2008 PLP 991 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment, dated 27-4-2005 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal No.100 of 2003, filed by the present appellants, against their conviction and sentence awarded to them under section 9(c) of Control of Narcotic Substances Act, 1997, was dismissed.

2. The brief facts of the case in small compass are that a police party headed by Shakeel Ahmed, S.-I., while present at Excise Check Post, Mulla Mansoor, on receiving spy information that a Vehicle bearing No.LOU-3233, Mehran Car, gray colour in which the appellants were carrying huge quantity of heroin was proceeding towards Punjab, started surveillance of the vehicle and at about 1-10 p.m., a car coming from Peshawar side being driven by Amanat Ali, appellant, while Muhammad Latif and Zafar Iqbal, appellants were found sitting on the front and rear seat of the car, was stopped at the check post and on search of the car, the raiding party recovered six small and two big packets of heroin weighing 2-1/2 Kgs. kept in secret cavity made in the dashboard of the car. The raiding party having taken a small quantity from each packet prepared a sealed parcel of one gram .of heroin, which was sent to Chemical Examiner for analysis whereas remaining heroin was taken into possession in a separate parcel as case property. The accused were taken into custody and on completion of formal investigation were challaned to face the trial before the Special Court established under Control of Narcotic Substances Act, 1997.

3. The prosecution on denial of the charge by the appellant, examined five witnesses namely Hazer Khan, A.S.-I. (P.W.1), Muhammad Nawaz No.176-C, (P.W.2), Anjum Naheed No.348-C (P.W.3), Raja Shakeel Ahmad, S.-I. (P.W.4) and Muhammad Nawaz (P.W.2). The sealed parcels containing the heroin were kept in Malkhana in safe custody and subsequently, one sealed parcel was sent to the office of Chemical Examiner for expert opinion. Anjum Naheed (P.W.3) and Raja Shakeel Ahmad, S.-I. (P.W.4) repeating the story of F.I.R., supported the prosecution version and also corroborated each other on each material point. The accused in their statements under section 342, Cr.P.C., denied the allegations but neither they appeared in the witness-box in terms of section 340(2), Cr.P.C. nor have produced any evidence in their defence. The learned trial Judge on conclusion of trial, having found the appellants guilty of the charge, convicted them under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to R.I. for 10 years each with fine of Rs.25,000 each or in default thereof to undergo S.I. for six months each. The appellants were however, allowed the benefit of section 382-B, Cr.P.C. The appeal filed by the appellants in the High Court against the conviction and sentence awarded to them by the trial Court was dismissed vide impugned judgment. Leave was granted in the present appeal vide order, dated 10-11-2005 as under:

"Learned counsel for the petitioners contended that:

(i) Shakil Ahmad, S.-I. the complainant has investigated the case himself, thus he being interested in the prosecution should not have acted as Investigating Officer. (ii) Out of 2-1/2 Kilograms of heroin kept in eight packets, only one gram was sent for Chemical analysis. (iii) All the three petitioners were said to be sitting inside the car, out of which the said heroin was recovered from its secret cavities. On search of the said car an open transfer letter was also secured, as such, none of them were owners of the car, therefore, they had no exclusive knowledge about the presence of heroin. In support of his contentions, he also placed reliance on the cases of Zahoor Ahmad Awan and another v. The State 1997 SCMR 543 and Taj Wali and 6 others v. The State PLD 2005 Kar. 128. (2) Leave to appeal is granted, inter alia, to consider the above contentions for safe administration of criminal justice.

4. Learned counsel for the appellants has contended that the trial Court as well as the High Court have not properly appreciated the evidence and in consequence thereto a wrong conclusion qua the guilt of appellant was drawn. It is submitted that the defence plea that vehicle was owned by Amanat Ali which was being run by him as taxi and his co-accused, having hired the taxi were travelling in it as passengers duly supported by the prosecution evidence was proved on record beyond doubt, therefore, the case of Amanat Ali was distinguishable to that of his co-accused, who being stranger would have no, knowledge of the heroin being kept by Amanat Ali in the secret cavities of the taxi car. He submitted that mere presence of a person as passenger in the taxi car is not as such an evidence of his participation in crime. The learned counsel placing reliance on the case of Zahoor Ahmed Awan and another v. The State 1997 SCMR 543 submitted that one gram of heroin out of 2-1/2 Kgs. was too less a quantity to ascertain that all the eight packets contained heroin.

5. The prosecution case is that Amanat Ali, appellant, was driving the vehicle, the ownership of which was also claimed by him on the basis of open transfer letter in his possession. The fact that vehicle was being run by him as taxi, was neither contradicted nor any evidence was brought on record to suggest that co-accused of Amanat Ali being his associate in the crime had the knowledge of heroin being kept in the secret cavities of the vehicle. The careful examination of evidence would suggest that in the light of circumstances leading to the occurrence, the prosecution has net been able to prove the charge against Muhammad Latif and Zafar Iqbal beyond reasonable doubt. There was no evidence that they being companions of Amanat Ali in the crime have the conscious knowledge of heroin in the taxi car to treat them in joint possession of recovered heroin. In view of the doubt arising in the prosecution case to the extent of their participation in the crime, we while giving them the benefit of doubt acquit them from the charge and direct that if they are not required in any other case, they shall be forthwith released from jail.

6. The case of Amanat Ali, appellant, being driver and owner of vehicle, would stand on different footing as he being in the exclusive control of the vehicle in which heroin was kept in secret cavities, would be deemed to have been in the exclusive possession of the heroin recovered from the car, therefore, the charge against him stood proved beyond doubt. However, according to the prosecution only a small quantity of one gram of heroin was taken from all the eight packets in a separate sealed parcel for chemical examination, therefore, notwithstanding the fact that the report of the Chemical Examiner was positive, the crucial question for determination would be as to whether a quantity of one gram would be sufficient to ascertain the origin of the contents of all the eight packets. In the light of facts of the case apparently, the claim of the raiding party to have taken small quantity of heroin from each packet for chemical analysis appears to be misguiding rather the circumstances would show that one gram of heroin was taken from one packet and in that, report would be relevant only to that extent. Be that as it may, in the normal situation it was essential for the raiding party to prepare a separate parcel of at least one gram from each packet for chemical analysis and same having been not done a serious doubt, would arise in respect of the origin of contents of all the packets. In consequence thereto, it would not be safe to bring the case within the ambit of section 9(c) of Control of Narcotic Substances Act, 1997 for the purpose of conviction and sentence rather a legitimate presumption would be that report of Chemical Examiner would be read only to the extent of one packet of the approximate quantity of less than one Kg. and in that the case would squarely fall within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997, therefore, the conviction of Amanat Ali, appellant under section 9(c) of Control of Narcotic Substances Act, 1997 was bad in law. Learned counsel for the appellant has submitted that the appellant remained in jail throughout from the date of his arrest and has almost completed a period of about five years of his sentence, which may be considered sufficient sentence under section 9(b) of C.N.S. Act, 1997. In view of the position explained by the learned counsel for the appellant, we while converting the conviction of the appellant under section 9(c) of Control of Narcotic Substances Act, 1997, to section 9(b) of the said Act reduced his sentence equal to the period already undergone by him with fine imposed upon him by the trial Court. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C. and shall be released from jail forthwith if not required in any other case. This appeal with the above modification in the conviction and sentence, stands partly allowed. M.B.A./A-8/SC Appeal partly allowed.