1985 PLP 1460 (SCMR)

NASIM HASAN SHAH, J.‑‑The relevant facts are that Nazar Hussain, Assistant Excise & Taxation Officer, reported to the police that while he alongwith his staff were checking the vehicles at Check Post Mullan Mansoor he stopped and checked Car No. PRE/5848. Bukhtawar Gul (petitioner No.l) was driving the said car while Misr Khan (petitioner No. 2) was sitting with him. On checking the car, Charas weighing 28.800 kilograms was recovered from the front door: of the car. The petitioners were, accordingly, apprehended and challaned under Article 3/4 of Prohibition (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979). They were later tried by Mr. Zamurad Khan, M.I.C. Attock and, vide judgment, dated 21‑8‑1984, the learned Court convicted them under Article 3 of the Ordinance VI of 1979 and sentenced them to three years' R.I. each with ten stripes and a fine of Rs.2,000 each or in default to undergo four months' further R.I. The Federal Shariat Court disallowed their appeal vide judgment, dated 14‑1‑1985. Hence this petition for leave to appeal. The main contention raised by Sh. Zamir Hussain, learned counsel for the petitioner, in support of this petition before us was that the narcotics recovered were even according to the prosecution, concealed in the doors of the car and that the said vehicle belonged to somebody else. Petitioner No.l was merely its driver knowing nothing of what was concealed in the car; while petitioner No. 2 was also not connected with the owner of the car and was merely because he wanted a lift and avail of a free journey upto Rawalpindi. He also knew nothing with regard to the contents concealed in the doors of the car. The learned counsel further submitted that although the documents of the car such as the registration book was available and was actually taken into possession wherein the name of the owner was duly mentioned; neither the owner was tried for the offence nor even associated with the investigation. It is submitted that in the absence of the owner's version neither the 'knowledge' of the existence of the articles nor its possession could be attributed to the petitioners. He argued that the Courts below had not attended to this legal aspect. We, however, note that the Federal Shariat Court had, in fact, attended to this aspect and dealt with this aspect in para. 10 of its judgment as follows:‑‑ "It is suggested by the defence that the owner of the car may be responsible for the said Charas but was let off after getting money from him, If there had been any substance in the defence plea the conduct of the accused persons should have been different. They should have raised hue and cry before the higher authorities at the earliest. If the departmental authorities were not listening to their grievance, the accused could easily approach the Martial Law Authorities. It is not denied that in this age of awakening even most ordinary citizen can approach the Highest Authority in the state. After taking into consideration the relevant facts and circumstances of the case I find no merit in this plea. " We would add that as not less than 28 kilograms of Charas was concealed in the outer doors of the vehicle, which meant that each door had 14 kilograms of Charas concealed in it, which doors the petitioners while getting in and out of the car must be opening and closing and, therefore, in the circumstances of the case it is impossible to believe that they would not have knowledge about the presence of the prohibited goods being concealed therein. We are satisfied that not only did they have the guilty knowledge but were associates in the crime. We find no force in this petition which is, accordingly, dismissed hereby. M. I. Petition dismissed.