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Petitioner: MEHRAB KHAN and 4 others VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Tariq Mehmood, Ahmed Khan Lashari Title: MEHRAB KHAN and 4 others vs THE STATE Case No.: Criminal Appeal No,103 of 2001 Date of Judgment:2001-11-05 Reported As: PLD 2002 Quetta 58 Result: Appeal dismissed
JUDGMENT
JUDGMENT TARIQ MAHMOOD, J.--Judgment dated 26th April, 2001, passed by learned Special Judge (CNS), Loralai in CNS Case No,04 of 2000 has been challenged in the instant appeal, whereby; appellants have been found guilty under section 9(c) of the Control of Narcotic Substances, Act, 1997 and sentenced to imprisonment for life and a fine of Rs,5,00,000 each, in default of payment of fine each to suffer S.I. For five years. Benefit of section-382-B, Cr.P.C. Was extended in their favour. The brief facts of the case are that pursuant to an authentic secret information received by Dr. Siddiqullah Khan, the Assistant Collector Customs, Quetta to the effect that huge quantity of narcotics would be smuggled from Afghan border to down cities of Pakistan via Loralai-Rakani route, Special Customs Patrolling Party was constituted with the assistance of F.C. 72 Maiwand Rifles, which made 'Nakabandi' at Rakhni Check-Post. On 6th June. 2000 and at 12-00 hours, the raiding party signaled the four vehicles/trucks to stop. The Customs Staff/raiding party intercepted the trucks and took the four drivers and one cleaner into custody and on checking of the trucks, 11,800 kilograms of baked Charas was recovered. It may be explained that Charas was concealed in the hollow-space inside the iron beams and each beam contained 295 kilograms of baked Charas. Also that each truck was loaded with ten iron beams, containing 2,950 kilograms of Charas. It may be stated that appellants Nos.2 and 5 were driving the trucks and also statedly owners, whereas appellants Nos.1 and 3 are drivers and appellant No,4 was cleaner. As they failed to produce any legal document relating to the offensive/contraband articles, which were seized under provisions of section 3(1) of the Imports and Exports (Control) Act, 1950, sections 2(s) and 16 of the Customs Act, 1969, S.R.O. 895(1)99, dated 3rd August. 1999 read with clauses (8), (9), (89) and (90) of section 157(2) of the Customs Act. 1969 and under Control of Narcotic Substances.Act and
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Musheernama'.In presence of witnesses was prepared. The trucks bearing registration No,QAD- 3282, QAD-7445, LSA-3831 and QAC-9555 were also seized. About which, recovery memo.Was prepared, as the same were used for transportation of the contraband goods made punishable under section 157(2) of the Customs Act, 1969. The accused mentioned above were accordingly arrested and notice under section 171 of the Customs Act, 1969 was also served upon them. In view of these allegations F.I.R. (Exh.P/2-A) was registered with the Customs House, Quetta on the same date at about 10-00 hours. Mr. Muhammad Adnan Faisal, Custom Inspector (P.W.2), after registration of the F.I.R., conducted investigation of the case and recorded statements of the P. Ws. And interrogated the accused. He produced accused before Magistrate for recording statement under section 164, Cr.P.C. He in all took out eight samples from the charas and sealed the same into a separate parcel for chemical analysis and after completion of investigation, filed challan in the learned Special Court, under Control of Narcotic Substances Act, 1997 for trial of the offence against the accused under section 9(c) of, the said Act. The appellants were indicted in view of the accusation. As contained, in the F.I.R. For having contravened the provisions of the Control of Narcotic Substances Act, 1997, made punishable under section 9(c) of the said Act, to which they each pleaded not guilty and the prosecution to substantiate accusation, produced Umar Zada (P.W.1), Muhammad Adnan (P.W.2) and Major Naveed (P.W.3). After close of the prosecution evidence, appellants were examined by the learned Special Court under section 342, Cr.P.C. In the light of incriminating pieces of evidence, which they disputed and contested. However, each of the appellants in answer to Questions Nos.1 and 2 admitted that on the date of incident, the trucks reached to the 'Naka' and was being driven by them and Muhammad Hassan was also with them, as a cleaner. Convicts/appellants also opted to record statement on oath within the purview of section 340(2), Cr.P.C. But did not produce any defence evidence. However, at the request of appellants, Magistrate was examined as Court-witness. After close of prosecution evidence and statement of accused, as hereinbefore mentioned, the learned Special Judge (CNS) Act, convicted and sentenced the appellants. We have heard Mr. Ehsan-ul-Haq, learned counsel for appellants and Hail AkhtarZaman. Learned Additional Advocate-General for the State. Learned counsel submitted that appellants Nos.2 and 5 are owners of the trucks. Who were also driving their trucks, while appellants Nos.1 and 3 were drivers of the trucks and appellant No,4 as merely a cleaner, who was picked up from Khanozai on their way to Dera Ghazi Khan. He maintained that appellants were bona fide transporters/drivers/cleaner and had no knowledge about the illicit substance, lying in the trucks and the recovery of the illicit articles at the best prove that same was recovered from them but not that they had knowledge that illicit Charas was lying in the trucks. Learned counsel forcefully argued that Charas was concealed in bigger beams and each of these bigger beams contained another beam inside, in which the Charas was concealed, therefore, it was humanly impossible for the appellants to know about the contents of the beams. In the alternative, learned counsel argued that in the peculiar facts and circumstances of the case, the possibility that appellants had no knowledge about the illicit substances, cannot be ruled out, and therefore, appellants should be given benefit of doubt. In support of his contention, he referred judgments reported in PLD 1993 FC 53, 1996 SCMR 1541 and 1990 MLD 1199. On the other hand, Haji AkhtarZaman, learned Additional Advocate-General. Contended that the appellants were found in occupation of the vehicles, in which a huge quantity of Charas was being transported and the prosecution through evidence successfully discharged its burden, which appellants even admitted but failed to discharge the burden, which was shifted upon them that they did not have the knowledge about the contents, hence; appropriately and on correct principle
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of law, the learned Special Judge (CNS) Act found them guilty on the charge. Learned Additional Advocate-General maintained that in view of the evidence of the prosecution,it was duly substantiated that all the five appellants were enjoying possession of the narcotics being transported in the vehicles, as well as strong presumptions existed to believe that they had the knowledge about the illicit narcotics, hence: on proper application of law and facts, they have been found guilty by the learned Special Court. Support was sought from judgments reported in 2000 SCMR 36 and 1991 MLD 240. We have appraised the entire prosecution evidence and defence plea of the appellants carefully and; have come to the conclusion that the prosecution successfully proved that on 6th of June, 2000, at about 12-00 hours, Customs officials alongwith others stopped four trucks, coming towards Rakhni Check-Post and four of the appellants were found present on the driver's seat; whereas appellant No,4 was sitting in one of the trucks, statedly as cleaner. The vehicles were searched and Charas concealed in the hollow-space inside iron beams was recovered and on being weighed, it came to 11,800 kilograms. Also that each vehicle/truck was containing 2,950 kilograms of Charas. On all the material particulars, prosecution evidence is consistent, reliable and convince and it is important to point out that neither appellants specifically disputed the recovery of Charas from the vehicles being driven by them (of which appellant No,4 was statedly a cleaner) nor the same was disputed before us and rather admitted. However, learned counsel for appellants contended that although the recovery of Charas has been established from the vehicles/trucks-in-question, mere recovery in that manner was not sufficient to connect the appellants with the crime, as no evidence is available on the record to prove that the appellants were aware that iron beams contained Charas in that manner. Lear-led counsel maintained that the possibility that they were plying the vehicles/trucks, as drivers or its owners without knowing that they were carrying illicit narcotics cannot be ruled out. Since recovery of 11,800 kilograms of Charas has been established beyond reasonable doubt, particularly, in view of the plea taken by the appellants, the question for consideration is, whether the appellants could or can be convicted on the basis of their possession or transportation. It would be relevant at this stage to refer sections 6. 7 and 29 of the Control of Narcotic Substances, Act: "6. Prohibition of possession of narcotic drugs etc.---No one shall produce, manufacture, extract, prepare, possess offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, 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 be specified by or under this Act or any other law for the time being in force. 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) transship, Any narcotic drug, psychotropic substance or controlled substance, save in accordance with the rules made under subsection (2) and with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules. (2).................................... (Underlined is ours) The perusal of aforementioned provisions reveal that word "possession" has been used in a wider sense, so as to include in its fold, transport, dispatch and deliver. Also that transportation within Pakistan is also prohibited and the findings relating to the ownership is not required.
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Word "possession", with reference to section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1985 came up for consideration in the famous case of film star Sanjay Dutt (1994 SCC (Cri.) 1433) and it was observed as under: "Even though the word 'possession' is not preceded by any adjective like knowingly, yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession." The language used in section 29 of the Act is as under:-- "Presumption from possession of illicit articles.---In trial under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of-- (a) any narcotic drug, psychotropic substance or controlled substance; (b)....................... (c)....................... (d)....................... for the possession of which he fails to account satisfactorily." We may refer section 32 of the Dangerous Drugs Act, 1930, which says:-- "Presumption from possession of illicit articles.--In trial under this Act it may be presumed, unless and until the control)/ is proved, that the accused has committed an offence under Chapter III in respect of-- (a) any dangerous drug; (b).......................... (c).......................... (d).......................... For the possession of which he fails to account satisfactorily." We may point out that section 32 of the Dangerous Drugs Act, 1930, came up for consideration in Raghubir's case (AIR 1941 Pat. 177). The relevant portion thereof reads as under:-- "Under section 32 an offence can be presumed only when act of import, export or transshipment or such-like is established. The onus is then on the accused to explain satisfactorily his possession of the dangerous drug." It was further laid down therein as follows:-- "... Presumption cannot be substituted for the proof of facts which go to make up an offence, and in this case the fact of importing itself has not been proved and, therefore, the guilt of the present petitioner cannot be presumed." A similar view, with reference to section 76 of the Punjab Excise Act was expressed in Shamman's case (1985 PCr.LJ 8). We may also refer a case under section 8 of the Suppression of Terrorist Activities Act, 1975 and reported in PLD 1995 Karachi 105, wherein, it was held that initially burden lies on the prosecution and after its discharge, it shifts to the accused. Again similar view was taken by Lahore High Court, while interpreting similar provision contained in the Customs Act. The judgment is reported in 1983 PCr.LJ 1351, and relevant para. Is reproduced below:-- "Ordinarily in a criminal case the burden of proving each and every ingredient of the offence with which an accused person is charged lies entirely on the shoulders of the prosecution. Therefore, in accordance with this well-settled rule before a person can be convicted of being found in possession of smuggled goods the onus of establishing that the goods in question were smuggled should fall on the prosecution. However, the provisions of section 156 (1) (89) and section 156(2) make a departure from the said rule inasmuch as they lessen the burden of the prosecution in this regard, for now the prosecution has only to show that there are reasonable grounds to believe or suspect that the goods found in the possession of the accused person are smuggled. Once this
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has been done, the burden shifts to the accused person to show that the goods found with him were not smuggled. But it is important to, note that the burden shifts to the accused person only after the prosecution has been able to establish that there are grounds for reasonable belief or suspicion that the goods are smuggled." So, it seems to be well-settled proposition of law that it is the primary duty of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted under the presumption contained in section 29 of the Act. It only says that once the prosecution establishes recovery beyond doubt, it is then that the burden is shifted. Section 29 of the Act does not absolve the prosecution of its primary duty to prove its case beyond doubt. However, it may be added that in case a plea is taken, the Court has to see its probability and legal value, dependent upon the circumstances of each case. It would be appropriate at this stage to refer various judgments of superior Courts in such-like cases. In the case of NazirHussain v. The State (1971 SCMR 404), the taxi driver of the vehicle was acquitted in the absence of cogent evidence that he was aware that his passengers were smugglers, carrying Charas or some other contraband item. In the case of Muhammad Shah v. The State (PLD 1984 SC 278), driver Imdad Khan alongwith his companion Saida Khan was convicted. It may be stated that former was the case under Punjab Excise Act and latter was under Prohibition (Enforcement) of Hadd) Order. Both these cases illustrate the rule that the finding of guilty or otherwise in cases like the present one would depend upon the circumstances thereof. It is not necessary to lay down any hard and fast rule, as to the presumptions regarding the driver or conductor of a public vehicle. In another case under Prohibition Order, similar question came up for consideration before the Hon'ble Supreme Court in the case of Said Shah v. State (PLD 1987 SC 288) and while endorsing the afore-mentioned view, it was also noted that illicit substance was being transported in a vehicle, which was in the control and possession of appellants therein. It would be appropriate to reproduce the relevant observations:-- "Insofar as the plea of Muhammad Altaf and Muhammad Ejaz appellants that although the crates contained the liquor were found in their vehicle, they were not aware of the fact that they contained liquor, if Article 3 is strictly construed, would not be of any benefit to them because, it is, amongst others, the transport of the intoxicant which has been made culpable. And it cannot be denied that in fact liquor was being transported in the vehicle which was in the control and possession of these two appellants. But in reality what the law intends is that the culprits should be found, amongst other acts, to have transported or possessed the intoxicant with consciousness about the commodity that it is an intoxicant. It will, however, depend upon the circumstances of each case as to whether the driver or conductor of a public vehicle is conscious regarding the contents of goods he is transporting or carrying as the luggage of a passenger." (Underlined is ours). In the case of Zaheeruddin (PLD 1988 FSC 29), it was observed that no hard and fast rule about conscious, possession can be laid down, whether a person be considered in conscious possession regarding contents of goods, he was carrying in the vehicle would depend upon the circumstances of each and every case. In another case under Prohibition Order, Nadir Khan v. State (1988 SCMR 1899), Hon'ble Shariat Appellate Bench after considering aforementioned cases, held that knowledge and awareness would be attributed to the incharge of vehicle. Also that licensed drivers, having charge of vehicle for long journey, must be saddled with necessary knowledge with regard to the vehicle and its contents. It would be advantageous to reproduce the relevant observations on the subject:--
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"We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being persons incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependant on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it. As regards the lenient treatment to be afforded to the petitioners as mere carriers: It is one of the maxims of the criminal law that a confessing accused is to be dealt with leniently. There are reasons for it because though belated such a confession assists the administration of justice, lends credibility to the prosecution and helps locating the persons who have greater responsibilities in the matter than the criminal himself. But such leniency cannot be claimed or shown to a person who denies the commission of the offence itself to the end rendering no help to identify the real and major culprits and only resorts to it by way of an alternative argument to rely on being a helpless destitute carrier." (Underlined is ours). In the case of Naik Muhammad v. State (PLD 1995 SC 516), appellants therein were passengers in a bus but were charged with recovery of heroin powder concealed in a cavity in the main gate of the bus, which was closed by means of bolts, While acquitting them on the charge, following observations were made:-- "We may mention here that in cases where contraband heroin is found lying concealed in a vehicle in a manner that it is not discoverable on mere inspection of the vehicle and it is necessary to have special knowledge about its concealment to recover it then in such cases, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband article. In such cases, it is necessary for the prosecution to further show that presence of heroin was within his knowledge or that he had such a connection with the vehicle which would make his presence in the vehicle as amounting to his conscious possession such contraband article lying concealed in the vehicle. After going through the entire prosecution evidence, we have not been able to discover any connection of the two appellants either with the ownership of the bus or their connection with the vehicle as a driver or cleaner of the bus much less the possession of the contraband heroin which was recovered from the body of the bus lying concealed in a cavity." (Underlined is ours). In the case of Gul Muhammad v. State (1996 PCr.LJ 1856), it was held that accused therein (other than driver) had the knowledge of the heroin being transported and was not travelling in the truck aimlessly. In the case of Qurban and others v. The State (1996 SCMR 1894), considered by the Hon'ble Supreme Court on appeal from the judgment of Federal Shariat Court and it was held with reference to the appraisal of evidence that accused at the time of recovery of heroin were travelling together in 'the Jeep, which was owned by one of them, and therefore, in the circumstances of the case, huge quantity of 180 bags of heroin could not be foisted to falsely implicate the accused, and; there was no evidence available on record to show that the accused, who owned the Jeep was of tender age at the time of commission of crime, who appeared to be of mature age capable of having understood the legal consequences of the heinous offence, therefore, he did not deserve any leniency on the ground of young age. It was further held that all the four accused having acted in unison were equally responsible for the commission of the crime and had been suitably sentenced, consequently; their conviction and sentences were upheld in the circumstances of the case. In the case of Shah Wali and another v. The State (PLD 1993 SC 32) (on appeal from the judgment of Hon'ble Federal Shariat Court), the Hon'ble Supreme Court having referred to the facts and
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circumstances of the case, which showed that heroin was recovered from the front passenger seat of car occupied by the two accused it was held that heroin was in joint possession of the accused persons as it could not be said that none of the two was in possession or that only one was in possession and other had no concern with it, and; the contention that prosecution had failed to prove exclusive possession of tither of the two accused was repelled. In the case of Sherzada v. The State (1993 SCMR 149), the liability of driver was also considered in view of provisions of section 27, P.P.C. And it was concluded as under:-- "The next point raised by the learned counsel was that it is provided in section 27, P.P.C. That when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned counsel is without force on the face on it because section 27, P.P.C. Is confined to the Pakistan Penal Code only, as the words "within the meaning of this rode" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from section 26 of that Order where certain other provisions of the P.P.C. Have been made applicable." In the case of State v. Banda Gul (1993 SCMR 311), the question of burden of proof with reference to section 187 of the Customs Act was also taken into consideration and following conclusion was arrived at:-- "As stated above, in the opinion of the High Court, as the driver of the truck slipped away, there was no evidence to attribute knowledge of smuggling of the goods to the two co-accused. It appears to us that these observations have been made in oblivion of the provisions of sections 156 (90) and 187 of the Customs Act, under which burden of proof lay on the accused. It was, therefore, for the latter to have proved that they were unaware that prohibited goods were being smuggled." We may also refer case of Adil Ahmed (1991 (SCMR 1951), wherein, in view of provisions of the Customs Act, it was observed that drivers and owners were both responsible. In the case of Rab Nawaz v. The State (PLD 1994 SC 858), the liability of driver was again considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In a case reported in 1984 PCr.0…
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