P L D (PLP)

Mian Shakir Ullah Jan, Addl. A: G., N.‑W.F.P. for the State. Date of hearing: 15th November, 1993. _JUDGMENT MAULANA MUHAMMAD TAQI USMANI, J.‑This appeal, by special lease of this Court, is directed against the judgment of the Federal Shariat Court dated 30‑6‑1991 which. upheld the judgment of the learned Sessions Judge of Swat whereby each one of the three appellants was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to life imprisonment, 10 stripes and a fine of Rs. 10,000 or further 3 years' S.1. in the case of default. They were further convicted under Article 4 of the said order and were sentenced to 2 years' R.I., 10 stripes and a fine of Rs.2,000 or 1 year S.I. in the case of default.

2. According to the F.LR. lodged by Khaista Rehman, S.H.O. Police Station, Totai on 6‑8‑1989 at 2‑00 p.m. the case of the prosecution against the appellants is that IChaista Rehman, the complainant, on receiving a secret information arranged a raiding party consisting of 8 police officials besides the complainant, which effected Nakabandi and intercepted Datsun Car No.9876 which was driven by Saz Muhammad (the acquitted co‑accused of the appellants) which was piloting the Truck No. MRA 5455 coming from Swabi which was also stopped and searched. Some secret chambers were discovered under the floor of the truck where from 72 packets containing 360 kilograms of opium were recovered. According to the FIR, the truck from which opium was recovered was driven by Muhammad Rahman, appellant No.3, and Umar Said, appellant No.l and Khanzada, appellant No.2 were sitting on the front seat. 4 grams from each packet were separated as samples and sent for expert opinion.

3. In order to prove its case against the appellants, the prosecution examined Riyaz Foot Constable, P.W.1 and Khaista Rahman, P.W.2 who are the witnesses of recovery and Nawat. Khan, MHC, P.W.3 who recorded the formal F.LR. The report of the Chemical Examiner, Exh.PD was tendered in evidence wherein it is certified that the recovered material was opium.

4. Saz Muhammad, the Driver of Datsun was tried alongwith the appellants, but was acquitted by the trial Court, because there was no evidence of the allegation that the Datsun was piloting the truck but while giving a statement under section 342, Cr.P.C. he has given the following version which was adopted by Umar Said and Khanzada also:‑ "I, my co‑accused Khanzada and Umar Said had come to the Hujra of one Subhanullah at Degar‑Vela situated in Village Mahsool Kalai. We took our meal there and offered our Khuftan prayer in the mosque. We went to the fields to attend the call of the nature. Subhanullah was not available in the village. In fact his truck was damaged by flood in Torwarsak Buner and we had come to him in order to give consolation to him with regard to the damage caused to him. We were arrested on the metalled road by the police. The Police party also recovered from me Rs. 14,

000. On demand the Police refused to hand over the same to me on which altercation took place between us and the Police party. We told the Police party that we were guests of Subhanullah and our Datsun was also parked in.. the Hujra. We were arrested by the Police and our Datsun was later on brought to P.S. I am innocent and falsely charged." The same statement was adopted by Umar Said, the appellant No.l and Khanzada, appellant No.2 in their respective statements under section 342, Cr. P.C, however, Muhammad Rahman, the appellant No.3 has given a different version which is reproduced below:‑ "I am innocent and falsely charged. I am driver of the truck. The owner of the truck directed me to go to Nogram and to fetch straw (BOSARA), after spending the night in the said village. Near the link road my truck was stopped in the sandy Khuwar. Since I was all alone; I therefore, went in search of the help. In‑ the meanwhile, the Police party appeared. I sought their help. The S.H.O. directed .two constables to go and bring some tractor. The tractor was brought and the truck was released from the sand. The S.H.O. demanded the truck for fetching some BAJRI for his private use. I did not accept his demand. The S.H.O. then involved me in the present case. I was brought to the P.S. and I know nothing about the recovery. The Police has falsely involved me in the, present case:"

5. We have heard the learned counsel for the appellants and have perused the record. So far as the case of Muhammad Rahman, the appellant No.3 is concerned, there is sufficient evidence on the record to implicate him in the crime and it is established through the prosecution evidence that he was A carrying the recovered contraband material in the truck driven by him. The learned counsel for the appellants could not advance any point which might release him from this liability. His appeal against his conviction under Article 3 of the Order, therefore, merits dismissal.

6. However, the case of Umar Said and Khanzada stands on a different footing because, none of the two prosecution witnesses has named them in their evidence before the Court. They have not even mentioned ‑that two persons were sitting in the truck from where the opium was recovered.

7. The learned counsel for the State contended that there is a sentence in the statement of Khaista Rahman, P.W.2 where he says "I ordered the occupants of the truck to open the same for my satisfaction". According to the learned counsel, the word "occupants of the truck" means that there were more than one person occupying the truck. This sentence should be read in juxta position with the F.LR. where the names of all the three appellants are specifically mentioned.

8. We do not agree with the learned counsel. It is obvious that itself is not an evidence and the names of the accused persons or their identity I, must appear in the statements of the witnesses of the prosecution before the Court and the conviction cannot be based on the contents of an F.LR. only, unless they are supported by the evidence produced in Court. In the instant C case, the witnesses of the prosecution have mentioned Muhammad Rahman, out did not say any word about Umar Said arid Khanzada, therefore, this evidence is not sufficient to involve them in the offence.

9. Lastly the learned counsel for the appellants submitted that Muhammad Rahman, the appellant No.3 has been convicted in both Articles 4 and 3 of the Prohibition Order, 1979 whereas the offence under Article 3 also includes the offence of possessing contraband material and in Article 3 also the punishment of life imprisonment awarded to him is on the high side which should be reduced. We are inclined to accept this submission of the learned counsel. We have held in a number of cases that it is not proper to convict a person under both Articles 3 and 4 because importing, exporting, transporting or manufacturing or bottling or selling any intoxicant includes its possession also. The same view has been adopted in the case of Muhammad Ayub v. The State reported in 1992 SCMR 108‑111.

10. The upshot of the above discussion is that the conviction and sentence of Muhammad Rahman, the appellant No.3 under Article 4 of the Prohibition Order, 1979 is set aside and his conviction under Article 3 of the said order is maintained, however, the sentence of imprisonment awarded to him under that F Article is reduced from life imprisonment to 15 years' R.I. while other sentences awarded to him under this Article are maintained. With this i modification in his conviction and sentence, the appeal of Muhammad Rahman is dismissed.

11. However, the appeal of Umar Said, the appellant No.l and Khanzada, the appellant No.2 is allowed. Both of them shall be released forthwith if not required in any other case. N.H.Q./U‑55/S.