RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of Criminal Appeals Nos. 277 of 2003 and 299 of 2003 as they arise out of a common judgment.
2. The present appeals are directed against the judgment dated 5-9-2003 passed by the Special Court Control of Narcotic Substances Karachi Division in Special Case No,103 of 2002 State v.
Muhammad Pervaiz Khan and another. Under the impugned judgment, the learned Judge convicted the appellants under section 9-(c) of Control of Narcotic Substances Act 1997 (hereinafter referred to as the Act of 1997) and sentenced each of them to suffer imprisonment for six years and fine of Rupees one lac or in default thereof to suffer R.I. For six months with benefit of section 382-B, Cr.P.C.
3. The facts giving rise to the present appeals are that on 2-3-2003 at about 11-30 a.m. The complainant Inspector Khaliduddin of Police Station A N F, his subordinate staffs and Mashirs S.-I, Jahangir Khan and P.C. Shamraz Khan left the police station for the purpose of patrolling. At about 12.30 p.m. They reached nursery railway crossing, Block 6 PECHS Karachi where the complainant received spy information that two persons on a motorcycle possessing opium would come from nursery side therefore the complainant started checking the motorcycles. At about 1-00 p.m., they were present at the railway crossing when the required motorcycle came from nursery side on which two persons were sitting. When the motorcycle reached near the police party, P.W. Shamraz Khan identified one person to be appellant Yousif Lassi who seeing the police party, after jumping from the motorcycle thrown a packet and ran away. Whereas the appellant Pervaiz who was driving the motorcycle was apprehended. From the search of the appellant, Pervaiz 2 envelopes were secured containing 1900 grams of opium. The packet thrown by the appellant Yousif Lassi was opened that was having two packets which contained two Kgs of opium. Out of each packet, 20 grams of opium were drawn for chemical analyser's examination and report. The appellant Pervaiz was arrested, motorcycle was secured and such Mashirnama was prepared. The four samples and the remaining property were sealed separately. The property and the appellant Pervaiz were brought to the police station where the F.I.R was lodged. After completing the usual investigation, the appellants were challenged in the Court where they were tried and convicted as mentioned above under the impugned judgment.
4. We have heard the advocate for the appellants, Special Prosecutor and with their assistance gone through the evidence. From the evidence, we find that the prosecution examined three witnesses namely P.W.1 Shamraz Khan, P.W.2 Raja Azmat and P.W.3 Khaliduddin Khan. P. W 3 and P W.1 are Complainant and Mashir whereas P.W.2 is a police official who arrested the appellant Yousif Lassi. The evidence of P.W.3 and P.W.1 reveals that on at 2-3-2002 at 11-30 a.m., the P.W.3, P.W.1 and other police officials left the police station for the purpose of patrolling duty. They reached the Railway crossing of PECHS where the complainant received spy information that two persons possessing opium would cross the Railway crossing on motorcycle No,KAN-4573. Therefore, the complainant and his staff started checking the motorcycles. At about 1.00 p.m., they saw the required motorcycle coming from nursery side. When the motorcycle reached near the police party one of the person sitting on the rear seat, jumped from the motorcycle and after throwing a packet ran away from there. P.W.1 identified the said person to be the appellant Yousif Lassi.
Whereas the appellant Pervaiz who was driving the motorcycle was apprehended. From the personal search of appellant Pervaiz an envelope was secured which contained two packets of opium weighing 1900 grams. Whereas the packet thrown by the appellant Yousif Lassi was opened which also contained two packets of opium weighing 2 kg. 20 grams of opium were secured from each packet for chemical analyser's report. The said packets were sealed. The remaining property was also sealed. The appellant Pervaiz was arrested, motorcycle was secured and such Mashirnama was prepared. The property and the appellant Pervaiz were taken to the police station where the F.1.R was lodged. The evidence of both the witnesses is consistent on each and every aspect of the case. They were cross-examined at length by the appellants but nothing came on record to discredit their evidence. There evidence is supported and corroborated by chemical analyzer report Exh. P14 that shows that the material lying in each of the four sealed packets was opium.
5. The learned advocate for the appellants has challenged the evidence of witnesses on the ground that there are material contradictions in their evidence. He has pointed out the contradictions on the points of distance of standing the spy, weights with which the property was weighed, writing on the packets and the name of police official who drove the motorcycle to the police station after its recovery. The above contradictions are minor in nature, which have not changed the evidence of prosecution witnesses, nor the improvements have materially changed the version taken in the F.1.R. Such type of contradictions cannot be termed as major contradictions. These contradictions usually occur in the evidence when the same is recorded after a lapse of one year of registration of the case (as in the present case). As such the contradictions can be ignored safely.
6. The learned advocate for the appellants has mainly argued that the joint trial of both the appellants is illegal as both the appellants were found in possession of opium which is an independent offence and cannot be termed as committed in a series of same transition as required by section 239 of Cr.P.C. He has relied upon Md. Mosaddar v. The State (PLD 1958 SC 131), Noor Muhammad v. State (PLD 1964 SC 120), Keshavlal v. Emperor (AIR 1944 Bombay 306) and Ghulam Farooq v. State (2000 M LD 1504). On the other hand the learned Special Prosecutor has stated that the appellants were not only found in possession of the opium but they were transporting the same on a motorcycle therefore the offence of transporting the opium was committed with the conspiracy. Association and abetment of each other and the offence of possessing opium and transporting the same were committed in the series of same transaction therefore the joint trial was permissible under the law. He has referred to sections 6, 7, and 14 of the Act 1997 and sections 233, 235 and 239 clauses (a) (b), (c), and (d) of Cr.P.C.
7. We have given due consideration to the arguments and have gone through the relevant provisions of law and the case law cited at the bar. A perusal of sections 233, 234, 235, and 239, Cr.P.0 show that they deal with the separate and joint trials. Section 233, Cr.P.0 deals with general rule on the subject which provides that for every distinct offence of which a person is accused there shall be a .Separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236, and 239. Exception to the general rule mentioned in section 234 permits three offences of same kind committed within the space of twelve months to be tried at one trial. Some more exceptions to the general rule have been mentioned in section 235(1) which shows that more offences than one committed by the same person may, be tried at one trial if they were committed in one series of acts so connected together as to form the same transaction. Section 236 discloses another exception to the general rule of separate trial for each offence, which is not relevant for the purpose of present case. Section 239 discloses case of joint trial of different persons and different charges. According to clause (a) of section 239, Cr.P.0 persons accused of the same offence committed in the course of same transaction can be tried together. This clause deals with the person accused of "the same offence" which means an offence arising out of the same act or series of acts but not to persons accused of "offences of same kind".
According to clause (b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence can be tried together. According to clause (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months are to be tried together. According to clause (d) persons accused of different offences committed in the course of same transaction can also be tried together. The words "different offences" appearing in clause (d) means distinct offences as it conveys the idea of "not being the same" and offences other than "the same offences" or "offences of same kind". The clauses (e) to (g) of section 239, Cr.P.0 are not relevant for the purpose of the present case.
8. A perusal of above provisions of law would further reveal that the words "same transaction" appearing in subsection (1) of section 235 and clauses (a) and (d) of section 239 have not been defined in the Criminal Procedure Code. As such the Court is required to give finding whether in a given set of facts the same comes within the ambit of words "the same transaction" appearing in sections 235 and 239, Cr.P.C. Reference is invited to the cases of Muhammad Mosaddar and Noor Muhammad (supra). It will be noticed that there is difference of language between the sections 235 and 239 in which the words "same transition" appear. The significant difference in the language in the above provisions is because under section 235, Cr.P.0 for bringing the case of joint trial, the offences must be committed by the same person in one series of facts so connected together as to form the same transaction. Whereas under section 239(a) and (d), Cr.P.0 the requirement is that, the persons who are to be tried together should be accused of same offence or of different offences committed in the course of the same transaction. In order to justify a joint trial under section 239(a) and (d) the allegation must be of the commission of different or same offences in the course of same transaction. It is possible that after recording the evidence the Court reaches a conclusion that no offences were committed at all or that the offences were not committed in the course of same transaction. Any such finding in our view would not affect the legality of the trial.
The said view is supported by a decision given by Privy Council in Banulal v. Emperor, AIR (25) 1938 PC 130. The hon. Privy Council after discussing the above provisions of law dealing with joinder of persons and charges at one trial observed as under:- "The Common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it. So far seems clear; that the point of difficulty which has strenuously argued in this appeal and relates to the point of time in the proceedings at with the condition prescribed by the clause must be fulfilled. To put it more exactly, is it enough if the conspiracy is to be found in the accusation or must it be found in the eventual result of the trial? Is the relevant point of time that of the accusation, or that of the eventual result? For the former view there is an unbroken series of authorities in the Indian Courts. But the matter has not until now come before the Judicial Committee and must all be decided by them. It is a question of principle, or, perhaps more correctly, construction. Their lordships are of the opinion that the view adopted in the India is correct, as the High Court have held in the present case. The clause deals with the three matters, accusation, charge, trial. It says nothing about the verdict. The condition is expressed in the word "persons accused of different offences, etc". It does not say "rightly accused" or "accused and convicted". It is on the basis of what appears on the face of the accusation that the Court may proceed to charge and try.
The accusation is necessary anterior to the exercise rf the discretion to charge and try. These are stages subsequent to the accusation.
9. In the present case the accusation was that the appellants possessing opium would come on a motorcycle from nursery side as such the appellants were transporting the opium on a vehicle.
10. It will be advantageous to examine section 6 of the Act 1997 which says:- "6. Prohibition of possession of narcotic drugs etc.--No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substances 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." (Underlines are ours).
11. Violation of provisions of section 6 is punishable under section 9 of the Act 1997.
12. From the above provisions of law it is clear, that possession or transporting of opium is an offence punishable under section 9 of the Act 1997. In the present case, the complainant received spy information that two persons possessing opium would come on a motorcycle from nursery side. In pursuance of the said information, the appellant Pervaiz was arrested who was driving the motorcycle whereas the appellant Yousif Lassi after jumping from the motorcycle and throwing a packet containing opium ran away. The weight of the opium secured from the possession of appellant Pervaiz was 1900 grams and opium weighing 2 kg were secured from the packets thrown by the appellant Yousif Lassi. The weight of the opium was such which cannot be used for the purposes mentioned in section 6 of the Act 1997. Apparently the for possessing such huge quantity of opium was to sell the same or deliver it to somebody else. For that, purpose they were carrying the opium to deliver it to somebody else or to shift it to some other place on the motorcycle.
13. Appellant Perviaz was driving the motorcycle. It is a private vehicle and a two wheels transport.
The second person cannot sit on the motorcycle without the permission of the driver of the motorcycle. Therefore, the appellant Pervaiz must had allowed the appellant Yousif Lassi to sit on the motorcycle, who was holding a packet of opium, which was subsequently thrown, by him. Both the appellants are related inter se therefore, in such a situation the offence of transporting the opium was committed in conspiracy, abetment and association with each other. The said offence was committed in series of same transaction of possessing the opium. The opium could not have been transported unless the same would have been in possession of the persons who were transporting the same. Thus in the circumstances of the present case the joint trial of the appellants was not illegal.
14. After considering the material available on the record we are of the considered view that the prosecution have proved their case against E the appellants. The trial Court has rightly convicted and sentenced the appellants. Consequently the appeals are dismissed.