SHERZADA vs THE STATE

' JUSTICE MAULANA MUHAMMAD TAQI USMANI (MEMBER).---The appellant was convicted by the learned Sessions Judge, Sukkur, vide his judgment dated 29-10-1989 under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to suffer imprisonment for life and fine of Rs,25,000 or in default to further undergo R.I. For one year. His co-accused Murtaza Khan was also convicted under the said Article and was sentenced to the same punishment.

2. The Federal Shariat Court on appeal acquitted Murtaza Khan and confirmed the conviction and sentences of the appellant. Hence this appeal.

3. The allegation against the appellant is that he was driving a car bearing No, LHK/7154 coming from Mardan, which was intercepted by the Excise Inspector Abdul Hayee Dhamara. The Excise party headed by the said Excise Inspector, searched the car and discovered that the car had secret chambers under the rear seat from where seven bags stuffed with heroin were recovered.

Each bag contained one Kg. Of heroin and thus seven Kg. Of heroin were recovered in all from the secret chambers. According to the documents recovered from the car the vehicle belonged to one Lal Rehmat Pathan, who was resident of Hangu, District Kohat, N.-W.F.P. Whose two chldren were also sitting on the back seat of the car. The recovered bags were opened and samples weighing 10 g. Were drawn from each bag. The seven bags were then packed into one large bag and sealed.

The seven samples were also sealed. The accused persons were challaned and sent up for trial.

4. The prosecution examined four material witnesses. PW.1 Ihsan Ahmad, a Suzuki driver and Mashir of recovery memo. Exh. P.8 was declared hostile and did not support the prosecution. The remaining three witnesses, namely, P.W. 2, Allah Jiwaya, PW.3. Abdul Hayee Dhamra and P.W.4 Abdul Ghani, each of whom belonged to the Excise Police force supported the recovery of heroin from the car driven by the appellant.

5. The appellant in his statement under section 342, Cr.P.C. Admitted that he was driving the car intercepted by the Excise party. He also accepted all recoveries from the car except of heroin. In response to the last question put to him he came up with the plea that he was driver of Lal Rehman Pathan, who is owner of the car and father of the two children who were sitting in the car. He was directed by Lal Rehman Pathan to take his son and daughter to Karachi and to leave them at the house of their grandmother. When he reached the National Highway, the Excise party stopped his car. There were two more cars on the road and in one of the cars two persons were sitting in handcuffs. The Excise Inspector demanded money from the appellant which he refused to pay. He then took an envelope from those arrested persons and released them and handcuffed the appellant and his co-accused. He also stated that there were no secret chambers in the rear seat of the car and the secret chambers actually were subsequently built by the Excise party itself. He did not lead any evidence in his defence nor did he appear as his own witness under section 340(2), Cr.P.C.

6. It was vehemently contended by the learned counsel for the appellant that the Chemical Examiner received the parcel of the recovered articles on 7-6-1988 whereas the parcel was sent to him on 3-6-1988. The learned counsel argued that there is no evidence on the record to show where the parcel remained during these four days. No witness was produced to prove the safe custody of the recovered articles and their secure transmission to the Chemical Examiner. He referred to section 510, Cr.P.C. Where the report of the Chemical Examiner has been made admissible in evidence only if it is "duly submitted to him". According to the learned counsel this condition can be fulfilled only when it is proved through the witnesses that the recovered article has been in a safe custody up to the time when it was delivered to the Chemical Examiner. He referred to a judgment of the Federal Shariat Court Mst. Sultan Zari v. State (1986 PCr.LJ 1723) and some Indian cases where the lack of evidence to prove the safe custody has been taken as a factor in favour of the accused.

7. We paid due attention to this argument of the learned counsel. The investigating officer in this case, who appeaared as P.W. 3 stated that "he sealed the seven bags and despatched them to the Chemical Examiner, and it is mentioned in the report of the Chemical Examiner that all the seven packets were received by his office through Abdul Fatah, Excise Constable with seals perfect and as per copy sent." The intervening period between despatching and receiving is four days which is not abnormal keeping in view the practice of the offices in our time. Now the production of the person who transmitted the packets is only a formal technicality, and its non-observance can benefit an accused only when he takes specific plea that something was recovered from his possession, but it was not an incriminating article, but where he denies the recovery, the case of the prosecution cannot be demolished on this technical ground alone. The same view was adopted in the case of Tasleem Khan v. State (PLD 1990 SC 1088).

8. 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 meaning 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 Cfrom section 26 of that Order where certain other provisions of the P.P.C. Have been made applicable.

9. The third point raised by the learned counsel was that the offence under Article 4 of the said Order could not be proved against the appellant unless it is shown that he had the conscious possession of the contraband article. Here the heroin was recovered from the secret chambers of the back seat of the car and the possibility cannot be ruled out that the heroin was put in those chambers by the owner of the car without its being in the knowledge of the appellant as a driver.

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.

The learned counsel lastly submitted that the sentence awarded to the appellant is too harsh in the circumstances of the case. He has been awarded the maximum punishment while he is admittedly a driver of the car and being a carrier only he should have been given a lesser sentence. He referred to a number of cases decided by this Court where the sentence has been reduced on this ground. We are inclined to accept this contention of the learned counsel and to reduce the sentence from life imprisonment to ten years R.I. With this modification in sentence the appeal is dismissed. The appellant, however, shall get the benefit of section 382-B, Cr.P.C.

' Sentence reduced.