P L D 1993 Supreme Court 32 (PLP)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑In this case of narcotics the petitioners who stand convicted with award of various sentences under the Prohibition (Enforcement of Hadd) Order, 1979 have sought leave to appeal. Shakirullah P.W.2, according to learned counsel, has stated the main prosecution case. His deposition‑in‑chief reads as follows:‑‑ "I am marginal witness to recovery memo. Exh.PR vide which the 1.0. took into his possession one Suzuki bearing No.2400/PRM alongwith registration copy in the name of Iftikhar Hussain, resident of Rajar Charsadda, a copy of driving licence in the name of Shah Wali accused and heroin stuff packed in the plastic and cloth envelope recovered from the seat of the aforementioned Suzuki driven by accused Shah Wali. The accused Hazrat Rehman was also seated in front of the Suzuki alongwith accused Shah Wali. On weighment the heroin came to be one kilo, out of the entire stuff the 1.0. separated one gram from the stuff, sealed into a parcel whereas the remaining stuff was sealed into a different parcel. The heroin powder is Exh.P.1. The recovery memo Exh.PR correctly bears my signatures which is also signed by Abdur Rehman the other marginal witness in my presence." Under cross‑examination the witness admitted that the heroin was recovered from the seat of the Suzuki and not from the "technical" possession of the accused. He, however, explained that at the time of recovery no other passenger except the accused was present therein. Learned counsel has contended that the prosecution has failed to prove exclusive possession of either of the two petitioners; that Hazrat Rehman who was sitting on the front passenger scat seems to be less responsible than Shah Wali because as driver of the Suzuki Car the latter can be held to be responsible for what was recovered from his vehicle. Lastly, he argued for sympathy and mitigation in favour of Hazrat Rehman because he having fallen ill is now under treatment in a hospital. It is true that in ‑a case like the present one it is almost impossible to determine as to who was the exclusive owner of the narcotic stuff; in case it did not belong jointly to both of them. Their version of total denial has been rejected throughout. Till this last stage despite having several opportunities of explaining the presence of the heroin on the Suzuki seat which was occupied by both of them and none else, neither of them came out with even a shred of truth to assist the Court. Under the present Constitutional and juridical set‑up in Pakistan the old notion so‑called of the entitlement of an accused person to tell a lie and divert the Court in wrong channels of inquiry, cannot be accepted. Particularly when the amended law provides abundant opportunity and scope for the accused to make deposition as a witness and also to state truth it, that capacity. While expecting all benefits from the Court to follow the presumption of innocence till proved guilty, the accused cannot be absolved of his duty to help the Court to discover the truth if need be by appearing as a witness for himself and divulging the truth. If this cuIture of criminal litigation gets‑evolved in true spirit of the present legal Constitutional, juridical and Islamic ethoes, new avenues of protection of the accused's interest would open. This aspect can and would ‑particularly be highlighted by the Courts in developing a new philosophy of sentencing. In this sphere the total denial by an accused who in reality participated in a crime often remains deprived of the legitimate benefits in the area of sentencing. For example, in this very case although the point had. not been argued before us if either of the accused would have rightly and truly taken the plea of a carrier proving the other to be the owner the former could very easily have been granted benefit in the form of reduced ‑sentence as compared to the latter. One very strong possibility is that both of them owned the narcotic stuff jointly; but if at all there. was any possibility of one being the owner and the other a carrier, coming out with truth would in no case have been less benficial to them than what they have now earned by telling lies at the trial. This new orientation and opportunity afforded to the accused persons by the change in the system has not been fully availed of by the Accused side in the administration of'criminal justice. The concerned quarters might pay some attention to the awareness and guidance procedures for the benefit of the persons/accused of criminal offences, who may rile review applications, formal or for suo motu exercise. 'After going through the evidence, with these remarks, we arc unable to hold either that none of the two petitioners was in possession of the heroin nor that only one was, in possession and the other had no concern with it. It was D in. their joint possession. And in the light of the foregoing discussion in all probability in their joint ownership. Hazrat Rehman can at best invoke prayers j for his recovery from illness but no sympathy for what he has done. Accordingly, leave to appeal is refused. M.B.A./S‑714/S Appeal refused.