2007 PLP 1601 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 12-6-1998 at 3-00 a.m. the complainant Excise Inspector Munawar Din along with his subordinate staff reached at Syed Petrol Pump, National Highway to check vehicles. At about 4-00 a.m. they found a truck bearing No.JT-7074 coming from Sukkur side. The truck was signaled to stop by flashing torch. The Driver of the truck reduced the speed and stopped the truck. One another person was sitting with the Driver. On enquiries the Driver disclosed his name as Nazar Hussain whereas another person disclosed his name as Zulfiqar Ali. The complainant searched them but nothing incriminating article was secured from their possession. The complainant searched the truck and found secret cavity at the back of the cabin. From the secret cavity 560 slabs of Charas were secured. Each slab weighed one Kg; total weight was 560 kg. Out of the said property 14 slabs of Charas were separately sealed for sending them to Chemical Analyzer for examination and report. The remaining property was sealed in 14 packets. The appellant and the property were brought to the police station where the complainant lodged the F.I.R. The samples were sent to Chemical Analyzer who reported that the same were Charas. After completing the investigation, the appellants were challaned in the Court of law. The learned Special Judge, Control of Narcotic Substances, Naushahro Feroze tried the appellants, convicted them for offence punishable under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced each of them to suffer imprisonment for life and fine of Rs. One million or in default thereof to suffer R.I. for three years' with benefit of section 382-B, Cr.P.C. under the impugned judgment dated 24-5-2001. Learned counsel for the appellants has stated that the evidence of the witnesses is contradictory to each other; that there is delay of three days in sending the property to Chemical Analyzer; that there is delay in lodging the F.I.R.; therefore, the case of prosecution is doubtful.. Conversely, the learned A.A.-G. has stated that both the witnesses have supported the prosecution case; that their evidence is corroborated by Chemical Analyzer's report; that the delay in lodging the F.I.R., has been explained as huge property was secured which was weighed at the place of incident; therefore, the delay had occurred in lodging the F.I.R. He has further stated that the incident took place on 12-6-1998, the property was dispatched on the next day viz. 13-6-1998 which was received by the Chemical Analyzer on 15-6-1998; therefore, there is no delay in sending the property. We have given due consideration to the arguments, gone through the evidence with the assistance of learned counsel for the appellants and found that the prosecution relied upon two witnesses viz., complainant Munawardin P.W.2, Excise Constable Lal Bux and Chemical. Analyzer's report Exh.22. Both the witnesses gave the same details of the incident as mentioned in the earlier part of the judgment; therefore, need not to be repeated. Their evidence is corroborated by Chemical Analyzer's report, which shows that the 14 slabs weighing 14 kg were Charas. Both the witnesses were cross-examined by the defence counsel but he could not obtain any material contradictions in their evidence. All the witnesses are unanimous on salient features and material aspects of the case. They categorically stated that the appellant Nazar Hussain was the Driver of the truck and from the secret cavity 560 kg of Charas was secured. The appellant Nazar Hussain being the Driver of the truck was having its possession. The property was secured from the secret cavity of the truck. The co-accused Zulfiqar Ali was sitting beside the appellant. The prosecution claims that he was Cleaner; therefore, apart from the Driver appellant Nazar Hussain, the Cleaner appellant Zulfiqar Ali was also in possession of the Charas. Now the question arises whether the property was in joint possession of both the appellants or it was in possession of the driver alone. Under section 6 of the Control of Narcotic Substances Act, 1997 possession of narcotic drugs is an offence, which is punishable under section 9 of the said Act. Section 6 reads as under:- "

6. Prohibition of possession of narcotic drug etc.

No one shall produce, manufacture, extract, prepare, possess, offer for sale, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force." It will be noticed that in this section no condition or qualification has been made that the possession should be an exclusive possession. Therefore, the possession can be joint with two or more persons. The learned counsel for the appellants has argued that the possession simpliciter would not constitute an offence unless it is accompanied by mens rea or knowledge of the person. General rule is that there is presumption that mens rea, an evil intention or a knowledge of wrongfulness of the act is an essential ingredient in every offence. However, such c presumption is liable to be displaced either by the words of the Constitution creating the offence or by the subject-matter with which it deals. Normally it is true that the plain, ordinary, grammatical meaning of words of enactment affords the best guide but in case of this kind, the question is not what the words mean but where there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence. Various authorities show that it is generally necessary to go behind the words of the enactment and to take other factors into consideration. Thus in the context, it is permissible to look into the object of the legislature and find out whether, as a matter of fact, the Legislature intended anything to be proved except possession of the article as constituting the element of the offence. Even if it is assumed that the offence is absolute, the word "Possess" appearing in the section 6 connotes some sort of knowledge about the things possessed. So we have to determine what is meant by word "possess" in the section. It is necessary to show that the accused had the article, which turned out to the narcotic drugs. In other words the ' prosecution must prove that the accused was knowingly in control of something in the circumstances, which showed that he was assenting to being in control of it. It is not necessary to show in fact that he had actual knowledge of that which he had. Reference is invited to (1969)2 A.C. 256 (H.L.). In the above authority the House of Lords was concerned with a question whether the appellant there was in unauthorized possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart from the knowledge involved in the possession of the article. Lord Reid dissented. The majority decision would show that in a case of this nature, it is not necessary for the prosecution to prove that the accused had consciousness of the guilt or the nature of the thing possessed and that it would be sufficient if it is proved that a person was knowingly in possession of the article. Lord Morris of Borth-Y-Gest said: "Must the prosecution prove that an accused had a guilty mind? It is a declared purpose of the Act to prevent the misuse of drugs. If actual possession of particular substances which are regarded as potentially damaging is not controlled there will be danger of the misuse of them by those who possess them. They might be harmfully used: they might be sold in most undesirable ways. Parliament set out therefore, to 'penalize' possession. That was a strong thing to do. Parliament proceeded to define and limit the classes and descriptions of people who alone could possess. All the indications are that save in the case of such persons Parliament decided to forbid possession absolutely." Section 6 also prescribed certain exceptions under which narcotic substance can be possessed etc.; after fulfilling condition mentioned thereunder. The question for consideration here is whether the appellant Nazar Hussain was in possession of Charas being driver of the truck. From the evidence it has been established beyond any shadow of doubt that the appellant Nazar Hussain was driving the truck as such he was incharge of the vehicle; therefore, it was under his control and possession. Hence whatever articles lying in it would be under the control and possession of the appellant. The next question for consideration is as to how far the prosecution prove the possession of Narcotic Substance by the appellant. It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature have enacted a provision in the shape of section 29 in the Act, 1997 to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drugs. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:--

29. Presumption from possession of illicit articles.

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of-- (a) Any narcotic drug, psychotropic substance or controlled substance; (b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated; (c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or (d) any material which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily. The above section expressly cast a duty upon the Court to presume in a trial under this Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs .were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such a drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge of offence; therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of the same or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act, 1997. Reliance is placed on the case Inder Sain v. State of Punjab (AIR 1973 SC 2309). In the case of Sherzada v. The State (1993 SCMR 149), the liability of driver was also considered in view of provisions of section 27, P.P.C. and it was concluded as under:-- "The next point raised by the learned counsel was that it is provided in section 27, P.P.C., that when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned counsel is without force on the face of it because section 27, P.P.C. is confined to the Pakistan Penal Code only, as the words "within the mean of this Code" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from section 26 of that Order where certain other provisions of the P.P.C. have been made applicable." In the case of State, v. Banda Gul (1993 SCMR 311), the question of burden of proof with reference to section 187 of the Customs Act was also taken into consideration and following conclusion was arrived at:-- "As stated above, in the opinion of the High Court, as the driver of the truck slipped away, there was no evidence to attribute knowledge of smuggling of the goods to the two co-accused. It appears to us that these observations have been made in oblivion of the provisions of sections 156 (90) and 187 of the Customs Act, under which burden of proof lay on the accused. It was, therefore, for the latter to have proved that they were unaware that prohibited goods were being smuggled." We may also refer case of Adil Ahmed (1991 SCMR 1951), wherein, in view of provisions of the Customs Act, it was observed that drivers and owners were both responsible. In the case of Rab Nawaz v. The State (PLD 1994 SC 858), the liability of driver was again, considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to be carrier. In the case of Nadir Khan v. State, 1988 SCMR 1899 it has been observed that knowledge and awareness would be attributed to the incharge of the vehicle. The relevant portion reads as under:-- "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being persons incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents." The appellant in the statement admitted his presence in the truck at the time of incident but took the plea that he took lift in the truck that was coming from Quetta side, which was driven by a Pathan, the police released the said Pathan and involved him in the case. He produced no evidence to prove such allegation. Further he also did not produce any evidence to disprove the possession as required under section 29 of the Act, 1997. Therefore, he will be presumed to be guilty of the offence. From the above facts it is clear that the property was secured from the possession of appellant Nazar Hussain being the Driver of the truck. Therefore, he is involved in the case and the prosecution has proved the case against him. As regards the case of Zulfiqar Ali, the prosecution alleged that he was sitting by the side of the appellant Nazar Hussain at the time when the truck was intercepted. The prosecution did not produce any evidence to show that he was in joint possession or control of the truck or he had any concern or dealt with the property in any manner. But on the contrary the Charas was concealed in secret cavity made in the truck that clearly shows that it was hidden from all persons. There is no evidence to indicate that appellant knew that Charas was concealed in the secret cavity or he had exclusive knowledge of the said place so as to attract the provisions of Article 122 of Qanun-e-Shahadat Order, 1984. If the property was lying open within the view of the appellant or he knew the placement of property then the situation would have been quite different. In such a situation he was required to explain his position, without such explanation his involvement in the case would have proved. However, such facts are not attracted in the present case, therefore, the appellant is not required to explain anything. The prosecution has simply proved his presence in the truck. Therefore, mere presence of the appellant Zulfiqar Ali in the truck would not involve him in the case unless conspiracy or abetment of the offence is shown and proved. Thus the case of appellant Zulfiqar Ali is distinguishable from the case of appellant Nazar Hussain. The prosecution has failed to prove the case against appellant Zulfiqar Ali. Above are the reasons of our short order dated 7-9-2006 by which we had allowed the appeal of Zulfiqar Ali and dismissed the appeal of Nazar Hussain. N.H.Q./N-13/K Order accordingly.