2007 PLP 3096 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Criminal Appeal No.554 of 2005 and Criminal Jail Appeal No.36 of 2006 as they-arise out of a common judgment.

2. Brief facts giving rise to the present appeals are that on 29-8-1999 Preventive Officer Customs, Special Squad received information that charas would be brought in Bus No.RIB-5999, therefore, the complainant Sultan Mahmood along with his subordinate staff reached PIB Bus Stop where the bus bearing No.RIB-5999 reached at 6.30 a.m. The bus was checked but nothing was found. The appellant Dost Muhammad was driver of the bus whereas the appellant Bilal was cleaner. As the information was positive, therefore, the bus and both the appellants were brought to the customs office where it was thoroughly checked and then it was found that there were secret cavities made in the body of the bus. From that 340 slabs of charas weighing 372 kilograms were recovered. Four slabs were drawn as sample and then the properties were sealed. The appellants 'were arrested and such mashirnama was prepared. The complainant lodged the F.I.R. The police after usual investigation challaned the appellant in the Court.

3. The learned Special Judge, C.N.S. Court-I, Karachi tried the appellants, convicted them for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced each of them to suffer imprisonment for life and tine of Rs.1.00 million or in default thereof to suffer R.I. for three years with benefit of section 382-B, Cr.P.C. under the impugned judgment dated 24-11-2005.

4. We have heard the Advocate for the appellant Bilal who also made appearance .and argued the case of the appellant Dost Muhammad as he was not represented by an advocate: We have also heard the appellant Dost Muhammad in person, Standing counsel for the State and perused the record of this case very carefully.

5. The learned advocate for the appellants has argued that the appellant Bilal was cleaner of the bus, therefore, he had no knowledge about the presence of the property; that the appellant Dost Muhammad was driver of the bus, who also did not know. about the presence of the property as there was another driver of the bus; that the samples were not produced in the Court; that the case has beets filed with mala fide intention; and that the property has been foisted upon the appellants as the -real culprits have beets let off by the police.

6. Conversely, the learned Standing Counsel has stated that the samples were produced before the Court as per statement of the complainant; that the Chemical Analyzer report is in positive; that both the witnesses have supported the prosecution case; and that the appellants had knowledge of the secret cavities where the charas was lying, therefore, the case has been proved against them.

7. We have given due consideration to the arguments, gone through the evidence with the assistance of learned advocate for the .appellants and found that the prosecution examined two witnesses viz. complainant Sultan Mahmood and mashir Azhar Hussain Khan. They stated that when the bus was checked at PIB Bus Stop nothing was secured. The appellant Dost Muhammad was driver of the bus and appellant Bilal was cleaner. They along with the bus were brought to the office. The bus was checked minutely, .secret cavities were discovered and from the secret cavities 372 kilograms of charas were secured. The samples were drawn and then the mashirnama was prepared after arresting the appellants. Both the witnesses were subjected to cross-examination but nothing came on record to discard their evidence. The prosecution also examined P.W. Faridullah Khan who investigated the case. He sent the property to Chemical Analyzer and the remaining property was destroyed under the orders of the Court in presence of the Judge. The samples were prepared before the destructions of the properties, which were produced in the Court. The samples prepared at the place of recovery were sent to the Chemical Analyzer whose report is in positive. Thus from the evidence it has been proved that 372 kilograms of charas were secured from the secret cavities of the bus.

8. The appellant Dost Muhammad was driver of the bus whereas the appellant Bilal was its cleaner. The learned Advocate for the appellants has argued that the appellants were not responsible and they had no knowledge of the property lying in the bus on the ground that the appellant Dost Muhammad was second driver whereas the appellant Bilal was cleaner. Similar point was considered in an unreported Criminal Jail. Appeal No.D-27 of 2001 (Nazar Hussain anal another v. The State) decided on 12-10-2006 by a Division Bench of this Court in which one of us namely Rahmat Hussain Jafferi, J was one of the members and author of the judgment. In the said case the liability of driver and cleaver was discussed. The relevant portion of the judgment reads as under:-- "The appellant Nazar Hussain being the driver of truck was having its possession. The property was secured from the secret cavity of -the truck. The co-accused Zulfiqar Ali was sitting beside the appellant. The prosecution claims that he was cleaner, therefore, apart from the driver appellant Nazar Hussain, the cleaner appellant Zulfiqar Ali -was also in possession of the charas. Now the question arises whether the property was in joint possession of both the appellants or it was in possession of the driver alone. Under section 6 of the Control of Narcotic Substances Act, 1997 possession of narcotic drugs is an offence, which is punishable under section 9 of the said Act. Section 6 reads as under:

"

6. Prohibition of possession of narcotic drugs etc.

No one shall .produce, manufacture, extract, prepare, possess, offer for sale, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the tune being in force." It will be noticed that in this section no condition or qualification has been made that the possession should be an exclusive possession. Therefore, the possession can be joint with two or more persons. The learned counsel for the appellants has argued that the possession simpliciter would not constitute an offence unless it is accompanied by mens rea or knowledge of the person. General rule is that there is presumption that mens rea, an evil intention or a knowledge of wrongfulness of the act is an essential ingredient in every offence. However, such presumption is liable to be displaced either by the words of the Constitution creating the offence or by the subject matter with which it deals. Normally it is true that the plain, ordinary, grammatical meaning of words of enactment affords the best guide but in case of this kind, the question is not what the words mean but where there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence. Various authorities show that it is generally necessary to go behind the words of the enactment and to take other factors into consideration. Thus in the context, it is permissible to look into the object of the legislature and find out whether, as a matter of fact, the Legislature intended anything to be proved except possession of the article as constituting the element of the offence. Even if it is assumed that the offence is absolute, the word "Possess" appearing in the section 6 connotes some sort of knowledge about the things possessed. So we have to determine what is meant by word "Possess" in the section. It is necessary to show that the accused had the article, which turned out to be narcotic drugs. In other words the prosecution must prove that the accused was knowingly in control of something in the circumstances, which showed that he was assenting to being in control of it. It is not- necessary to show in fact that he had actual knowledge of that which he had. Reference is invited to (1969) 2 A.C. 256 (H.L). In the above authority the house of .lords was concerned with a question whether the appellant there was in unauthorized possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart from the knowledge involved in the possession of the article. Lord Reid dissented. The majority decision would show that in a case of this nature it is not necessary 'for the prosecution to prove that the accused had consciousness of the guilty or the nature of the thing possessed and that it would be sufficient if it is proved that a person was knowingly in possession of the article. Lord Morris of Borth-y-Gest said: "Must the prosecution prove that an accused had a guilty mind? It is a declared purpose of the Act to prevent the misuse of drugs. If actual possession of particular substances which are regarded as potentially damaging is not controlled there will be danger of .the misuse of them by those who possess them. They might be harmfully used: they might be sold in most undesirable ways. Parliament set out therefore to `penalize' possession. That was a strong thing to do. Parliament proceeded to define and limit the classes and descriptions of people who alone could possess. All the indications are that save in the case of such persons. Parliament decided to forbid possession absolutely." Section 6 also prescribed certain exceptions under which narcotic substance can be possessed etc. after fulfilling condition mentioned thereunder. The question for consideration here is whether the appellant Nazar Hussain was in possession of charas being driver of -the truck. From the evidence it has been established beyond any shadow of doubt that the appellant Nazar Hussain was driving the truck as such he was incharge of the .vehicle, therefore, it was under his control and possession. Hence whatever articles lying in it would be under the control and possession of the appellant. The next question for consideration is as to how far the prosecution prove the possession of Narcotic Substance by the appellant. It is pointed out that inmost of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs, therefore, the Legislature have enacted a provision in the shape of section 29 in the Act, 1997 to shift the burden upon the- accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drugs, thus, the prosecution first has to discharge the duties of proving the allegation, once, it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:-- "

29. Presumption from possession of illicit articles.--In trials and until the contrary is proved, that the accused has committed an offence under this Act in respect of-- (a) Any narcotic drug, psychotropic substance or controlled substance; (b) Any, caimabis, coca or opium. poppy plant growing on any land. which he has cultivated; (c) Any apparatus specially designed or any group of utensils specially-adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or (d) Any material which have undergone any process towards the production or manufacture of nar cotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily." The above section expressly cast a duty upon the Court to presume in a trial under this. Act that -the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such a drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was note knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within` the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "Possess" connotes in the context of section 6, possession with knowledge, the legislature could not have intended to make mere physical custody without knowledge of offence, therefore, the possession must be conscious possession. Nevertheless, it is different thing to say that the prosecution should prove that the accused was knowingly in posses sion. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of the same or directly concerned with it. Unless, the accused proves by preponderance of probability that he did not knowingly or consciously possess the article without such proof the accused will be held guilty by virtue of section 29 of the Act, 1997. Reliance is placed on the case Inder Sain v. State of Punjab. (AIR 1973 SC 2309). In the case of Sherzada v. The State (1993 SCMR 149), the liability of .driver was also considered in view of provisions of section 27, P.P.C. and it was concluded as under: "The next point raised by the learned counsel was that it is provided in section 27, P.P,C. that when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned counsel is without farce on the face of it because section 29, P.P.C. is confined to the Pakistan Penal Code only, as the words "within the mean of this Code" appearing in that section clearly indicate. This section has not been made applicable to the' prohibition (Enforcement of Hadd) Order, 1979 as is evident from section 26 of that Order where .certain other provisions of .the P.P.C. have been made applicable." In the case of State v. Banda Gul (1993 SCMR 311), the question of burden of proof with reference to section 1.87 of the Customs Act was also taken into consideration and following conclusion was arrived at: "As stated above, in the opinion of the High Court, as the driver of truck slipped away, there was no evidence to attribute' knowledge of smuggling of 'the goods to the two co-accused. It appears to us that these observations have been made in oblivion to the provisions of sections 156(90) and 187 of the Customs Act, under which burden of proof lay on the accused. It was, therefore, for the latter to have proved that they were unaware that prohibited goods were being smuggled. " We may also refer case of Adil Ahmad (1991 SCMR 1951), wherein, in view of provisions of the Customs Act, it was observed that drivers and owners were both responsible. In the case of Rab Nawaz v. The State (PLD 1994 SC 858), the liability of driver was again considered and lenient view was taken, as they expressed their .ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to carrier. In the case of Nadir Khan v. State (1988 SCMR 1899) it has been observed that knowledge and II awareness would- be attributed to he Incharge of the vehicle. The relevant portion read as under: "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and. terminating at Karachi. They had the driving licenses also. As being person Incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the .vehicle and its contents." The appellant in the statement admitted his presence in the truck at the time of incident but took the plea that he took lift in the truck that was coming from Quetta side, which was driven by a Pathan, the police released the said Pathan and involved him in the case. He produced no evidence to prove such allegation. Further he also did not produce any .evidence to disprove the possession as required under section 29 of the Act, 1997. Therefore, he will be presumed to be guilty of the offence. From the above facts it is clear that the property was secured from the possession of appellant Nazar Hussain being. the driver of the truck. Therefore, he is involved in the case and the prosecution has proved the case against him. As regards the case of Zulfiqar Ali, the prosecution alleged that, he was sitting by the side of the appellant Nazar Hussain at the time when the truck was intercepted. The prosecution did not produce any evidence to show that. he was in joint possession or control of truck: or he had any concern or dealt with the property in any manner. But on the contrary the charas was concealed in secret cavity made in the truck that clearly show that it was hidden from all persons. There is no evidence to indicate that appellant knew that charas was concealed in the secret cavity or he had exclusive knowledge of the `said place so as to attract the provisions of Article 122 of Qanun-e-Shahadat Order, 1984. If the property was lying open within the view of the appellant or he knew the placement of property then the situation would have been quite different. In such a situation he was required to explain -his position, without such explanation his involvement in the case would have proved, however, such facts are not attracted in the present case, therefore, the appellant is not, required to explain anything. The prosecution has simply proved his presence in the truck. Therefore, mere presence of the appellant Zulfiqar Ali in the truck would not involve him in the case unless conspiracy or abetment of the offence is shown and. proved. Thus the case of appellant Zulfiqar Ali is distinguishable from the case of appellant Nazar Hussain. The prosecution has failed to prove the case against appellant Zulfiqar Ali. "

9. Following the above authority we are of the considered, view that the case against appellant. Dost Muhammad has been proved beyond any shadow of doubt whereas the case against Bilal has not been established, as the prosecution has failed to establish any connection of the appellant Bilal with the property or proved his abetment or conspiracy with the appellant Dost Muhammad.

10. Above are the reasons of our short order. dated 8-8-2007, by which we had disposed of the appeal in the following manner:

"For reasons to be recorded separately the conviction and sentence awarded to the appellant Bilal are set aside and the appellant is acquitted and set at liberty. He is present in custody, he should be released forthwith, if not required in any other custody case. The appeal No.554/2005 is allowed. As regards the case of the appellant Dost Muhammad, the prosecution has proved the case against him, therefore, the conviction and sentence awarded to the appellant Dost Muhammad are maintained. The appeal No.36/2006 is dismissed. " N.H.Q./B-19/K Order accordingly.