1984 P Cr (PLP)

Date of hearing: 29th February, 1,

984. Ghulam Hazrat and Khan Wazir stood trial in the Court of Special Judge (Central), Customs and Taxation, N. W. F. P. on a charge under clauses (8) and (89) of section 156 (1) of the Customs Act, 1969. They were allegedly smuggling 1004 Kgs. of contraband opium.

2. At the trial when both the accused were charged, Khan Wazir accused pleaded guilty to the charge, but Ghulam Hazrat accused did not plead guilty and claimed trial. On the conclusion of the trial, the learned Special Judge, finding both the accused guilty of committing the offence, convicted and sentenced both of them to suffer R. I. for four years and a fine of Rs. 1,00,000 (Rs. one hundred thousand) each, or in default to suffer R. I. for one and a half years. The accused were, however, given the benefit of section 382-B, Cr. P. C.

3. Against their conviction and sentence both the accused have appealed.

4. The prosecution case at the trial was that on 5th April, 1983 Customs Mobile Squad, Nowshera was on routine checking of vehicular traffic plying on G. T. Road. At about 0900 hours, Mr. Arif Durrani, Inspector, Customs Mobile Squad intercepted Bus No. T. R. P. 794 (K. L. 4281.) driven by Ghulam Hazrat, accused-appellant. Khan Wazir, accused-appellant, was cleaner of the Bus the search of the Bus led to the detection of some secret cavities containing narcotics. Since on the spot there were no arrangements to open up the secret cavities specially designed to carry the narcotics, the Bus was driven and both the accused brought to the office of the Customs Mobile Squad at Nowshera, where cavities were opened and thorough search was made which led to the recovery of 1,004 Kgs. of contraband opium. Since the accused could not produce documents to show lawful possession of the contraband opium, they were arrested and the contraband opium alongwith the Bus taken into possession by the Mobile Squad. Representative samples were taken from the seized opium for chemical examination. After completion of the formalities. the incident Report Exh. P. A./1 was drafted by Haji Mir Ahmad Khan (P. W.) and sent to Police Station, Akora Khattak for registration of the case, which was accordingly registered, vide F. I. R. Exh. P. A. On the conclusion of the investigation, both the accused were sent up to the Court of the learned Special Judge where they were tried, convicted and sentenced as aforesaid.

5. In order to prove its case, the prosecution, produced at the trial Haji Mir Ahmad (P. W. 1), Mr. Arif Durrani (P. W. 2), Mr. Wazir Ali (P. W. 3) and Mr. Ghulam Asghar (P. W. 4) as prosecution witnesses. It has come in the statement of Haji Mir Abroad (P. W. 1), Mr. Arif Durrani (P. W. 2) and Mr. Wazir Ali (P. W. 3) that the Bus which at the relevant time was being driven by Ghulam Hazrat, accused-appellant, was intercepted by Mr. Arif Durrani (P. W. 2) on G. T. Road, Khan Wazir, accused-appellant, was also found travelling in the Bus as cleaner thereof. On search the Bus was found having secret cavities containing opium. It was accordingly driven to the office of the Customs Mobile Squad at Nowshera where the secret cavities were opened and contraband opium weighing 1,004 Kgs. was recovered from those cavities. This opium was taken into possession, vide recovery memo. Exh. P. W. 1/1 by Haji Mir Ahmad (P. W. 1). Notice Exh. P. W. 2/1 under section 171 of the Customs Act, 1969 was also served on the accused. appellants. Samples from the seized opium were taken which were sent to the Laboratory for test and, vide report Exh. P. W. 1/5 it was found to be opium. The statements given at the trial by Mr. Arif Durrani (P. W. 2), Mr. Wazir Ali (P. W. 3) and Mr. Ghulam Asghar (P. W. 4) went totally unquestioned and no material question was asked from Haji Mir Ahmad (P. W. 1). The recovery of the contraband opium from the Bus driven by Ghulam Hazrat, of which Khan Wazir was cleaner, was not denied by both the accused-appellants in their examination under section 342, Cr. P. C. Khan Wazir, accused-appellant, not only pleaded guilty to the charge but in his said statement also accepted the entire responsibility of even having the knowledge that the contraband opium was placed in the secret cavities of the Bus. He, in that statement, tried to exonerate his co-accused Ghulam Hazrat by stating that he bad no knowledge of the secret cavities of the Bus, nor of the fact that the contraband opium had been placed therein. Ghulam Hazrat, accused-appellant, in his examination under section 342, Cr. P. C. denied having knowledge of the secret cavities of the Bus and of the contraband opium. He, however, admitted that at the relevant time he was driving Bus! No. T. R. P.-794 (K. L.-4281) which was inter cepted by the Customs Mobile Squad, Nowshera. He also admitted that Khan Wazir was with him as cleaner. He further stated that the permanent driver of the Bus was Nishan Gul and since he was on leave on the relevant day, be (Ghulam Hazrat) bad been temporarily engaged to drive the Bus and in that respect request had been made to him by Khan Wazir, the cleaner of the Bus, at the instance of Haji Gul Muhammad, the Owner of the Bus. The learned trial Judge, however, did not accept the explanation given by Ghulam Hazrat, accused-appellant, and he, relying on the prosecution evidence furnished at the trial, convicted and sentenced both the accused-appellant to the term already mentioned.

6. Qazi Talib Mohyuddin. Advocate appeared on behalf of the accused-appellants and Mr. Raza A. Khan, Deputy Attorney-General, appeared on behalf of the State. Their arguments were heard and the record perused.

7. The learned counsel for the accused-appellants did not challenge the conviction of Khan Wazir, accused-appellant, because of the reason that he had not only pleaded guilty to the charge but had also confessed his guilt while being examined under section 342, Cr. P. C. The learned counsel, however, submitted that the sentence awarded to him was immoderate and may be reduced.

8. As respects Ghulam Hazrat accused-appellant the contention of his learned counsel was that in suchlike cases the burden always lies on the prosecution to prove, that at the relevant time the accused was in conscious possession of the contraband goods. He argued that in this case the prosecution had failed to prove at the trial that Ghulam Hazrat accused-appellant, was in conscious possession of the opium which vv., recovered by the Customs Mobile Squad from the secret cavities of the Bus. For this reason, the learned counsel urged, Ghulam Hazrat merited acquittal and was wrongly convicted by the learned trial Judge. In support of his arguments the learned counsel relied on 1978 P Cr L J 593 and 1978 S C M R

244. The learned counsel further contended that Khan Wazir, accused-appellant, alone had the knowledge of the seer:; cavities of the Bus and of the fact that in them was placed the contraband opium which was recovered by the Customs Mobile Squad. He contended that the examination of Khan Wazir under section 342, Cr. P. C. fully exonerated Ghulam Hazrat, accused-appellant, from the offence and that his conviction may, therefore, be set aside.

9. The learned Deputy Attorney-General argued that Ghulam Hazrat, accused-appellant, was equally responsible for the offence as was Khan Wazir and that both of them were in conscious possession of the contraband opium when the Bus was intercepted by the Customs Mobile Squad. He further argued that the statement of one co-accused would not exonerate the other co-accused from the offence when on the evidence led at the trial the charge stands proved against him. He contended that on the basis of evidence produced at the trial the conviction of the accused-appellants was well-founded and so was the sentence awarded to them. He argued that the authorities cited by the learned counsel for the accused-appellants were of no avail to the accused-appellants.

10. It has come in the prosecution evidence, not even denied I, Ghulam Hazrat, accused-appellant, in his examination under section 342, Cr. P. C., that the Bus carrying the contraband opium was at the relevant time being driven by Ghulam Hazrat. The driver of the Bus has always full control of the Bus and for that reason he would certainly know what is contained in the secret cavities of the Bus. In cases of this nature the offenders take all possible precautions to hide their crime. The contra band item: are secretly placed in the, cavities designed for the purpose and only the person who has to deliver such goods at the receiving end knows where such goods have been placed in the vehicle. Such a person can only be the driver of the vehicle who has to drive the vehicle upto the receiving end. There was, therefore, no escape from the conclusion that while driving the Bus Ghulam Hazrat, accused-appellant, was in conscious possession of the contraband opium. In such circumstances, in view of the language employed in item (89) of section 156 (1) of the Customs Act, to establish the lawful excuse for such possession was his burden, which he totally failed to discharge. The defence story was that the permanent driver of the Bus was Nishan Gul who on the relevant day was on leave and for that reason the services of Ghulam Hazrat were borrowed by the owner of the Bus through Khan Wazir for that day alone. Nishan Gul was, however, neither produced in defence nor was any explanation given as to why he could not be produced at the trial. The defence story, being not worthy of reliance, was rightly disbelieved by the learned trial Judge. The mere fact that one co-accused took upon him self the entire burden of committing the offence would not absolve the other co-accused from the liability under law, nor would such device even raise a suspicion that the other co-accused was not in conscious possession of the contraband item recovered from the secret cavities of the Bus which he was driving. The circumstantial evidence, therefore, supported the prosecution case against Ghulam Hazrat, accused appellant. He was, therefore, rightly convicted by the learned trial Judge for -the offence. The authorities cited by the learned counsel for the accused-appellants do not lend support to Ghulam Hazrat's case. Both these authorities relate to same case and in my view support the prosecution case because the convic tion of the driver of the truck was in that case maintained upto the Supreme Court. The conviction of both the accused-appellants is, there fore, maintained.

11. As to the sentence awarded to the accused-appellants. I do not think it is severe. Huge quantity of contraband opium was recovered from the conscious possession of both the accused-appellants and in the circumstances even the sentence awarded to them calls for no interference.

12. There is no merit in this appeal, which is hereby dismissed. M. Y. H. Appeal dismissed.