him under his signatures. He produced these parcels as…
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