NADIR KHAN Versus STATE

1. SHAFIUR RAHMAN, J.‑ ‑The two convicts under Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) seek leave to appeal against the judgment of the Federal Shariat Court dated 23‑12-1987 whereby their conviction and sentence were maintained.

2. Mr. Iqbal Mohyuddin, Senior Intelligence Officer of Customs, received information that Heroin smuggled from the Tribal Areas of Khyber Agency was being further smuggled to Karachi by road in a car on 30‑10‑1986. At 6.00 p.m. the suspected car arrived at what is known as 'Karachi More' near Bahawalpur. The car was being driven by Nadir Khan petitioner. Sadiq Jan petitioner was present in it. It was found that Heroin was concealed in the rear seat of the car and six other secret cavities specially made in both the bumpers, both the front mud‑guards, one more near the oil tank and the other near the Silencer Drum. For a proper search the Vehicle was brought to Model Town, Bahawalpur and 49 k.g. of heroin was recovered along with one pistol and 15 cartridges. He sent a report to the Police Station on which a case was registered. Proceedings under Customs Act were also drawn up against them.

3. Sadiq Jan, accused made the following statement with regard to his implication in the case:‑

4. "I was raided at 9.00/10.00 a. m. some miles away from Sadiqabad by the Customs Officials and we were brought to a nearby pump and we were brought to Bahawalpur and were arrested. That place would be 250/300 miles from Bahawalpur. I do not know who is the owner of this car. I was given a job on this car by Tohr Khan of Khyber Agency and he gave me this car. I drove this car in Peshawar for 10/12 days. On the day he gave the car for taking it to Lahore. A messenger brought a message to me at Lahore that Tohr Khan had gone to Karachi instead of coming to Lahore and that I should take the car to Karachi. I was taking the car to Karachi when the raid was made. I did not know as to who had inserted the bags of heroin in the car."

5. Nadir Khan the other petitioner made the following statement:‑

6. "I was duped by Sadiq Jan and brought to Lahore instead of taking me to Swat and the raid was made some miles away from Sadiqabad by the Customs officials. I had no knowledge of any heroin being hidden in the car. I had made the same statement before the Customs officials."

7. The trial Court held both of them guilty on the finding recorded as hereunder:‑

8. "A careful perusal of evidence on the record as well as the statements of both the accused before the Custom Officer Exhs. DA and DB clearly prove beyond any shadow of doubt that both the accused were engaged in transporting the heroin weighing 49 kilograms from Peshawar to Karachi. Both the accused knew that the car P12 contained 49 kilograms of heroin and they were sufficiently compensated for transporting this huge amount of heroin from Peshawar to Karachi. Nadir Khan had told lie by saying that he had been deceived by his co‑accused Sadiq Jan."

9. They were both convicted under Articles 3 and 4 of the Order and sentenced to life imprisonment and fine of Rupees one lac each or to undergo 5 years R.I. They were also awarded 30 stripes.

10. On appeal the Federal Shariat Court excluded from consideration the statements made by the petitioners before the Customs Officer. The Federal Shariat Court also excluded the statements of Khalid Hussain and Tufail Hassan, the two public witnesses of the recovery. In spite of all this after holding them guilty under Article 3 of the Order and considering that the ultimate aim of the Islamic laws is prevention, correction and reformation, and finding the appellants young and first offenders proceeded to reduce their sentence as 10 years R.I. each, with whipping number 20 stripes and a fine of Rs.5,000 each or in default to suffer further R.I. for six months each.

11. By two separate petitions leave to appeal is sought

12. The learned counsel representing the petitioners has taken up the plea that joinder of the charges under Articles 3 and 4 has prejudiced the petitioner at the trial, that in view of the decisions of this Court in Said Shah, Muhammad Altaf and another, Muhammad Ejaz v. The State P L D 1987 S C 288, Muhammad Shah v. The State (PLD 1984 S.C.278), Nazir Hussain v. The State (1971 S C M R 404) and Zahiruddin v. The State P L D 1988 FSC 29), none of the petitioners could be said to have the knowledge of narcotics being present in the vehicle and convicted on that presumption alone. They have given a plausible explanation. It has further been contended that at the most they could be held to be the carriers for which the more lenient view should be taken as in the case Ashfaq Hussain v. the State 1988 M L D 1638. The other contentions were that samples were not taken from each of the 49 bags recovered nor was there any evidence to connect the samples taken with the report of the Chemical Examiner because the official who took it to the Chemical Examiner had not been examined and even the report of the Chemical Examiner gives no reason and it could not be availed of and it was not an original but a photo stat copy.

13. 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. .4s 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 probabilities or the presumptions are all dependent on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it. As regards the lenient treatment to be afforded to the petitioners as mere carriers. It is one of the maxims of the criminal law that a confessing accused is to be dealt with leniently. There are reasons for it because though belated such a confession assists the administration of justice, lends credibility to the prosecution and helps locating the persons who have greater responsibilities in the matter than the criminal himself. But 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 being a helpless destitute carrier. There is no principle on which such a mitigation can be claimed after the mitigation allowed by the Federal Shariat Court.

14. It was not necessary to take samples from every one of the packets and the required evidence has been produced to connect the report with the sample notwithstanding the omission to produce the carrier of the sample.

15. The absence of the original report of the Chemical Examiner has also been explained satisfactorily because there was another prosecution case pending in the Customs Court where that original report had been placed. If at the appropriate stage the petitioners had asked for it or objected to the photo-stat copy the original could have been produced and seen by every one who doubts. In the absence such a ground cannot be the basis of interference.

16. Hence there is no other ground which may require further examination. Leave to appeal is, therefore, refused.

17. M. A. K./N‑90/S Leave refused.