1993 PLP 229 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑A convict with very heavy sentence including life imprisonment in a case of narcotics has sought leave to appeal. The prosecution case amongst the other elements rested on his confession as well as the confession of one of his co‑accused. After going through the evidence and material against him particularly his own confession, learned counsel rightly stated that this being the Court of apex, it is no more possible or advisable for the petitioner not to come out again with truth ‑ earlier he had retracted his confession. He now stated that he was acting only as a carrier and that his confession was true. This plea gets sufficient support from the recorded confession. The petitioner had stated the details of the net in which he had been involved by very big dealers in narcotics. He was, according to his version, being paid Rs.1,000 for transporting, in a specially converted car, the narcotic stuff from the Frontier Regions to the interior particularly the Punjab. He named the two main culprits as Bakht‑e‑Rawan and one Nasir. On this change of attitude, mind, philosophy and direction by the accused/convict his learned counsel has sought reduction of sentence on the plea that the petitioner was a poor carrier though not an innocent one. He has relied upon Nadir Khan v. State 1988 SCMR 1899, Muhammad Rafique v. The State 1990 SCMR 602 and Bonifacio A. Burayag v. The State PLD 1991 SC

988. In this case of narcotics the petitioners who stand convicted with award of various sentences under Prohibition (Enforcement of Hadd) Order, 1979 have sought leave to appeal." Shakirullah P.W.2, according to learned counsel, has stated the main prosecution case. His deposition in chief reads as follows:‑‑ "I am marginal witness to recovery memo. Exh.P.R. vide which the I.O. took into his possession one Suzuki bearing No.2400/PRM alongwith registration copy in the name of Iftikhar Hussain resident of Rajjar Charsadda, a copy of driving licence in the name of Shah Wali accused and heroin stuff packed in the plastic and cloth envelop recovered from the seat of the aforementioned Suzuki driven by accused Shah Wali. The accused Hazrat Rehman was also seated in front of the Suzuki alongwith accused Shah Wali. On weighment the heroin came to be one kilo, out of the entire stuff the I.O. separated one gram from the stuff, sealed into a parcel whereas the remaining stuff was sealed into a different parcel. The heroin powder is Exh.P.l. The recovery memo. Exh.P.R. correctly bears my signatures which is also signed by Abdur Rehman the other marginal witness in my presence." Under cross‑examination the witness admitted that the heroin was recovered from the scat of the Suzuki and not from the technical possession of the accused. He, however, explained that at the time of recovery no other passenger except the accused was present therein. Learned counsel has contended that the prosecution has failed to prove exclusive possession of either of the two petitioners; that Hazrat Rehman who was sitting on the front passenger seat seems to be less responsible than Shah Wali because as driver of the Suzuki car the latter can be held to be responsible for what was recovered from his vehicle. Lastly, he argued for sympathy and mitigation in favour of Hazrat Rehman because he having fallen ill is now under treatment in a hospital. It is true that in a case like the present one it is almost impossible to determine as to who was the exclusive owner of the narcotic stuff; in case it did not belong jointly to both of them. Their version of total denial has been rejected throughout. Till this last stage despite having several opportunities of explaining the presence of the heroin on the Suzuki seat which was occupied by both of them and none else, neither of them came out with even a shred of truth to assist the Court. Under the present Constitutional and juridical set up in Pakistan the old notion so‑called of the entitlement of an accused person to tell a lie and divert the Court in wrong channels of inquiry, cannot be accepted ‑‑ particularly when the amended law provides abundant opportunity and scope for the accused to make deposition as a witness and also to state truth in that capacity. While expecting all benefits from the Court to follow the presumption of innocence till proved guilty, the accused cannot be absolved of his duty to help the Court to discover the truth ‑‑ if need be by appearing as a witness for himself and divulging the truth. If this culture of criminal litigation gets evolved in true spirit of the present legal Constitutional, juridical and Islamic enthoes, new avenues of protection of the accused's interest would open. This aspect can and would particularly be highlighted by the Courts in developing a new philosophy of sentencing. In this sphere the total denial by an accused who in reality participated in a crime often remains deprived of the legitimate benefits in the area of sentencing. For example, in this very case although the point has not been argued before us if either of the accused would have rightly and truly taken the plea of a carrier proving the other to be the owner the former could very easily have been granted benefit in the form of reduced sentence as compared to the latter. One very strong possibility is that both of them owned the narcotic stuff jointly; but if at all there was any possibility of one being the owner and the other a carrier, coming out with truth would in no case have been less beneficial to them than what they have now earned by telling lies at the trial. This new orientation and opportunity afforded to the accused persons by the change in the system has not been fully availed of by the accused side in the administration of criminal justice. The concerned quarters might pay some attention to the awareness and guidance procedures for the benefit of the persons/accused of criminal offences, who may file review applications ‑‑ formal or for suo motu exercise. After going through the evidence, with these remarks, we are unable to hold either that none of the two petitioners was in possession of the heroin nor that only one was in possession and the other had no concern with it. It was in their joint possession. And in the light of the foregoing discussion in all probability in their joint ownership. Hazrat Rehman can at best invoke prayers for his recovery from illness but no sympathy for what he has done. Accordingly, leave to appeal is refused." The aforereproduction of the other decision rendered today though seemingly containing narration of principles has found very practical application in the present case. The petitioner herein having come out with truth at this stage has also earned our gratitude. We have prima facie treated it as truth, as it gets sufficient additional support from independent circumstances including a confession of his co‑accused. In all probability depending upon the ultimate result of this case, this element of truth at apex, has laid down the foundations for granting leave to appeal on a substantial question of sentence and may be the foundation for a great success ultimately in appeal. If the same is accepted his life imprisonment can and might be reduced to about 7 years' R.I. as has been the case in some of the reported judgments. In the light of the foregoing discussion we consider it a fit case for grant of leave to appeal on the point of sentence. On same considerations which have weighed with us for granting leave to appeal to the petitioner we consider it appropriate and just to direct the State to seriously examine the question; whether, the acquittal of the main accused in this case should not be challenged before competent Court. The action taken in this behalf and the results whatever may be, shall be reported to this Court. M.BA./A‑971/S Order accordingly.