2010 PLP 27 (SCMR)

CH, IJAZ AHMED, J.

Petitioner seeks leave to appeal against the judgment dated 4-5-2009 wherein the appeal filed by the petitioner against his conviction was dismissed by the Lahore High Court, Rawalpindi Bench.

2. Detailed facts have already been mentioned in the impugned judgment in para.2 which are reproduced hereunder:

"The prosecution story as per complaint Exh.P.D. in is that on 8-9-2004 Mushtaq Hussain Excise official was present at Excise Check Post, Mullan Mansoor when he received spy information that heavy quantity of Charas was going to be smuggled from N.-W.F.P. through Mehran Suzuki car, whereupon Nakabandi was initiated at 9-00 a.m.; Mehran Suzuki car bearing Registration No.RIZ-2136 came from Peshawar side, the said car was stopped and was searched by Mushtaq Hussain Shah, Inspector, himself and 39 Kgs. of Charas and 3 Kgs. of opium was recovered from all the four doors of the car. Narcotics recovered from possession of the appellant was taken into possession after completing necessary formalities and case was got registered vide F.I.R. No.178 dated 8-9-2004 at Police Station Attock Khurd under section 9(c), C N.S.A., 1997." Having completed the legal formalities, the investigating agency submitted challan before the Judge, Special Court Anti-Narcotics, Attock (Additional Sessions Judge). The learned trial Court after recording the evidence of the prosecution and statements of the petitioner under section 342, Cr.P.C., sentenced the petitioner vide its judgment dated 20-9-2005 as under:

"Under section 9(c) of C.N.S.A, 1997 life imprisonment with a fine of Rs.3,00,000; in case of default in payment of fine the petitioner has to further undergo six months' R.I. The benefit of section 382-B, Cr.P.C. was also extended to the petitioner/ convict." Petitioner being aggrieved filed Criminal Appeal No.259 of 2005 in the Lahore ' High Court, Rawalpindi Bench, Rawalpindi, which was dismissed vide impugned judgment. Hence the present petition.

3. The learned counsel for the petitioner submits as under:-. (i) The trial Court while recording the statement of Muhammad Altaf, Constable, in his cross-examination observed as under:- "At this stage learned counsel for defence has pointed out one of packets from which sample Charas was not taken. I have observed the same and found the objection and point raised by defence side has substance. Similarly some other packets were also observed with the same condition." (ii) The recovery was effected from the petitioner in violation of section 103, Cr.P.C. (iii) The petitioner had taken a defence in his statement recorded under section 342 which is highly probable and reliable but the Courts below had erred in law to discard the defence plea without proper application of mind. (iv) The Courts below had drawn wrong conclusion against the petitioner by misreading and non-reading of-the evidence on record.

4. We have given our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record. P.W.4 Mushtaq Hussain stated in his cross-examination with regard to the sample secured by him at the time of recovering the opium from the petitioner which is as under:

"I took sample of Charas from every slab of each packet. I have separated opium for sample purposes from each packet but not from every cake present in each packet. The witness has answered that as packets are now opened and I have come to know that there are three cakes in each packet of opium." The learned trial Court after appreciation of evidence had given finding of fact against the petitioner as the prosecution had proved the recovery of 39 Kgs. of Charas and 3 Kgs. of opium from the conscious possession of the petitioner/convict. Witnesses appeared against him had no previous enmity against the petitioner. Recovery witnesses remained consistent so far as the time, place and mode of recovery is concerned subject to lengthy cross-examination by the defence. The trial Court had also rejected defence version after considering each and every piece of evidence on record before recording conviction against the petitioner. The learned High Court had also re-examined the evidence on record and rejected the pleas of the petitioner with cogent reasons and had also observed that violation of 103, Cr.P.C. has no consequences in view of exclusion of the said provision of Criminal Procedure Code by section 25 of the Control of Narcotic Substances Act, 1997 and the law laid down by this Court in Mirza Shah's case 1992 SCMR 1475. It is a settled principle of law that mere fact that prosecution witnesses belonged to Anti-Narcotics Force, by itself cannot be considered a valid reason to discard their statements. See Naseer Ahmed's case 2004 SCMR 1361 and Riaz Ahmad's case 2004 SCMR

988. It is an admitted fact that aforesaid Charas and opium was recovered from the four doors of the car which was being driven by the petitioner coupled with the fact that only the petitioner was present in the car. Therefore, Courts below were justified to give finding against the petitioner qua his guilt. Findings of the Courts below are in consonance with the law laid down by this Court in various pronouncements. See:

(i) Muhammad Shah's case PLD 1984 SC 278, (ii) Said Shah's case PLD 1987 SC 288, (iii) Nadir Khan's case 1988 SCMR 1899, (iv) Rab Nawaz's case PLD 1994 SC 858, (v) Ikram Hussain's case 2005 SCMR 1487. In view of the law laid down by this Court in the aforesaid judgments we are of the opinion that the driver cannot be absolved from the responsibility if the contraband items are being transported in the doors of the vehicles being driven by him. It is now settled proposition of law by flex of time that in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of the cases. The Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding procedural defects as observed by this Court in Munawar Hussain's case 1993 SCMR

785. The reliance of the learned counsel of the petitioner qua the observation from the cross-examination of P.W.3 Muhammad Altaf, constable, which is reproduced hereinabove is not valid to be observed by the trial Court at that stage. Even otherwise the observation has no validity in view of the aforesaid portion reproduced from the cross-examination of P.W.4 Mushtaq Hussain who had recovered the aforesaid Charas and opium from the petitioner. It is pertinent to mention here that Chemical Examiner reports regarding Charas and opium are sufficient to prove that the substance recovered from the petitioner is Charas which can be used to cause intoxication. The prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms, of section 29(d) of Control of Narcotic Substances Act, 1997. See Ikram Hussain's case 2005 SCMR 1487. The learned trial Court as well as learned High Court after examining each and every piece of evidence on record had rendered concurrent conclusions of guilt of the petitioner. The conclusions of the Courts below are in consonance with the law laid down by this Court in Muhammad Arshad's case 2007 SCMR 1378 and Mst. Taj Bibi's case 2007 SCMR 1591. Prosecution version and defence version are put in juxtaposition then prosecution version appears to be genuine and based on common sense. The Courts below have also decided the case against the petitioner even after considering his plea and same is also in consonance with the law laid down by this Court in Wajid Khan's case 2007 SCMR 1435. We may observe that the Courts cannot expect in the case of smuggling of narcotics, the evidence of the nature, which is normally available in an ordinary criminal case as the persons who indulge in such type of notorious activities are more organized and influential having deep rooted contacts within the country and outside the country because they have connections all over the world, therefore, they are always in position to manage to cause dents in the case and evidence of the prosecution. The standard of proving the case under special law is different in case the special law is read as a whole while comparing with the general law. It is a settled principle of law that special law excludes the general law as law laid down by this Court in Ziaur Rehmans' case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC

473. Acts like this which not only bring disgrace to the country's name but also are deteriorative to the society and atrophic to the youth who develop and carve the future of the country and mould the destiny of the Nation. Such illegal and indecent activities are converting our younger generation into drug addicts, giving birth to a never ending cycle of enormities which not only cripples a society but also ruins the destiny of so many families in just a blink of an eye. Therefore, the Courts approach should be dynamic and should overlook, the technicalities in the large interest of the country and public welfare. Mere making of harsh laws does not relinquish our society from such evils. We should have inherited our ideas, culture and morals from the character of the courageous and self-sacrificing Founder of Pakistan but unfortunately we have fell prey to the social evils like lust and greed. We have preferred our vested interests over the ideologies of the Founder of the Pakistan and nations who do not respect the principles and ideologies of their Founders, they never prosper and flourish rather end up in turmoil and shambles, politically, economically and socially. We have separated ourselves from the principles of 'Quaid-e-Azam like "Unity, Faith and Discipline" and "work, work and work". We need to adopt these principles in true letter and spirit to stand among the league of civilized, cultured, law abiding and developed nations. Our Constitution is based on the concept of welfare, State wherein the principle of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, should fully be observed. The mandate of the Constitution envisages that every person has to obey the Constitution as it demands loyalty and obedience. Constitution is a social binding contract between the State and the people. Every organ of the State should act within its parameters as defined by the Constitution without meddling into the matters of the other organs. Media who acts as a fourth and equally important pillar of the State, needs to highlight the character of the Founder of Pakistan so that people can adopt his teachings to get rid of evils like greed and lust and toil for the welfare of the State and people of Pakistan. Media, in today's modern and technologically advance world, plays a very dynamic and important role in motivating people and especially younger generation. It is the duty of the society to motivate youth so that they do not indulge in such indecent activities and rather flourish in the field of study and acquire knowledge to meet ever increasing challenges of today's highly competitive world. Media can play a handy role in helping youth ring laurels to the country. At the same time helping the society to clean up the mess by highlighting the dangerous effects of drugs and identifying the people involved in such criminal acts.

5. The object of the Act (C.N.S.A 1997) is to control the production, transfer and trading of narcotics. It is settled law that preamble and object is always be kept in mind by interpreting the provisions of the Act on the well-known principle that preamble is key to understand the Act. According to the Chief Justice Dyer, preamble is the key to open the minds of the makers of the Act, and the mischief of which they intend to redress. See Stowel v. Lord Zouch (1965) I Plowd. Certain provisions of the Act are excluding the provisions of the general law such as section 25 excludes section 103 of the Criminal Procedure Code and section 29 of the Act also provides that presumption is of possession of illicit articles unless the person prescribed rebuts such presumption. Similarly section 51 of the Act deals with restriction for grant of bail in respect of certain offences. It is settled principle of law that Act must be read as an organic whole while reading the Act in question as an organic whole then it casts heavy duty upon the Courts to examine the evidence on record and decide the cases keeping in view the object and mandate of the provision of the said Act. Both the Courts below have decided the case against the petitioner. The learned counsel has failed to point out any piece of evidence which was misread by the Courts below or decided the case against the petitioner in violation of any provision of law or any principle laid down by this Court. Even otherwise the learned counsel has failed to raise any substantial question of law.

6. In view of what has been discussed above the petition has no merit and the same is dismissed. Leave refused. (Sd.) Ch. Ijaz Ahmed, J. I agree, but have added a separate note of my reasons for doing so. (Sd.) Jawwad S. Khawaja, J. JAWWAD S. KHAWAJA, J.

I have had the benefit of going through the judgment delivered by my learned brother Ch. Ijaz Ahmed, J. I concur respectfully with the 'conclusion and would dismiss the petition filed by Ismaeel (petitioner/convict). I would, however, do so on the basis of the reasons recorded in this note.

8. With the greatest respect to my learned brother, I would be very cautious in the wording of the judgment which is proposed to be approved for reporting and is likely, therefore, to be cited as precedent before Courts in Pakistan trying criminal cases. With this in mind, I would be loath to subscribe to any generalization which potentially can result in blurring the well-defined contours of criminal jurisprudence established in our jurisdictions.

9. In the context of the present case, I am clear that the prosecution has been able to prove its case against the petitioner. The observation which has been made by the learned trial Court and which has been reproduced in paragraphs 3 of the judgment of my learned brother, does not constitute evidence. This is particularly so in the light of the testimony of the P.Ws. including Mushtaq Hussain Shah P.W.4, through which it has been proved that samples were drawn from each packet of Charas and opium recovered from hidden cavities in the doors of the vehicle which was used by the petitioner for transporting these narcotic substances. The petitioner has not raised any grievance through application either before the learned trial Court or the Appellate Court nor indeed has it been urged before us that the petitioner had sought permission to lead evidence to the effect that samples were not drawn from each packet or that the contents of such packets did not contain Charas and opium respectively. In the absence of any such grievance having been agitated or any attempt having been made to adduce evidence as aforesaid, it is not possible to rely on simple observation made by the learned trial Court while recording the testimony of the P.W. Muhammad Altaf.

10. In addition to the above, I would be hesitant in disregarding technicalities through any blanket or generalized statement. Learned counsel appearing for the petitioner in this case did not advert to any procedural or technical requirement which may have been violated by the prosecution or which may have been urged but was overlooked by the learned trial and Appellate Courts. Since no breach of any procedural rule or legal principle has been brought to our notice, I will, with the utmost respect to my brother, refrain from subscribing to the observation made in the proposed judgment that "in cases of transportation or possession of narcotics, technicalities of a procedural nature or otherwise should be overlooked in the larger interest of the country".

11. I would also like to add that the "interest of the country" is best served when the executive and the judicial machinery of the State while administering penal statues, adhere to the law. This is particularly so where the fundamental rights of a citizen such as his liberty, are involved. The right of personal liberty of a citizen is enshrined in Article 9 of the Constitution and has been jealously guarded by the Courts in Pakistan. If the petitioner is 'to be deprived of his liberty, this should only happen in accordance with law. It may well be that in a particular case, a procedural rule may be violated. I would, however, leave a decision as to the effect of non-adherence to procedural or technical rules to a later day and. in the specific circumstances of a particular case requiring adjudication of such matter. Since, this question does not arise in the present case, I would avoid comment on the same lest it create uncertainty for litigants, State functionaries and the Courts of the country.?????

12. For the same reasons 'which have been noted above, I would eschew the enunciation of moral principles, as a relevant factor in deciding cases. M.H./I-17/SC????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.