1992 PLP 1451 (SCMR)

Rehmat v. State P L D 1977 SC 515 ref. Azizullah Shaikh, Senior Advocate Supreme Court for Appellant. Hafiz S.A. Rehman, Advocate Supreme Court for the State. Date of hearing: 24th August, 1991 ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the federal Shariat Court dated 24‑4‑1991.

2. The facts, in brief, are that on 24‑5‑1988 at about 4/5 p.m. Ghulam Muhammad Shaikh, F.I.O. Narcotics Control Board, received a spy information that the appellant and his two companions were bringing huge quantity of heroin in Toyota Car No.188‑

782. The staff of the Narcotics Control Board apprehended the car in which on the driver's seat Torbaz Khan was sitting. The appellant was occupying a seat near the driver and Abdul Hakeem was sitting on the rear seat of the car. Under the seat of the driver, a bag of one kilogram heroin was recovered. On the direction of the staff of the Narcotics Control Board, the driver opened the boot of the car and four gunny bags were recovered. Each bag contained 25 bags and each bag contained one kilogram of heroin. The total recovery was 100 kilograms of heroin. The first information report (Exh.P.4) was registered on the same day at the North Nazimabad Police Station on the report of Ghulam Muhammad Shaikh.

3. At the trial, the prosecution examined four witnesses, namely, P.W.1. Manzoor Ali Rana, Group Leader, two Mashirs, Muhammad Iqbal (P.W.2) and Muhammad Sharif (P.W.3) and the complainant Ghulam Muhammad Shaikh (P.W.4). The appellant denied the charge. His plea was that he was arrested on 23‑5‑1988 from the neighbourhood of Doctor's clinic in Kharadar. In his statement under section 340(2), Cr. P.C. he stated that his brother Hadayatullah Shah had contested the election of local bodies in Karachi. The Pathans who were opposing his brother contacted Turbaz Khan who involved him in this case. Here, it may be pointed out that Turbaz Khan was not challaned as an accused person and he was released by the Investigating Officer under section 165, Cr.P.C. However, during the trial, the learned Magistrate arrayed him as an accused person and non‑bailable warrants were issued against him but he absconded and could not be arrested therefore the case could not proceed against him. The learned trial Court by means of order, dated 21‑8‑1990 convicted the appellant and the co‑accused Abdul Hakeem under section 3/26 of the Prohibition (Enforcement of Hadd) Order, 1979, read with section 34/35, P.P.C. and awarded each of the accused sentence of rigorous imprisonment for 10 years with 15 stripes and fine of Rs. one lac each. It was further directed that in case of default in the payment of fine, they shall have to undergo further R.I. for two years.

4. The appellant challenged this order by way of an appeal. Abdul Hakeem's petition was admitted as a criminal appeal. Both the convicts were given notice for the enhancement of their sentence. After analysing the facts of the case, the appeals of Abdul Hakeem and Noorul Haq were dismissed by the impugned judgment and their sentence was enhanced to life imprisonment.

5. Learned counsel for the appellant submitted that there is no evidence to connect the appellant with the commission of the offence and he was convicted mainly on the ground that the plea taken by him in defence was not established by him. The co‑accused Abdul Hakeem has not filed any appeal in this Court.

6. The case against Abdul Hakeem rests on the positive report in respect of the sample Exh.P.6, the receipt regarding the payment of Rs.76,000 leaving a balance of Rs.10,000 made by him in respect of the Toyota car from which the heroin was recovered. Exh.P.7 the delivery acceptance letter bears the signature and thumb‑impression of the co‑accused Abdul Hakeem in token of his having taken the delivery of the car from Rasheed Motors, MA. Jinnah Road, Karachi. These facts were considered sufficient for the conviction of the co‑accused Abdul Hakeem. So far as the present appellant is concerned, there is the evidence that he was occupying the front seat of the car. The heroin was not recovered from the seat of the appellant. The prosecution has not led any evidence to prove that the appellant had conscious knowledge of the fact that the car contained the heroin. No connection of the appellant was shown with the heroin. There is also no positive evidence that the appellant in complicity with Abdul Hakeem was transporting the heroin. A person who is charged with a criminal offence is to be saddled with the liability only if the prosecution has established its case against the accused beyond all reasonable doubt. A plea taken by an accused may be false but he cannot be convicted on such false plea. The case of the appellant at the trial was that he was arrested a day prior to the recovery of heroin. He has miserably failed to prove this fact. The evidence on record fully establishes that the appellant was travelling in the Toyota car but in spite of his failure to prove his innocence, we have to see whether the prosecution has been able to establish its case against the appellant. The presumption of innocence of an accused is displaced by the prosecution if it prima facie establishes its case against the accused and to discharge the burden if an accused raises a plea in support of his defence to controvert the prosecution allegation and he fails to prove such plea, then presumption under section 106 of the Evidence Act or section 122 of the Qanun‑e‑Shahadat would be attracted which prescribes that "if a fact is especially within the knowledge of any person the burden of proving that fact is upon him." In the present case the appellant's dominion over the property or his connection with the possession has not been established by the prosecution beyond all reasonable doubt. In this case, the driver of the car was released and the owner of the car was convicted. The owner has not filed any appeal. No presumption arises against the appellant. He cannot be convicted on false defence and the prosecution has to succeed on its own case. In Rehmat v. State P L D 1977 SC 515 at page 527 it has been observed as follows:‑‑ "Needless to emphasise that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. 1t is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence." As stated above, the case against the appellant has not been I established beyond all reasonable doubt. The appellant is entitled to the benefit of doubt. The appeal is, therefore, accepted. The conviction and sentence recorded against the appellant is set aside. He shall be released I forthwith if not required in any other matter. N.H.Q./N‑305/S Appeal accepted.