PLJ 2024 Cr.C. 1114 (DB)
[Islamabad High Court, Islamabad]
Present:
Arbab
Muhammad Tahir and Saman Rafat Imtiaz, JJ.
RAWAIZ KHAN--Appellant
versus
STATE--Respondent
Crl. A. No. 280 of 2023, heard on 29.5.2024.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Contraband charas
recovered--Conviction and sentence--Challenge to--Testimony of witness--It is
established from evidence, highlighted above that contraband was lying open at
dashboard near wind screen--Neither contraband was recovered from personal
possession of appellant nor from co-accused, since acquitted--It is further
established from evidence that contraband was also not recovered from any
secret cavity of vehicle and that at relevant time; around 19 passengers had
been onboard--In such eventuality when there is no Incriminating material
establishing direct nexus of appellant with recovered substance and that, too,
particularly when disclosure made by appellant and co-accused had already been
disbelleved by trial Court, It would not be safe to hold appellant guilty for
offence charged--No other Incriminating material was recovered from appellant
which could be made basis to establish his direct link with recovered
substance--It is also an admitted position that at relevant time, there were 19
passengers onboard but none of them was joined in investigation, particularly
passengers, who at relevant time, were holding front seat--Even otherwise, it
does not appeal to a prudent mind that contraband was being transported by
placing it open on dashboard near front screen, visible to everyone, instead to
conceal same in any secret cavity--In order to substantiate charge, prosecution
was under obligation to establish knowledge of appellant regarding contraband
recovered from vehicle by producing convincing and trustworthy evidence, but
they failed to do so, for reasons stated above and, therefore, In absence of
same, it would not being to hold appellant guilty for offence
charged--Prosecution has falled to establish nexus of appellant with recovered
contraband, therefore, there left no need to dilate upon rest of incriminating
material--Safe transmission of sample sealed parcel to office of NIH Islamabad
and its positive report as same only explores kind 2024 of substance recovered i.e.
‘chars’ and in no way connects appellant with commission of alleged
offence--Consequently, listed criminal appeal is allowed, conviction and
sentence of appellant were set-aside.
[Pp.
1119, 1121 & 1122] A, D & E
2014 SCMR 1165 and 2012
SCMR 440.
Testimony of Witness--
----Under law, testimony of a
witness is to be accepted or discarded in its totality as principle of ‘sifting
chaff from grain’ has since been evolved and principle “falsus in unofalus
in omnibus” has been made integral part of our criminal Justice system. [P.
1119] B
PLD
2019 SC 527.
Statement of Witness--
----Statement of a witness has to
be accepted or discarded in its entirety and not in piecemeal. [P. 1120] C
As per Saman Rafat Imtiaz, J.
Control of Narcotic Substances
Act, 1997 (XXV of 1997)--
----S. 6--“Possession”--Thus in
order to establish offence of ‘possession’ under Section 6, CNSA ownership of substance
is not necessary--In cases of recovery of narcotics from vehicles, offence of
‘possession’ is made out if nerooties are recovered either from physical
possession of accused or if facts admitted or proved through evidence establish
that accused knew or must be regarded as having known that narcotics were in or
onboard conveyance. [P. 1139] F
Conviction in recovery of charas--
----Conviction and sentence--Conviction
of driver in cases of recovery made from secret cavities of a vehicle on presumption
that driver being in charge of vehicle has knowledge and awareness of articles
lying in vehicle--It has been consistently held by apex Court that driver, even
if not owner of vehicle, is in control and in possession of vehicle, hence
there is a presumption that he is in conscious possession of articles. [P. 1140] G
Control of Narcotic Substances
Act, 1997 (XXV of 1997)--
----S. 9(c)--Recovery
of charas--Conviction and Sentence-- mere presence in vehicle is not sufficient
to establish offence of ‘possession’ under Section 6 of CNSA when narcotics are
recovered from secret cavities or are concealed or hidden and prosecution is required
to prove that accused had joint possession of vehicle or had some concern with
or otherwise dealt with narcotics--Narcotics were
not found in exclusive physical possession of Appellant/Driver--joint
disclosure has no evidentiary value--Neither finger printing was conducted to
establish that Appellant/Driver dealt with contraband nor was any other
connection established-- reasonable doubt that charas recovered from a place
inside bus to which all occupant/passengers had access to was in exclusive or
joint ‘possession’ of Appellant/Driver--Appeal was allowed.
[Pp.
1140 & 1141] H, I, J & K
Raja Muhammad Shafaat Khan,
Advocate for Appellant.
Rana Zulfiqar Ali, Special
Prosecutor ANF for State.
Dates of hearing: 24.1.2024 &
29.5.2024.
Judgment
Arbab Muhammad Tahir, J.--Through the listed criminal appeal
under Section 48 of the Control of Narcotics Substances Act, 1997 (“Act of
1997”), appellant Rawaiz Khan Impugns judgment dated 20.07.2023, passed by
the Judge Special Court (CNS), Islamabad, whereby he was convicted under
Section 9(C) of the Act of 1997, for trafficking 1200-grams Charas and
sentenced to undergo 04 years and 06 months R.I. with fine of Rs. 50,000/-, in
default whereof, to further undergo 06 months S.I. with benefit of Section
382-B, Cr.P.C., in case F.I.R No. 77, dated 10.09.2020, under Section 9-C and
15 of the Act of 1997, registered at Police Station ANF-RD North, Rawalpindi.
2.
Precisely, on 10.09.2020, at about 11.30 a.m., a contingent of ANF officials,
headed by Inspector Taqi Abbas (PW-4), including Saparash Khan (PW-5), Waqas
Khan (given up PW), intercepted a public transport vehicle (U-Tong Bus, Master
Executive class, registration No. LET-2239, Blackish colour) at Exit-M1,
Motorway link Road Islamabad, coming from Peshawar side. The appellant Rawalz
Khan found sitting on the driver’s seat while (co-accused since acquitted) was
recognized as clearer. On checking of the vehicle, a packet of Chars wrapped
in white polythene enveloped with insulation tape covered with Black cloth,
lying at the dashboard near windscreen was recovered. PW-4/Inspector Taqi
Abbas weighed the contraband along with the taping material and found 1200
grams in total. Inspector/PW-4 separated 10 grams from the recovered.
Substance, prepared its sealed parcel while the remaining contraband was sealed
in separate parcel. PW-4 took Chars EX-P1 along with packing material black
cloth Ex. P2, vehicle Ex. P3 and its key EX-P4 in his possession through
recovery memo Ex-PC attested by PW-5 Saparash Khan and PW Waqas Khan Constable.
The Inspector/PW-4 also took in his possession personal belongings of the
appellant and co-accused Irfan, through separate recovery Memos Ex.PD and
Ex.PE, respectively, also attested by PW-5 Saparsh Khan Constable and Wagas Khan
Constable. PW-4/Inspector after preparing complaint Ex. PA sent the same to the
Police Station for the registration of formal FIR which was recorded by PW-1 on
the same day, tendered in evidence as Ex. -PB. After the registration of FIR,
Investigation was conducted and on being found guilty, both, the appellant and
co-accused (since acquitted), report in terms of Section-173, Cr.P.C. was
submitted before the Court of competent jurisdiction for trial in due course.
3. At the trial, prosecution produced five witnesses i.e.
PW-1 Yasir Naseer SI, PW-2 Abdul Razaq HC, PW-3 Jawad Ahmed Constable, PW-4
Taqi Abbas Inspector and PW-5 Saparash Khan, Constable. The learned SPP ANF had
given up PW Waqas Khan Constable and closed prosecution evidence. The report of
NIH is
Ex-PG. The gist of the prosecution evidence is as under:
PW-1 Yasir Naseer
SI On 10.09.2020 drafted formal FIR Ex. PB on the basis of complaint Ex.PA
sent by Inspector Taqi Abbas PW-4 through constable Farooq. The witness also
testified his signatures, Ex.PA/1 on the complaint Ex. PA.
PW-2 Abdul Razzaq
Head Constable had been Moharrar Malkhana at the relevant time, deposed to
have received case property of this case on 10.09.2020 i.e. Sealed
sample parcel, parcel of remaining chars, articles wherein the contraband was
wrapped, personal belongings of the appellant and co-accused, vehicle along
with its key. Kept the case property in safe custody in Malkhana and on
11.09.2020 transmitted sample sealed parcel to the office of NIH Islamabad
through Constable Jawad Ahmed, PW-3.
PW-3 Jawad Ahmed
constable on 11.09.2020 collected sample sealed parcel from Abdul Razzaq
Moharrar PW-2 and deposited the same in the office of NIH Islamabad on the same
day.
PW-4 Taqi Abbas
Inspector is the complainant as well as investigating officer of this case.
The witness deposed to prove the details of investigation conducted by him at
the spot on 10.09.2020 and thereafter, tendered in evidence the report of
Chemical Examiner NIH, Islamabad, Ex.PG.
PW-5 Saparash Khan
constable, had been member of raiding party, is the recovery witness,
deposed to prove the interception of the vehicle, recovery of contraband and
other proceedings conducted at the spot.
4.
After the recording of above prosecution evidence, appellant and co-accused
Irfan (since acquitted) were examined u/s 342, Cr.P.C. wherein they denied the
prosecution evidence. The appellant in his statement has taken the plea that PWs
registered this false case just to show efficiency to their high ups.
The appellant in reply to Question No. 9 admitted to the extent that he
was driver but had taken the stance that no objectionable thing was recovered
from the vehicle, however, opted not to make his statement on oath
under Section 340(2) Cr.P.C. or to produce any defence evidence. The learned
trial Court after hearing the counsel for the appellant, co-accused and learned
SPP, acquitted co-accused Irfan while convicted and sentenced the appellant
vide judgment dated 20.07.2023, being assailed through the Instant appeal.
5.
Learned counsel for the appellant argued that there are material contradictions
in the statements of prosecution witnesses with regard to the proceedings
conducted at the spot and safe transmission of sample sealed parcels; that
under the law, investigation must be conducted by an independent officer, while
in the instant case, the complainant himself conducted investigation and that,
too, without permission of the high-ups; that crucial witness, constable
Farooq, who was also member of the raiding party and took the complaint to the
Police Station for the registration of FIR, was neither cited as a witness in
the relevant list nor produced in the Court in order to testify the proceedings
conducted at the spot, therefore, impugned conviction and sentence recorded by
the Trial Court vide impugned judgment are liable to be set aside.
Learned counsel relied upon case law reported as PLD 1997 SC 408, 2021 P.Cr.L.J
1294, 2022 Р.Cr.L.J
1233, PLD 2019 SC 527, 2012 P.Cr.L.J 1151 and 2018 P.Cr.L.J 1476.
6. On the other hand, learned Special Prosecutor ANF repelled
the above submissions by contending that the prosecution evidence is firm to
establish unbroken chain of events that is corroborated by the positive report
of N.Ι.Η. Further argued
that the prosecution evidence being of unimpeachable character establishes
charge against the appellant who despite lengthy cross-examination failed to
bring on record any material discrepancy, therefore, impugned Judgment does not
call for any interference.
7. We have heard the learned counsel for the appellant, learned
Special Prosecutor ANF and have gone through the record with their able
assistance.
8. In the present case, narrative begins when a contingent of
ANF officials intercepted a public transport vehicle at Exit-M1 Motorway link
Road, Islamabad, being driven by the appellant while co accused, since
acquitted, was also present in the said vehicle as a cleaner. As per complaint
and recovery memo chars wrapped in polythene envelope with yellow insulation
tape, in a black colour cloth, was recovered, “lying at dashboard near wind
screen” whereas both the witnesses i.e. PW-4 Taqi Abbas Inspector and PW-5
Saparash Khan constable in their examination in chief stated that 01 packet
chars wrapped in block cloth was recovered which was lying on the dashboard
near the front wind screen. There is no mention in their statements that chars
was wrapped in polythene envelope with yellow insulation tape. PW-4,
Investigating Officer admitted in cross-examination that recovery effected
in present case was neither from personal possession of the accused facing
trial, nor from the secret cavity made in the vehicle. The witness also
admitted that other passengers were also present in the vehicle from which
the accused facing trial was apprehended. PW-5 Saparash constable further
elaborated in cross-examination that “around 19 passengers were present in
the seized bus at the time of apprehension of the accused facing trial besides
some vacant seats.”
9. It
is established from the evidence, highlighted above that the contraband was
lying open at dashboard near wind screen. Neither the contraband was recovered
from personal possession of the appellant nor from co-accused, since acquitted.
It is further established from the evidence that contraband was also not
recovered from any secret cavity of the vehicle and that at the relevant time;
around 19 passengers had been onboard. In such eventuality when there is no incriminating
material establishing direct nexus of the appellant with the recovered
substance and that, too, particularly when disclosure made by the appellant and
co-accused had already been disbelleved by the trial Court, It would not be
safe to hold the appellant guilty for the offence charged. No other incriminating
material was recovered from the appellant which could be made basis to
establish his direct link with the recovered substance. It is also an admitted
position that at the relevant time, there were 19 passengers onboard but none
of them was joined in investigation, particularly the passengers, who at the
relevant time, were holding front seat. Even otherwise, it does not appeal to a
prudent mind that contraband was being transported by placing it open on
dashboard near front screen, visible to everyone, instead to conceal the same
in any secret cavity.
10.
Under the law, testimony of a witness is to be accepted or discarded in its
totality as the principle of ‘sifting chaff from the grain’ has since
been evolved and the principle “falsus in unofalus in omnibus” has been
made integral part of our criminal Justice system. The Supreme Court of
Pakistan in case reported as (PLD 2019 SC 527) (Notice to Police Constable
Khizar Hayat son of HadaitUllah on account of his false statement: In the
matter of Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal
No. 238-L of 2013, decided on 4th March, 2019) has held that:--
“Holding that the rule
falsus in uno, falsus in omnibus is inapplicable in this country practically
encourages commission of perjury which is a serious offence in this country. A
Court of law cannot permit something which the law expressly forbids.
16. It can be seen
from the analysis of the judgment mentioned above that the main reasoning given
for not applying the rule relates to the social conditions prevalent in the
country. It seems that because it was felt by the Superior Courts that
generally witnesses testifying in criminal cases do not speak the whole truth
and have a tendency to exaggerate or economies with the real facts, there is a
danger of miscarriage of justice in the sense that a real culprit may go scot
free if a Court disbelieves the whole testimony on account of reaching the
conclusion that the testimony was false in some respect.
11. The Supreme Court of Pakistan in the judgment supra henceforth made the rule ‘falsus
in uno, falsus in omnibus’ as an integral part of our jurisprudence in
criminal cases in following terms:
“We may observe in
the end that a judicial system which permits deliberate falsehood is doomed to
fail and a society which tolerates it is destined to self-destruct. Truth is
the foundation of justice and justice is the core and bedrock of a civilized
society and, thus, any compromise on truth amounts to a compromise on a
society’s future as a just, fair and civilized society. Our Judicial system has
suffered a lot as a consequence of the above mentioned permissible deviation
from the truth and It is about time that such a colossal wrong may be rectified
in all earnestness. Therefore, in light of the discussion made above, we
declare that the rule falsus in uno, falsus in omnibus shall henceforth be an
integral part of our jurisprudence in criminal cases and the same shall be
given effect to, followed and applied by all the Courts in the country in its
letter and spirit. It is also directed that a witness found by a Court to have
resorted to a deliberate falsehood on a material aspect shall, without any
latitude, invariably be proceeded against for committing perjury.”
12. The
dictum referred above guides to hold that statement of a witness has to be
accepted or discarded in its entirety and not in piecemeal. Under the principle
ibid, statements of both the recovery witnesses i.e. PW-4 Taqi Abbas Inspector
and PW-5 Saparash Khan constable are to be read as a whole. Their statement
explicitly reveal that contraband was not recovered from personal possession
of appellant or co accused, since acquitted, it was not kept in any secret
cavity rather was found lying open on dashboard, close to wind screen and
that about 19 passengers were on board but none of them were joined in investigation.
In presence of these facts, It would not be just to hold the appellant guilty
for the offence charged and the observation of the trial Court contained in
paragraph 18 of the Judgment i.e. “accused Rawaiz Khan at least
cannot escape the liability for keeping the contraband concealed in the bus
...” is result of misreading of evidence in its true perspective as the
contraband was not concealed rather found lying open on dashboard of the
vehicle near wind-screen.
13.
Under the circumstances, case of the appellant and co accused, since acquitted
is at par as no incriminating material was recovered from the possession of both
of them, the appellant, being driver of the vehicle, cannot be held responsible
for the recovered substance in the light of evidence on record whereby it is
established that contraband was lying open at the dashboard, which is commonly
used by the passengers holding front seat for laying their luggage, 19
passengers were on board but no one was joined in investigation. Since the same
set of evidence has been disbelieved qua Involvement of co accused, as such,
same evidence cannot be relled upon in order to convict the appellant. Reliance
is placed upon case of “Muhammad Akram v. The State (2012 SCMR 440)
wherein it was observed that:
“Since the same set
of evidence has been disbelieved qua the involvement of Muhammad Aslam, as
such, the same evidence cannot be relied upon in order to convict the appellant
on a capital charge as the statements of both the eyewitnesses do not find any
corroboration from any piece of independent evidence.”
14.
Reliance is also paled upon case of “Muhammad Ali v. The State” (2015
SCMR 137), “Shaban Akhtar and another v. The State through Prosecutor
General Punjab (2021 SCMR 395). “Liaqat Ali and others v. The State and
others” (2021 SCMR 455) and “Muhammad Yasin and another v. The State
through P.G. Punjab and others” (2020 SCMR 1237).
15. In order to substantiate the charge, the prosecution was
under obligation to establish knowledge of the appellant regarding contraband
recovered from the vehicle by producing convincing and trustworthy evidence but
they failed to do so, for reasons stated above and, therefore, in absence of
the same, it would not be to hold the appellant guilty for the offence charged.
The Supreme Court of Pakistan in the case of “Riaz Mian and another v. The
State” (2014 SCMR 1165), in appeal against conviction and sentence of Life
Imprisonment under Section 9C of the
Act of 1997, entailing recovery of 420-kilogram chars and opium weighing
17-kilogram from a bus, acquitted driver, co-driver and conductor of the bus by
observing that “prosecution was unable to point to any place of
incriminating evidence against the driver, co-driver and conductor of the bus
to saddle them with knowledge that they were privy to commission of the subject
crime.”
16.
Having examined the case from every angle, we have reached to the conclusion
that prosecution has falled to establish nexus of the appellant with the
recovered contraband, therefore, there left no need to dilate upon rest of
incriminating material e. Safe transmission of sample sealed parcel to the
office of NIH Islamabad and its positive report as the same only explores kind
of substance recovered i.e. ‘chars’ and in no way connects the appellant
with the commission of alleged offence. Consequently, listed criminal appeal is
allowed, conviction and sentence of the appellant recorded by the
Special Court CNS Islamabad vide impugned judgment dated 20.07.2023 are
set-aside. The appellant is acquitted from the charge by extending him the
benefit of doubt. The appellant is in jail who shall be released forthwith, if
not required in any other case.
Sd/- Sd/-
Judge Judge
Saman Rafat Imtiaz, J.
17. I
have had the pleasure of reading the judgment of my learned brother, Mr.
Justice Arbab Mohammad Tahir. I agree with the conclusion drawn by him to allow
the instant appeal and consequently to set aside the conviction and sentence of
the Appellant awarded vide the Impugned Judgment dated 20.07.2023 passed
by the Judge, Special Court (Control of Narcotics Substance), Islamabad.
Nevertheless, I feel the need to write this separate concurring opinion due to
the significant legal and factual questions involved. For the sake of brevity,
I shall adopt the statement of facts as recorded in the judgment of my learned
brother as well as the synopsis of arguments submitted by the learned law officers
and counsel contained therein.
18. The
reason for this separate note is that whilst there is a plethora of judgments
containing discussion in respect of the culpability of the driver, conductor
and/or passengers for possession of controlled substances including narcotics
found in the secret cavities of a vehicle, judgments where such substances have
been recovered from the interior of the vehicle lying in plain view are far and
few in between. In the instant case, narcotics were found wrapped in a black
cloth lying openly on the dashboard of a public transport vehicle with 19
passengers onboard apart from the Appellant/Driver and the Co-accused/Conductor
yet only the latter two were apprehended and only the Appellant/Driver was
convicted. Therefore, I consider it important to examine past precedent in
order to elicit the basic principles involved in affixing liability for
possession of controlled substances under Section 6 of the Control of Narcotics
Substances Act, 1997 “CNSA”) and to elaborate on how such principles have been
applied to reach the conclusion to allow the instant appeal and in particular
to highlight what the prosecution was required to do to bring home the charges
against the Appellant/Driver for future purposes.
(i) Said Shah vs The State,
PLD 1987 SC 288:
(a) The appellants before the Supreme Court in
this case were convicted of the offence of illegal transport of liquor under
Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979. The bottles of
Liquor were found packed in wooden crates in a Suzuki van being driven by one
of the three appellants while another was acting as his conductor and the third
was an occupant. The driver and the conductor pleaded that although the liquor
was found in their vehicle they did not know that the wooden crates contain
bottles of liquor as the occupant owned them and had represented that they
contain soap whereas the occupant named yet another person as the owner of the
liquor.
(b) The Supreme Court at the very outset noted
that ownership of the intoxicant would not be necessary for proving the offence
under Article 3 (Prohibition of manufacture, etc, of intoxicants) and Article 4
(Owning or Possessing Intoxicants) of the Prohibition (Enforcement of Hadd)
Order, 1979. Thus the plea that the appellants did not own the liquor would not
make any difference.
(c) Another important
principle of law enunciated in this judgment is that no hard and fast rule can
be laid down as to presumption regarding driver or conductor of a public
vehicle and that it would depend upon the circumstances of each case as to
whether the driver or conductor of a public vehicle is conscious of the
contents of the goods he is transporting or carrying as luggage of a passenger.
In the said case the Supreme Court dismissed the appeals filed by all three
convicts and held that since there were concurrent findings of facts that the
appellants were aware about the contents of the crates there was no
justification for interference with them. Though the judgment does not discuss
the basis on which the lower Courts held that the driver and conductor were
aware about the contents of the crates, the takeaway from this judgment is that
the prosecution, in order to prove the commission of the offence of possession,
is required to prove that possession was conscious.
(ii) Nadir Khan
vs The State, 1988 SCMR 1899:
(a) Heroin was found
in the secret cavities of a car with two occupants including the driver. Both
the driver as well as the occupant denied knowledge and awareness of the
presence of heroin hidden in the car. The driver contended that the car had
been given to him for a job by a third person. It was argued on behalf of the
petitioners that they could not be said to have knowledge of the presence of
narcotics in the vehicle and convicted on that presumption alone and that they
have given a plausible explanation and finally that at the most they could be
held as carriers for which lenient view ought to be taken.
(b) The Supreme Court
observed that the petitioners had the charge of the vehicle for a long journey
starting from Peshawar and terminating at Karachi and they had driving licenses
also. Thus leave to appeal was refused by holding that the petitioners must be
saddled with the necessary knowledge with regard to the vehicle and its
contents as persons in charge of the vehicle for a long journey. It was
acknowledged that probabilities and presumptions are all dependent on the
circumstances of each case but the Court opined that the circumstances in the
case before it fully established knowledge and awareness of the contents by the
petitioners. Thus knowledge and awareness was required but it was presumed
based on the circumstances of the case.
(c) Interestingly enough it was held that
under the circumstances the petitioner’s explanation showing ignorance actually
strengthens the conclusion rather than weakening it. Insofar as claiming
leniency on account of being carriers is concerned the Court held that
confessing accused are dealt with leniently as a confession even if belated
assists in the administration of justice but that such leniency cannot be
claimed or shown to a person who denies the commission of the offence itself to
the end rendering no help to identify the real and major culprits and only
resorts to it by way of an alternative argument to rely on. Thus a presumption
of knowledge and awareness arises against occupants of a vehicle especially on
a long journey which presumption cannot be rebutted by a simple denial and
claim of ignorance. Furthermore, leniency, if at all, can be shown to a carrier
who confesses and thereby assists in locating the persons with greater
responsibility in the matter but not one who resorts to such defense only as an
alternative at the fag-end only to save himself without providing any assistance
in the administration of justice.
(iii) Shah Wali
vs The State, PLD 1993 SC 32:
(a) Heroin was found
packed in a plastic and cloth envelope recovered from the seat of a Suzuki
driven by one of the petitioners while the other petitioner was seated in the
front along with the driver.
(b) The
Supreme Court observed that in such cases it was almost impossible to determine
as to who the exclusive owner of the narcotice is yet it could not be concluded
that neither 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 and as such it
was held that it was in their joint possession. The takeaway from this case
therefore is that the prosecution is not required to prove exclusive possession
of the narcotics if found openly inside a vehicle occupied by more than one
person and all occupants may be convicted for joint possession.
(iv) Sherzada vs The State, 1993 SCMR 149:
The conviction of the
driver of a car from the secret cavities of which heroin was found was upheld
by the Supreme Court in this case. According to the documents recovered from
the car it belonged to another person. Two children of the car owner were also
traveling in the car with the driver. The counsel’s argument that the appellant
did not have conscious possession of the contraband and that the possibility
that the heroin was put in the secret chambers of the car by the owner without
the knowledge of the driver could not be ruled out was repelled as follows:
“10. It is true that the offence cannot be made out against any person
unless he has the conscious possession of the contraband article, but the
knowledge is an inner quality which can only be inferred from the circumstances
of the case. There is no hard and fast rule which can be laid down in this
respect. It depends upon the
circumstances whether the knowledge and conscious possession have been
reasonably inferred from the facts proved on the record. In the present
case the appellant was driving the car from Mardan and it is not believable
that he had no knowledge of the articles found in the car. Had he taken the plea that the articles were found in the secret
chambers and they were put by the owner without his knowledge, this point can
be helpful to him, but in the instant case he did not take such a plea, He
did not only deny the fact of recovery, but also claimed that the secret
chambers were created by the Excise party itself. In such a case it cannot be
held that he did not have the knowledge of the articles found in the car driven
by him.” [Emphasis added]”
(v) Zahoor
Ahmad Awan vs The State, 1997 SCMR 543:
(a) Heroin was
recovered during search of the driver’s cabin from the ceiling of a truck above
the driver’s seat. The driver as well as his companion sitting in the front
seat next to the driver were both apprehended.
(b) The argument put
forward was that the prosecution did not succeed in proving that the appellants
had knowledge that contraband material was concealed in the truck or they were
owners of the drug or the vehicle. The argument was found impressive inasmuch
as the prosecution did not produce the evidence to demonstrate that it was in
the exclusive knowledge of the appellant that heroin was found in the truck
they were travelling in. The Supreme Court held that the possibility that the
appellants did not know that heroin was concealed in the truck along with
fodder could not be excluded and as such the appeal was accepted and the
conviction and sentence of the appellants were set aside.
(vi) Ghulam
Qadir vs The State, PLD 2006 SC 61:
The driver of
the bus contended that he cannot be held responsible for transporting 320 kg of
poppy flowers if they were lying openly on the roof of the bus and at best his
responsibility would start only if narcotics had been recovered from cavities
of the bus. The Supreme Court referred to Article 29(d) of the CNSA where under
unless otherwise proved, presumption would be that an accused has committed an
offence under this Act in respect of any material which have undergone any
process towards the production or manufacture of narcotics, 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. It was noted that presence of petitioner being driver in the
vehicle is not denied and that invariably the driver claims not to have
knowledge when narcotics are recovered from their possession but that such
contention has been rejected in cases referred to in the said judgment. The
Supreme Court was not inclined to believe that the petitioner who was driving
the vehicle would be unaware of eight sacks on the roof of the vehicle and the
contents recovered from them despite the fact it was argued that a number of
passengers were travelling along with their luggage in the bus and therefore
the possibility cannot be overruled that the recovered articles were owned by
one of them and the Supreme Court dismissed the petition.
(vii) Qaisarullah
vs The State, 2009 SCMR 579:
Charas recovered from the
secret cavities of a car was pointed out by the driver and the passenger
sitting in the front seat. The Supreme Court held that the driver was rightly convicted,
however, the other appelant was acquitted by extending him the benefit of doubt
as the prosecution failed to connect the other appellant with the ownership of
the car whose defense from day one was that he merely took a ride with the
driver and that he knew nothing about the concealment of narcotics in the car
which was neither driven by him nor owned by him.
(viii) Muhammad Noor vs The State,
2010 SCMR 927:
(a) The narcotics in this case were recovered
from the secret cavities of a jeep on disclosure of the driver and co-accused
out of a total of five occupants. Both the driver and the co-accused who pointed
out the location of the narcotics were convicted while the remaining occupants
were acquitted.
(b) This judgment firstly reiterates that Section
6 of the CNSA does not require exclusive possession and that possession can be
joint between two or more persons.
(c) It was argued before the Supreme Court on
behalf of the convicts that possession simplicitor would not constitute an
offence unless it is accompanied with mens rea. The Supreme Court interpreted
the word “possess” as used in Section 6 of the CNSA to mean that 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 but that it is not necessary to show that he had actual knowledge of that
which he had. The Supreme Court relied upon Warner vs MPC. (1969) 2 A.C.
256 (11.L) whereby it was held that it is not necessary to prove mens rea apart
from the knowledge involved in the possession of the article. The majority held
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 the person was
knowingly in possession of the article. It was pointed out that in most cases
it will be very difficult for the prosecution to prove that
the accused was knowingly in possession of narcotic drugs and that is why the
Legislature enacted a provision in the shape of Section 29 of the CNSA to shift
the burden upon the accused to disprove the possession once the prosecution
proves that the accused was in possession of narcotic drugs.
(d) Thus the Supreme Court explained that in
the case of possession of narcotic drugs first the 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 drugs. Therefore, it
is necessary for the prosecution to establish that the accused has some direct
relation 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 is not knowingly in possession of the
article is upon him. It was further explained that mere physical custody
without knowledge of an offence is not sufficient to constitute an offence and
conscious possession is necessary nevertheless it is a different thing to say
that the prosecution should prove that the accused was knowingly in possession.
By virtue of Section 29, CNSA the prosecution only has to show through evidence
that the accused has dealt with the narcotic substance or has physical custody
of it or was directly concerned with it unless the accused proves that he did
not knowingly or consciously possess the article and without such prove the
accused will be held guilty.
(e) In the same case
the Supreme Court reiterated with regard to the driver of the vehicle that the
driver is in-charge of the vehicle, therefore, it would be under his control
and possession and whatever articles lying in it would be under his control and
possession.
(f) The case of the other occupants who were
sitting in the vehicle and did not point out the location of the narcotic drugs
was distinguished. I was held that in such cases the prosecution is required to
produce evidence to show that the said persons were in joint possession and
control of the vehicle or that they had concern or dealt with the narcotic
substances particularly when they are concealed in secret cavities. It was also
observed that if on the other hand property was lying in open view of the said
persons or they knew of the placement of the property then the situation would
be different and they would be required to explain their position in terms of
Article 122 of the Qanun-e-Shahdat, 1984 and without such explanation their
involvement in the case would be proved. However, in the case before the
Supreme Court the prosecution was only able to prove their presence in the
vehicle and mere presence was held not to be sufficient to involve them in the
case.
(ix) Kashif Amir
vs The State, PLD 2010 SC 1052:
(a) The petitioner was apprehended while
driving a car along with another person sitting in it. The search of the car
led to the recovery of charas and opium from its secret cavities. Both accused
persons were convicted but in the case before the Supreme Court only the driver
challenged the conviction.
(b) The Supreme Court held that it is well
settled principle that a person who is in the driving seat of the vehicle shall
be held responsible for the transportation of narcotics, having knowledge of
the same as no condition or qualification has been made in Section 9(b), CNSA
that possession should be in exclusive one and that it can be joint.
(c) Further that when a person is driving a
vehicle he is in charge of the same and it would be under his control and
possession hence whatever articles lying in it would be under its control and
possession and that possession would be attributed to the in charge of the
vehicle. The Supreme Court also noted that once the prosecution has prima
facie establish its case then the burden shifts upon the accused under
Section 29, CNSA to prove the contrary. In the case before the Supreme Court it
was held that the prosecution discharged its initial burden while proving that
narcotics were recovered from the petitioner, as such, the burden had shifted
to the petitioner to prove his innocence, which he failed to do so.
(x) Haji Inayat
vs The State, 2010 P.Cr.L.J. 825:
(a) Charas was recovered from a secret cavity
near the fuel tank of a truck occupied by the driver and his helper both of
whom were apprehended.
(b) The Sindh High Court at Karachi noted that
Section 6 of CNSA comprises of a number of different and distinct elements and
the contravention of any element is an offence punishable under Section 9. In
the case before the Sindh High Court only two elements namely ‘possession’ or
‘transportation’ of charas were involved and the question before the Court was
whether possession or transportation of charas had been established beyond
reasonable doubt. The Court observed that the answer to the question whether
the prohibited substance was being transported by the accused lies in whether
he can be said to be in possession thereof since for example the drug may be
onboard the conveyance unknown to the accused.
(c) It was held that
the accused can be said to have possession of prohibited drugs onboard the
conveyance if either (i) the drugs were in actual physical possession of the
accused or (ii) the facts admitted or proved at trial establish beyond
reasonable doubt that the accused knew or must be regarded as having known that
the drugs were in or onboard the conveyance.
(d) The Court
followed Zahoor Ahmad Awan (Supra) while acquitting the appellants and
took into view that the appellants were simply the driver and his helper and
not the owner of the truck. Further that the charas was found from a secret
compartment located up on search of the truck by the Excise Officer and not
pointed out by the appellants. The Court especially took note of the fact that
the charas was not lying in the truck in an open and easily accessible place or
manner unlike the case of Shah Wali (Supra) in which the heroin was found
wrapped in a plastic and cloth envelop lying on the passenger seat of the car
and in Ghulam Qadir (Supra) in which the prohibited substance was found lying
openly in eight sacks on the roof of a coach and in both cases the appeals were
dismissed. The reasoning of the Court is as follows:
15. In our view, for the reasons
hereinafter stated, the answer to the above question must be in the negative.
Neither of the Appellants was the owner of the truck. They were simply its
Driver and his helper. The Charas itself was not lying in the truck in an open
or easily accessible place or manner, eg, in the back of the truck under the
driver’s seat (whether openly or in a locked container or box). (In Shah Wali
and another v. The State PLD 1993 SC 32, the heroin was found wrapped in a
plastic and cloth envelop which was lying on the passenger seat of the car,
while in Ghulam Qadir v. The State PLD 2006 SC 61, the prohibited substance was
found lying openly in eight sacks on the roof of the coach. In both cases, the
appeals of the convicted accused were dismissed). In the present case however
the Charas was hidden in a secret compartment inside the body of the truck
(near the petrol tank). This secret compartment was not pointed out or revealed
by either of the appellants, but was located upon a search of the truck’s body
by the excise officers. The compartment had to be opened with the help of a
hammer, i.e. it was locked or sealed in some manner. Although the appellants
were searched, the record does not show whether any key or other tool to open
the compartment was found on their person or in the truck. The Charas was in
packets of one kg each kilogram was wrapped in plastic. The record does not
show whether any attempt was made to determine whether appellants had handled
the packets. For example, the packets could have been dusted for fingerprints
for comparison with the fingerprints of the appellants. If such an exercise had
revealed a match with either (or both) of the appellants. That would have
established that they had handled the packets, e.g.. while placing them in the
secret compartment. These are just a few factors which come readily to the mind
of any reasonable person when considering the question whether the appellants
knew or could be regarded as knowing that the Charas was on board the truck No
doubt a professionally trained team, carrying out a properly conducted search,
could think of many more ways of connecting the appellants with the Charas in a
legally relevant and permissible manner. No such method was however, adopted
nor was any such exercise carried out. There is also nothing on the record to
show the destination of the truck or the duration of the journey; the only
thing that is established is that the truck was coming from Sukkur side. (In
Nadir Khan and another v. The State 1988 SCMR 1899, it was held that the person
in charge of a vehicle on a long journey (in that case, from Peshawar to
Karachi) can be saddied with knowledge of the contents of goods being carried
in the vehicle) In our view therefore, it cannot be said to have been
established beyond reasonable doubt that the appellants knew or could be
regarded as knowing that the Charas was in or onboard the truck. This is so
notwithstanding the existence of other facts that could be said to point in the
opposite direction. For example, the truck sped awby instead of stopping when
signalled to do so, and the secret campartment was located near the petrol
tank. These facts can reasonably raise a suspicion. However, suspicion is not
proof, and it is certainly not proof beyond reasonable doubt. (Emphasis added).
(xi) Rehmatullah
vs The State, 2011 YLR 2477:
(a) A passenger bus was stopped and the driver
and another person were apprehended both of whom disclosed that charas was
stored by them in a secret cavity of the bus.
(b) The Sindh High Court at Karachi upheld the
conviction of the driver by concluding that it is a trite proposition of law
that items recovered from the vehicle in possession of the driver are presumed
to be in his control and knowledge and that in case the drugs were secured from
the possession of an accused then it is normally believed that he has direct
relationship with the drugs and the burden of proof lies heavily on him.
(c) On the other hand, the other person was
acquitted. The Court noted that although the prosecution alleged that charas
was recovered from the secret cavities of the bus on the disclosure of both the
accused but it failed to prove the connection of the second accused with the
crime as not a single word has been said as to whether he was a cleaner or a
passenger. The Court also noted that although PW-1 admitted that there were
other passengers also on the bus neither inquiry was made from such other
passengers nor any record kept about them.
(xii) Jangi Khan
vs The State, 2012 P.Cr.L.J. 109:
(a) Narcotics were recovered from the secret
cavities of a coach in which there was a driver and a conductor whereas a third
person escaped during interrogation.
(b) The Baluchistan High Court dismissed the
appeal of the driver and conductor by holding that the argument that they were
not owner of the bus has no force and that since recovery was made from the
secret cavities affected on the disclosure of both the appellants the
disclosure was within the ambit of Article 40 of the Qanun-e-Shahdat Order,
1984. The Court held that since they were the driver and conductor of the bus
they were under legal obligation to have satisfied the conscience of the Court
justifying the inference that neither of them was aware of concealment of
contraband on the bus.
(xii) Bakht Gul
vs The State, 2012 P.Cr.L.J. 338:
(a) Charas and opium were recovered
from the trunk of a taxi on Search by police officials. All five occupants
including the driver were apprehended. On appeal before the Supreme Court, the
driver pleaded that he was only a driver of a taxi and not the owner, thus he
had no control over items in the vehicle’s storage compartment and had he been
aware of the contraband, he would have concealed it. Additionally, it was
contended that the contraband might belong to a passenger who hired his
services.
(b) However, the Supreme Court, while
upholding his conviction, ruled that while driving, the driver assumes
responsibility for the vehicle, and therefore anything lying in the vehicle
would be under his control and possession.
(c) With regard to
the remaining occupants who were allegedly found sitting in the car as
passengers, the Court explained that mere presence of the appellants in the
vehicle would not involve them in the case, and that the prosecution is
required to produce evidence to show that the occupants had joint possession
and control of the vehicle or that they had any concern or dealt with the
property in any manner. This obligation arises particularly when the narcotics
substance is concealed or hidden from other persons in the vehicle, such as in
the trunk.
(d) It was also noted
that if the contraband was lying open within the view of the remaining
occupants or they were aware of its placement, then they would be required to
explain their position in terms of Article 122 of the Qanun-e-Shahadat Order,
1984. Failure to do so would result in their involvement in the case being
considered proven. The Supreme Court acquitted the remaining occupants since
the contraband was not within their view and they had no knowledge of its
placement.
(xiv) Muhammad
Saleem vs The State, 2013 P.Cr.L.J 1837:
The owner, driver, second driver and
conductor of a bus were apprehended who pointed out several boxes and sacks
containing charas and opium lying openly on the roof of the bus and as such
their appeals were dismissed by the Sindh High Court at Karachi.
(xv) Hussain Shah vs The State,
PLD 2020 SC 132:
(a) Charas was recovered in this case from a
secret cavity of a vehicle which was intercepted by the raiding party. The
conviction of the driver was upheld by the Supreme Court whereas the conviction
of the cleaner/helper was set aside.
(b) The Supreme Court observed that the
prosecution witnesses deposing about the alleged recovery were public servants
who have no ostensible reason to falsely implicate the driver. On the other
hand as ostensible far as the co-accused was concerned who according to the
prosecution was a cleaner and helper the Supreme Court held that it is settled
by now that if the prosecution fails to establish conscious possession or
knowledge with regard to presence of narcotics in the secret cavity of the
vehicle then the passenger cannot be convicted solely on the basis of his
availability inside the vehicle at the relevant time.
(xvi) Fayaz vs. The State, 2022
MLD 1452:
(a) Charas was found in two bags on the roof
of a passenger bus/coach. On inquiry the driver and conductor of the bus
disclosed that the bags belong to certain passengers.
(b) The Sindh High Court observed that the
charas had not been recovered from exclusive possession of the accused
passengers and that investigation was defective on account of failure to
examine the bus driver and its cleaner so also the passengers who were
travelling in that bus to establish the ownership of the accused with regard to
the bags lying on the roof of the bus. Thus the passengers were acquitted on
appeal.
19.
The principles that can be gleaned from the above case law can be summarized as
follows:--
(I) Ownership of narcotics is not necessary
for the offence of ‘possession’.
(II) The prosecution has to first establish the
fact that the narcotic drugs were secured from the ‘possession’ of the accused.
(III) Possession must be conscious.
(IV) ‘Conscious possession can be inferred from
the circumstances.
(V) ‘Conscious possession’ can be established
if it is proved that the accused was knowingly in possession of the article
even if he was not conscious of the nature of the substance he is in possession
of.
(VI) Presumption regarding driver or conductor of
a public vehicle depends upon the circumstances of each case as to whether the
driver or conductor is conscious of the contents of goods he is transporting or
carrying as luggage of a passenger.
(VII) An accused can be said to have possession of prohibited drugs
onboard the conveyance if either:
(i) the
drugs were in actual physical possession of the accused or
(ii) the facts admitted or proved at trial establish beyond
reasonable doubt that the accused knew or must be regarded as having known that
the drugs were in or onboard the conveyance.
(VIII) Driver is in-charge of the vehicle therefore it would be under his
control and possession and whatever articles lying therein.
(IX) Persons in charge of a vehicle for a long journey must be saddled
with the necessary knowledge and awareness with regard to the vehicle and its
contents which cannot be rebutted by a simple denial and claim of ignorance.
(X) Driver
is presumed to be in conscious possession of contraband discovered from secret
cavity unless he can show that they were put there by the owner of the vehicle
without his knowledge
(XI) Mere presence in the vehicle not sufficient to involve other
occupants in the case by itself. Prosecution is required to produce evidence to
show that the occupants/passengers had joint possession and control of the
vehicle or that they had any connection, concern or dealt with the property in
any manner particularly when the narcotics substance are recovered from the
secret cavities or when they are concealed or hidden especially when there are
other passengers onboard. Connection is not established if no inquiry is made
from such other passengers nor any record kept about them.
(XII) If the contraband was lying open within the view of the remaining
occupants/passengers or they were aware of its placement, then they would be
required to explain their position in terms of Article 122 of the
Qanun-e-Shahadat Order 1984. Failure to do so would result in their involvement
in the case being considered proven.
(XIII) Once the prosecution has prima facie established possession
then the burden shifts upon the accused under Section 29, CNSA to prove the
contrary.
(XIV) Where the accused persons are unable to
discharge their burden but it is impossible to determine exclusive possession
of the narcotics lying in open view inside a vehicle occupied by more than one
person yet it cannot be concluded that none was in possession all occupants
including driver and other occupant may be convicted of joint possession.
20.
Thus in order to establish the offence of ‘possession’ under Section 6, CNSA
ownership of the substance is not necessary. In cases of recovery of narcotics
from vehicles, the offence of ‘possession’ is made out if the narcotics are
recovered either from the physical possession of the accused or if facts
admitted or proved through evidence establish that the accused knew or must be
regarded as having known that narcotics were in or onboard the conveyance.
21.
However, possession must be conscious in order to constitute the offence but
conscious possession can be established if it is proved that the accused was
knowingly in possession of the article even if he was not conscious of the
nature of the substance he is in possession of.
22. The
bulk of the case law discussed herein above upholds the conviction of the
driver in cases of recovery made from secret cavities of a vehicle on the
presumption that driver being in charge of the vehicle has knowledge and
awareness of the articles lying in the vehicle. It has been consistently held
by the apex Court that the driver, even if not the owner of the vehicle, is in
control and in possession of the vehicle, hence there is a presumption that he
is in conscious possession of the articles lying in it with the exception of Zahoor
Ahmad Awan (Supra) followed by the Sindh High Court in Haji Inayat
(Supra).
23.
This presumption has also been applied in cases and conviction of drivers
upheld where narcotics were found lying in open view inside the vehicle.
However, for purposes of the case at hand, it is noteworthy that in such cases
where narcotics were found lying in open view inside the vehicle in which there
were other occupants i.e., conductor, helper or passengers all such
occupants were also apprehended. It has also been observed repeatedly that mere
presence in the vehicle is not sufficient to establish the offence of ‘possession’
under Section 6 of the CNSA when the narcotics are recovered from secret
cavities or are concealed or hidden and the prosecution is required to prove
that the accused had joint possession of the vehicle or had some concern with
or otherwise dealt with the narcotics. Where however, contraband is found lying
in plain view or in an open and easily accessible place inside the vehicle all
occupants of a vehicle are required to explain their position in case of
recovery of contraband.
24.
Once prosecution prima facie establishes its case of possession then the
burden shifts upon the accused under Section 29, CNSA to prove the contrary. In
all the cases of recovery of contraband from inside the vehicle lying in open
view that have been examined by me hereinabove the driver and all
occupants/passengers have been convicted of joint possession.
25. In
the case at hand, the narcotics were not found in the exclusive physical
possession of the Appellant/Driver. The narcotics were found wrapped in a cloth
lying openly on the dashboard of the bus. Although the prosecution alleged that
both the Appellant/Driver and the Co-Accused, after some hesitation, disclosed
that charas is wrapped in the black cloth recovered from the bus during the
search, the learned Trial Court has already rightly rejected such evidence in
respect of the Co-Accused/Conductor by holding that joint disclosure has no
evidentiary value.[1]
Neither finger printing was conducted to establish that the Appellant/Driver
dealt with the contraband nor was any other connection established. Admittedly
there were 19 passengers onboard the bus apart from the Appellant/Driver and
Co-Accused/ Conductor yet none of the 19 passengers were questioned nor
implicated in the case. At best the Appellant/Driver could have been charged
with joint possession with one or more of the other occupants/ passengers but
such charge could not be proved without implicating the other passengers. On
the other hand, the Co-Accused/Conductor has been acquitted for lack of
evidence. In such circumstances, the prosecution has failed to establish beyond
a reasonable doubt that the charas recovered from a place inside the bus to
which all occupant/ passengers had access to was in the exclusive or joint
‘possession’ of the Appellant/Driver.
26. For
the aforesaid reasons this appeal is allowed, the conviction and
sentence of the Appellant recorded by the Judge, Special Court (Control of
Narcotics Substance), Islamabad is set-aside and he is acquitted of the charge
by extending him the benefit of doubt. He shall be released from the jail
forthwith if not required to be detained in connection with any other case.
(A.A.K.) Appeal allowed