SAID SHAH Versus THE STATE

1. MUHAMMAD AFZAL ZULLAH, CHAIRMAN.‑These three appeals through leave of this Court are directed against judgment dated 8‑4‑1985 of the Federal Shariat Court ; whereby the. appellants' convictions and sentences for offence under Article 3 of the Prohibition (Enforcement of Hadd) Order (IV of 1979), were upheld and their appeals were dismissed. The convictions and sentences are as follows

2. "Said Shah to R. 1. for 5 years, whipping numbering 20 stripes and to pay a fine of Rs. 5,000 or in default to undergo S. I. for 5 months. Muhammad Altaf and Muhammad Ejaz were each sentenced to R. I. for 3 years, whipping numbering 5 stripes and to pay a fine of Rs. 1,000 or in default to undergo S. 1. for one month."

3. Brief facts for the purpose of these appeals are that Suzuki Van No. ADA‑3453 which was being driven by Altaf appellant with Ejaz appel lant acting as his conductor, was checked by the police on the information that the appellants were engaged in illegal transport of liqu.3r. As a result of this raid more than 400 bottles of liquor packed in eight wooden crates were found in the Van. The third appellant, namely, Said Shah was also then in the Van, but on seeing the police he had ran away. His arrest took place subsequently. Sample taken from the wooden crates on chemical analysis was found to be liquor.

4. At the trial, the fact that liquor in the aforementioned quantity was found in the Van was not seriously disputed. The plea of Altaf and Ejaz appellants was that they did not know that the wooden crates contained bottles of liquor and that Said Shah who owned them had represented that they contained soap, therefore, they had no knowledge with regard to the contents thereof. Said Shah on the other hand, pleaded that the "liquor" did not belong to him and that it belonged to one Sultan Mahmood. He was arrested by the police but was not proceeded against in this case because h: had already been convicted and sentenced in another case and that on account of this reason he (Said Shah) was proceeded against as scapegoat.

5. Both the learned Courts below gave concurrent findings against the appellants to the effect that they were in possession of the liquor and were found in the act of transporting the same. Therefore, they were found guilty under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, and they were accordingly sentenced as noted above.

6. Leave to appeal was granted to examine whether there was enough evidence to hold that the appellants were in possession of and were trans porting the liquor in question ; whether it could be treated as a general defence in all cases like the present one, that the accused being driver or conductor of a public carrier, they do not incur any criminal liability if they are not aware of what a passenger has placed in the vehicle when travelling therein ; and, whether they have any additional responsibility with regard to the contents of the luggage transported through the vehicle and that, whether it is necessary for the Court to enquire into the question as to who owned the intoxicant found in a public carrier.

7. The perusal of the provisions contained in Articles 3 and 4 of the Prohibition Order it has to be straightaway observed that the findings relating to the ownership of the intoxicant would not be necessary fort proving an offence/s under those provisions ; though, if evidence is led in, that behalf it may by rclevant for purpose of determining the question relating to the culpable acts specified therein. Accordingly, the plea of Said Shah or for that matter the other appellants that they did not own the liquor would not make any difference.

8. In so far as the plea of Muhammad Altaf and Muhammad Ejaz appel lants that although the crates contained the liquor were found in their vehicle, they were not aware of the fact that they contained liquor, if Article 3 is strictly construed, would not be of any benefit to them because,, it is, amongst others, the transport of the intoxicant which has been made culpable. And it cannot be denied that in fact liquor was being transported in the vehicle which was in the control and possession of these two appel lants. But in reality what the law intends is that the culprits should be found, amongst other acts, to have transported or possessed the intoxicant with consciousness about the commodity that it is an intoxicant. It will, however, depend upon the circumstances of each case as to whether the driver or conductor of a public vehicle is conscious regarding the con tents of goods he is transporting or carrying as the luggage of a passenger.

9. Two cases have been noted in the leave granting order. They are Nazir Hussain v. The State ( 1971 S C M R 404 ) and Muhammad Shah etc. v. The State ( P L D 1984 S C 278 ). In the case of Nazir Hussain the driver of the vehicle was acquitted while in the second case (Muhammad Shah etc.) he was convicted and the passenger (Muhammad Shah) who was in the position of Said Shah in the present case. was acquitted. These cases illustrate the rule that the finding of guilty or otherwise in cases like the present one would depend upon the circumstances thereof. It is not necessary to lay down any hard and fast rule as to the presumptions regarding the driver or conductor of a public vehicle.

10. Learned counsel for Altaf and Ejaz appellants contended that although technically speaking, they were found transporting the liquor but they were not aware that the crates which Said Shah had placed in the vehicle con tained liquor and not soap as he had represented to them. He has relied on some admissions made by the recovery witnesses to show that these appellants were not conscious about the contents of the crates ; that there was no label on the crates that they contained liquor ; that to an outsider it was not possible by seeing the crates to discover as to what they con tained ; that these appellants had not tried to run away as was done by Said Shah ; and lastly, that when checked they had then and there stated that the crates belonged to Said Shah.

11. The learned Courts below after perusal of evidence gave coucurrent findings of fact that these appellants were aware about the contents of the crates. The admissions relied upon by their learned counsel by themselves in the circumstances of the case, in our view, are not enough to set aside that finding. It needs to be noticed that these appellants had made inquiries with regard to the contents of the wooden crates and took up a plea that they belonged to Said Shah. Whether or not Said Shah made a representation that the crates contained soap and whether or not the appellants should, in the circumstances of this case, keeping in view the bulk and nature of the crates, have accepted the representation that they contained soap, are questions of fact. The same having been concluded by concurrent to findings of fact by the two learned Courts below, we do not find any justification for interference, in this behalf.

12. The ease of Said Shah is not in any way different. In addition to the circumstances appearing in evidence against the other two appellants, which can also be considered against Said Shah, he had also tried to run away from the spot. Keeping all these circumstances in view, the findings of fact by the learned Courts below against him also are unexceptionable.

13. Learned counsel for Altaf and Ejaz questioned the order of the learned) trial Court confiscating the Suzuki Van, but conceded that it was within the power of the trial Court to do so and that confiscation took place in the' discretionary jurisdiction of the trial Court.

14. In our view the order, in this behalf, does not suffer from any infirmity, legal or otherwise.

15. In the light of the foregoing discussion, these appeals fail and are accordingly dismissed. s. Q./s‑14/s Appeal dismissed.