2008 PLP 1002 (MLD)

SYED YAHYA ZAHID GILLANI, J.

This judgment shall dispose of Criminal Appeal No.659 of 2007, Criminal Appeal No.654 of 2007 and Criminal Revision No.179 of 2007, all arising out of single judgment of Mr. Anwar Hussain, Judge Special Court (C.N.S.A.), Peshawar, dated 30-8-2007, in case No.18 of 2006, whereby he has convicted the convicts/appellants Roohullah and Zainullah under section 5 C.N.S.A. and sentenced them each to five years' R.I. along with the fine of Rs.1,00,000 or in default to suffer further six months' S.I. each. Vide the same judgment, he has also convicted Noor Muhammad convict/appellant under section-15 C.N.S.A. and sentenced him to two years' R.I. along with fine of Rs.30,000 or in default to suffer further one month S.I. The convicts/appellants Zainullah and Roohullah have jointly filed Criminal Appeal No. 659 of 2007, convict/appellant Noor Muhammad has preferred Criminal Appeal No.654 of 2007 separately, for their acquittal, while the State has filed Criminal Revision No.179 of 2007 for enhancement of their sentence.

2. According to facts of the case Inspector Sardar Abdul Waheed of Police Station ANF, Peshawar checked a luggage carrier vehicle No.B-0052/Peshawar, at Shabqadar Road, near Naguman Chowk, on 21-9-2005, at 11-00 a.m. Zainullah was on the driving seat and Roohulah was sitting on the adjacent front seat. The rear chamber of the vehicle was locked, which was opened with the key delivered by the driver. It was found loaded with sacks containing "crushed poppy pods" in huge quantity. When weighed, the quantity was found to be 1418 KGs. The FSL report about the samples communicated that the samples were of "crushed poppy heads as straws" containing opium alkaloids, which could be used to cause intoxication. Hence, challan was submitted for trial which also included the name of Noor Muhammad in addition to the aforesaid two persons, with the allegations that the recovered material was owned by him.

3. All the three accused were tried in the Special Court and convicted as mentioned above.

4. Jehangir, father of Roohullah convict/appellant, Karim, brother of Zainullah convict/appellant and Muhammad Ayub, father of Noor Muhammad convict/appellant, personally addressed the Court, because their lawyers were on strike and prayed for disposal of the case on merits, as they did not want to prolong it further. Salahuddin Khan D.A.-G. has been heard for the State. Record has been gone through.

5. As far as the case of Noor Muhammad convict/appellant is concerned, he was not arrested at the time of recovery of the "poppy pods". The two convicts/appellants Zainulalh and Roohullah, had allegedly, disclosed his name before police as their associate/owner of the material, but when they were produced before the Magistrate, they refused to offer judicial confession. This is also noteworthy that the complainant Sardar Abdul Waheed admitted in the trial Court on 3-10-2006 as P.W.2 that the poppy pods or other such material was not recovered from the person of Noor Muhammad, or on his pointation. Noor Muhammad has been convicted simply on the basis .of the allegations of the co-accused made before the Investigating Officer which he referred in his statement. This part of evidence is not admissible on three grounds. Firstly, that it is hearsay evidence. Secondly, it is part of a confession before Investigating Officer. Thirdly, it is statement of a co-accused only. We find no other evidence to connect Noor Muhammad convict/appellant with the crime and hold that his case is of no evidence and he has been convicted merely on the basis of presumptions, which is not permissible under the principles governing administration of criminal justice.

6. Moreover, P.W.2 Sardar Abdul Waheed has also admitted in his cross-examination that accused Roohullah had named Noor Muhammad, as son of Said Muhammad, and accordingly it was mentioned in his statement, but, the convict Noor Muhammad is son of Muhammad Ayub. On this score too, there is likelihood that the convict/appellant Noor Muhammad could, due to any error, have been substituted for another Noor Muhammad son of Said Muhammad, referred by Roohullah accused.

7. For the foregoing reasons, we hold that the case of Noor Muhammad is highly shrouded with doubts, he is not proved to be connected with this case and he could not be convicted on available record.

8. Now we turn to the case of Zainullah driver and his companion Roohullah, who were arrested on the spot, wherein a legal question has seriously floated up because both these convicts were charged under section 9-C C.N.S.A. on 19-5-2006, but they were convicted under section 5 C.N.S.A.

9. Learned trial Court has adopted the view that when both these convicts/appellants were arrested, at that time they were gathering opium poppy as envisaged in section 4 C.N.S.A. We do not find ourselves in agreement with this opinion of learned trial Court because putting huge quantity of "crushed poppy pods and straws" in a vehicle and taking it from one place to another, is a process, which does not fall within the meaning of "gather" used in section 4, C.N.S.A. The word gather has multiple dictionary meanings, which if listed, may go up to twenty. However, keeping in view of the principles of interpretation of law, the doctrine of `ejusdem generis' shall be attracted in this regard. The doctrine postulates that where there are general words, following particulars and specific words, the general words must be confined to things of the same kind as those specified.

10. In this regard reference can be made to page 659 of Mr. S.M. Zafar "understanding Statutes" the following paragraph is relevant: "For the ejusdem generis principle to apply there must be a sufficient indication of a category that can properly be described as a class or genus, even though not specified as such in the enactment. Furthermore the genus must be narrower than the literal meaning of the words it is said to regulate. The Customs Consolidation Act, 1876, (U.K.) S.43 reads:-- "The importation of arms, ammunition, gunpowder or any other goods may be prohibited. Although the italicized words are completely general, it is obvious that some limitation is intended. Otherwise why did not the drafter simply say `The importation of any other goods may be prohibited'? In A-G v. Brown (1920) it was held that the ejusdem generis principle applied to restrict the italicized words to objects of the same nature as the substantives listed in the generis string." This principle was applied in the case titled "Jumat-e-Islami Pakistan v. Federation of Pakistan" reported in PLD 2000 Supreme Court page 111 (paragraph 16) wherein the connection of the terms "illegal strike", "go slow" and "lock downs" was read ejusdem generis with the term "internal disturbance" in the context of "civil commotion" as envisaged by section 7(a) of the Anti-Terrorism Act, 1997. In this view of the matter, the word "gather" used in section 4 C.N.S.A. shall be understood qua the word "cultivate" used in the start of section 4 C.N.S.A. As such the meaning of the word "gather" shall be understood in relation to crop cultivation, and for that matter, its picking, harvesting, plucking,' and collection in the place of growth or nearby, thereto. The facts and circumstances of the case, in which the material in" question was recovered, was other than the gathering of cultivated crop in the aforesaid sense. Both the convicts/appellants Zainullah and Roohullah were thus wrongly held guilty under section 4 C.N.S.A. for conviction under section 5 C.N.S.A. We are thus of the considered view that the conviction of the convicts/appellants was in wrong premises and hence not sustainable.

12. Consequently, the arguments of learned A.A.-G. would prevail that due to wrong application of section of law, the case would be liable to remand for re-trial, as far as it pertains to. convicts/appellants Zainullah and Roohullah.

13. We, therefore, as a corollary to the above discussion, accept the appeal of convict/appellant Noor Muhammad and acquit him by extending him benefit of doubt. He be set at liberty at once, if not required in any other case.

14. The conviction and sentence of convicts/appellants Zainulah and Roohullah is also set aside on acceptance of their appeal and their case is remanded for retrial and fresh decision according to law. We leave it open for the trial Court to get determined the ratio of opium alkaloids in the material recovered in this case, about which the FSL report Exh. P.W. 2/4 is silent, because it may be helpful in future determination of relevant legal questions.

15. The revision petition of the State for enhancement of sentence stands dismissed for having become infructuous as the case is ordered as remanded. File be immediately sent to the trial Court for further proceedings in accordance with law. H.B.T./36/P Order accordingly.