1992 P Cr (PLP)

NAZIR AHMAD BHATTI, J.

Appellant, Muhammad Yaqub, was charged under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) for being in possession of 8,040 grams of raw opium (Katchi opium) by the learned Additional Sessions Judge, Rawalpindi, to which he pleaded not guilty and claimed trial. After the conclusion of the trial the learned Additional Sessions Judge found the appellant guilty of the offence under Article 4 of the Order and by convicting him for the said offence under the second proviso to the aforesaid Article sentenced him to undergo rigorous imprisonment for 15 years, to pay fine of Rs.15,000 or in default to further suffer rigorous imprisonment for 2 years and also awarded 30 stripes. At the time of hearing of the appeal submitted to this Court, the learned counsel for the appellant raised a plea before the learned Division Bench of this Court, placing reliance on the case of Shah Nawaz and another v. The State P L D 1986 FSC 242, that the intoxicant which was alleged to have been recovered from the possession of the appellant was opium and not raw opium and that the appellant could not be awarded sentence under the second proviso to Article 4 of the Order. On account of this plea having been raised by the learned counsel for the appellant before the learned Division Bench, a request was made in the following terms for placing the matter before the Full Court:-- "While hearing Criminal Appeal No.132/I of 1990, the learned counsel for the appellant referred to a case Shah Nawaz and another v. The State reported in P L D 1986 FSC

242. The important point in this case is interpretation of opium and raw opium. Raw opium has been introduced under Article 4 while in Article 3 of the Prohibition Order the word only opium is mentioned. The contention of the learned counsel is that whereas the appellant is found in possession of opium he can only be awarded the sentence of two years' imprisonment. In case raw opium more than one Kg. is recovered he could be sentenced to imprisonment for life and fine. We feel that this matter be placed before Full Court to consider the interpretation of opium and raw opium. The case be referred to Honourable Chief Justice for constituting Full Court."

2. The learned Chief Justice placed the matter before the Full Court _and notice was issued to Advocate-General, Punjab besides learned counsel for the parties. The Chemical Examiner, Rawalpindi was also summoned to explain the difference between opium and raw opium as appearing in the Order. Learned counsel for the parties, Assistant Advocate-General, Punjab and Mr.Iftikhar Hussain Chaudhry, counsel for the Federal Government were heard.

3. Although this Court had already noticed in the case of Shah and another v. The State that the use of the tow terms opium and raw opium indicated that these were two different substances yet it again appears necessary that the point referred to the Full Court be discussed in some detail. It has also become necessary to do so because many cases are coming up to this Court where accused are charged for being in possession of raw opium but the record of the Chemical Analyst discloses that the case property sent to him was opium.

4. The order has not provided any definition of the terms of opium or raw opium but the Schedule annexed thereto would indicate that the definition of opium as given in the Dangerous Drugs Act, 1930 (section 2 of the Dangerous Drugs Act. 193(:) has been adopted. The said definition has already been reproduced in the aforesaid 1986 judgment of this Court and it does not appear necessary to agaa reproduce the same here. However, the aforesaid definition will indicate that it is the definition of the term opium only and not raw opium .

5. It is interesting to note that the Multilingual List of Narcotic Drugs under International Control prepared by the United Nations in the year 1968 notes the difference between the two substances, and raw opium and opium have been defined as under:-- "Raw Opium" means the spontaneously coagulated juice obtained from the capsules of the Papver somniferum L., which has, only been submitted to the necessary manipulations of packing and transport, whatever its content of morphine." "Opium" means the coagulated juice of the opium poppy." The British Pharmacopoeia 1988, Volume I, also noted the difference between raw opium and prepared opium as under:-- Raw Opium "Opium is the latex obtained by incision from the untripe capsules of Papaver somniferum L., dried or partly dried by heat or spontaneous evaporation, and worked into somewhat irregularly-shaped masses. It is known in commerce as Indian opium. It contains not less than 9.5 per cent of morphine, calculated as anhydrous morphine." Powdered Opium "Prepared Opium is opium dried at a moderate temperature, reduced to a fine or moderately fine powder and adjusted by the addition of powdered Lactose suitably coloured with burnt sugar, or of powdered cocoa husk, to contain 9.5 to 10.5 per cent of morphine, calculated as anhydrous morphine."

6. Our attention was also invited to the definition of the term opium as oven in the Book Drug Abuse and the Law written by Gerald F. Uelmen, B.A., J.D. LL.M. and published in the year 1974 wherein at page 25 opium is defined as follows:- "Opium is a natural substance derived from one variety of the poppy plant. It contains over twenty different alkaloids with varying properties, constituting 25 per cent of opium by weight. A few of these

primarily morphine and codeine

are medically useful."

7. It shall thus be seen that opium and raw opium are two different substances. The common connotation of the term raw opium is that product which has not been refined or purified and it is in its natural extracted form whereas the substance `opium' is a purified and medicinally prepared substance.

8. It was contended before us that since raw opium was not a refined substance it was more dangerous to human life and for that reason the offences relating to raw opium were graver and entailed grimmer punishment and that apparently was the intention behind the second proviso to Article 4 of the Order.

9. Noting this difference between the two substances and the punishment for each of them it was advised in our 1986 judgment that Government may provide in the Order appropriate definition of the term raw opium so as to differentiate it from the term opium . Since no amendment has so far been made, the only alternative seems to be that the Investigating Officer should in each case ask the Chemical Analyst to give opinion whether the substance recovered from any accused was opium or raw opium. The trial Courts can also call the expert as a witness to get his opinion with regard to the category of the intoxicant to find out whether the substance seized from the accused was raw opium or opium and may then proceed accordingly.

10. The above opinion of the Full Court be placed before the learned Division Bench which may now be constituted to hear the appeal. N.H.O./657/FSC Order accordingly.