RAHMAT HUSSAIN JAFFERI, J.--The present appeal is directed against the Judgment dated 19-6- 2003 passed by the Special Judge Control of Narcotic Substances, Karachi Division, in Special Case No,67/2002 (State v. Karl John Joseph and another). Under the impugned judgment the learned Judge convicted the appellants under section 9 (c), Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act, 1997") and sentenced each of them to suffer imprisonment for life and fine of Rs,100,000 or in default thereof to suffer R.I. For 6 months more. The benefit of section 382-B, Cr. P.C. Was extended to them.
2. Brief facts giving rise to the present appeal are that on 31-1-2002 the complainant Inspector Ghulam Abbas of Anti-Narcotic Force (hereinafter referred to as "A.N.F.") was posted at police station A.N.F. Clifton, Karachi. On that date he received information from his superior officials that a couple of German Nationals possessing huge quantity of narcotic substances were present in a Boat No, 6989 anchored in the sea at Marina Club, Karachi. On receiving such information, the complainant along with his subordinate staff including Mashirs Constable Shahid Raza and Constable Muhammad Ibrahim formed a raiding party and left the Police Station at 9-00 p.m.
3. They reached at Marina Club where they contacted its administration and inquired about the boat with the German Nationals. After obtaining the required information and with the permission of administration of Marina Club, they went to the required boat in another boat where they found a male and female German Nationals. The boat was having No,6989 and name as "TALASA". On inquiries, the male person disclosed his name as Karl John Joseph and the lady disclosed her name as Sosanne Gertraude Denecke. The police party inquired from them about the availability of narcotic substances in the boat to which they told the police that there was no narcotic substance in the boat. Thereafter the police started searching the boat. Two persons of Marina Club were also with the police who were requested to act as Mashirs but they declined, therefore, in presence of A.N.F. Officials viz. Constable Shahid Raza and Constable Muhammad Ibrahim they searched the boat.
4. During the search, they found a cardboard Carton lying inside the Cabin under the clothes. On examination of the cardboard, 21 slabs of Charas. Each slab weighing 1 kg. Were lying in it. The total weight of the Charas was 21 kgs. The complainant took out 110 grams of Charas from each slab as a sample for the purpose of chemical examination. The 21 samples were sealed separately. The cardboard carton was also sealed. From the further search of the boat unlicensed weapons, such as, pistol, two guns and bullets were secured. From the personal search of appellant Karl John,.
Passport, German Identity Card and five Credit Cards were secured. The appellant Sosanne produced her Passport, German Identity Card, eight Credit Cards, cash and other articles from her purse. The appellants were arrested and such Mashirnama was prepared. A list of the articles in the Boat was also prepared. The complainant party remained in the boat from 10-00 p.m. To 2:00 a.m.
In the night. The appellants and the property were brought to the police station where the F.I.R. Of this case was lodged. A F.I.R. Under section 13(e), Pakistan Arms Ordinance 1965 was also lodged against the appellant Karl John. The samples of Charas were sent to Chemical Analyser for examination and report. The report was in positive. After completing the investigation, the appellants were challaned in the Court.
5. On 17-4-2002, a charge for offences defined under sections 6,7, and 8 punishable under section 9(c) and offence defined under section 14 punishable under section 15 of Act, 1997 was framed against the appellants but they pleaded not guilty.
6. In support of the case, the prosecution examined two witnesses viz. Complainant Inspector Ghulam Abbas and Mashir Shahid Raza. They produced the F.I.R., Mashirnama of recovery and arrest, inventory of articles, Chemical Analyser report and Mashirnama of seizure of documents.
They supported the case.
7. The appellants in their statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Karl John filed a written statement in which he stated that he and his wife appellant Sosanne were on world Travel on his boat/yacht "TALASA" and visited Pakistan.
On 31-1-2002 they finished their paperwork to leave the country on 1-2-2002 from Immigration, Police & Customs departments. They went back to Marina Club where at about 7:30 p.m. The Club Manager Shahid Baig introduced them to Inspector Ghulam Abbas of A.N.F. After some discussion.
Inspector Ghulam Abbas threatened them to pay him US $ 20,000 else he would book them in a Narcotic ease but he refused to pay him the amount. Therefore, he. And his wife were taken to his boat where they saw about 20 persons already available there. Out of them, some were in uniform and the others were in civilian clothes. He and.His wife were searched and the Inspector took their papers, cash, jewelry, passport and Credit Cards into his possession. Thereafter they were brought to A.N.F. Police station where the Inspector constantly insisted on his illegal demand but he again refused and asked him to return their valuables. On the third day of the incident, they were put into a room and asked to stand behind a table that displayed Charas where their photographs were taken by force. On 3-2-2002, they were produced before a Magistrate wherefrom his wife was sent to Jail and he was kept in police station until 7-2-2002. During his detention, the inspector was repeatedly trying for bargaining to which he constantly refused. On 4-2-2002, the Inspector got his signature on a paper under duress and pressure. The contents of which he did not know. He further stated that he and his wife did not commit the alleged offence. They were innocent and have been falsely involved by the Inspector in this case for ulterior motives. The lady appellant claimed to be innocent.
8. The appellants wanted to examine themselves on oath and Shahid Baig of Marina Club as their defence witness. Subsequently vide their statement Ex 13 they did not examine themselves on oath and their defence witness.
9. After considering the material available on the record and hearing the parties counsel, the learned trial Judge convicted the appellants as mentioned above under the impugned judgment.
The appellants were dissatisfied with the said judgment; therefore, they have preferred the present appeal.
10. We have heard the Advocate for the appellants, Special Prosecutor for A.N.F. And perused the record of this case very carefully.
11. Learned Advocate for the appellants has stated that there are material contradictions in the evidence of prosecution witnesses; that the police had not associated any private person in the investigation and violated the provisions of section 103, Cr. P. C.; that no proper Mashirnama of arrest and recovery was prepared; that the provisions of sections 20 and 21 of the Act, 1997 were violated as before the search of yacht no search warrant was obtained from the Court; that the property was not sealed properly at the place of the incident; that the appellants have been falsely involved in the case as they failed to pay illegal gratification to the complainant.
12. On the other hand the learned Special Prosecutor has stated that the contradictions pointed out by the learned Advocate for the appellants are minor in nature which can be ignored; that proper Mashirnama was prepared at the place of incident; that information with regard to the presence of narcotic substances was received very late after the Court hours therefore, the search warrant as required under sections 20 and 21 of the Act, 1997 could not be obtained; that there is no enmity between the P.Ws and the appellants; that the property was properly sealed at the place of the incident and the report of Chemical Analyzer is in positive; that the oral evidence is reliable and trustworthy; and that the provisions of section 103, Cr. P. C. Are not applicable by virtue of section 25 of the Act, 1997. He has further stated that the prosecution have proved their case against the appellants beyond any shadow of doubt. He has supported the impugned Judgment.
13. We have gone through the evidence with the assistance of learned Advocate for the appellants and found that the case is based upon the evidence of two witnesses viz. Complainant Inspector Ghulam Abass and Mashir Shahid Raza. Their evidence reveals that on 31-1-2002, the complainant received information through his superior officers that in the Boat bearing No,6989 anchored in sea at Marina Club a couple of German Nationals were available who were possessing narcotic substances. On the receipt of the said information the complainant along with Mashirs and 10 other subordinate staff left the police station A.N.F. At 9:00 p.m. And went to Marina Club from where they obtained the information about the required boat through the administration of Marina Club. Then the raiding party went to the boat in another boat where the complainant found both the appellants present there. The boat was searched and a cardboard carton containing 21 slabs, each slab weighing 1 kg. Of Charas, was lying there. The same was secured. The complainant prepared samples of 10 grams from each slab and sealed them separately. The remaining property was sealed in the cardboard carton. From further search, the complainant secured unlicensed two shotguns, one pistol and bullets. From the personal search of the appellants, cash and other articles were secured. The yacht was also secured which was handed over to the coast guards. The appellants were arrested and such Mashirnama was prepared. Both the appellants and the property were brought to the police station where the F.I.R. Was lodged and separate F.I.R.
Under section 13(e), Pakistan Arms Ordinance was lodged against the appellant Karl John Joseph only.
14. Both the witnesses were cross-examined at length. The witnesses were asked that on 31-1-2002, at 7-00 p.m. The complainant went to Marina Club where they met with the appellants in presence of Manager Marina Club and the complainant demanded illegal gratification but the appellants refused, therefore, they were threatened to be involved in a case but the witnesses denied the said suggestions. Through cross-examination some clarifications with regard to incident and raid were obtained to which the witnesses gave the proper replies. From the cross-examination nothing has come on record to discredit the evidence of both the witnesses. The evidence of the witnesses is uniform on all the material aspects of the case, except, some minor discrepancies or contradictions in their evidence with regard to the presence of sniff dogs at the time of search, slight variation of 15 minutes in reaching at the boat or sending the property to Chemical Analyser through a particular officer. These minor contradictions and discrepancies have not changed the complexion of the prosecution story or evidence of the witnesses on material points. These minor discrepancies and contradictions do occur in the evidence when the same is recorded after a lapse of 8/9 months of the incident, therefore, the same can be ignored easily.
15. After scrutinizing the evidence available on the record, we are of the considered view that the oral evidence is confidence-inspiring. There are no material contradictions or discrepancies in the evidence, which can adversely affect the evidence of witnesses. We do not find any reason to disbelieve the oral evidence.
16. The learned Advocate for the appellants has attacked the credibility of the witnesses on the ground of contradictions appearing in the evidence as mentioned above by treating them as major contradictions. After examining the evidence of the prosecution witnesses who were subjected to lengthy cross-examination, the above-mentioned few contradictions were appearing in their evidence. One of the grounds for attacking the credibility of witnesses is the contradiction appearing in the evidence. The contradictions are of two types: (1) minor contradictions and (2) major contradictions. Minor contradictions are those contradictions which are incidental and causal in nature, whereas the major contradictions are those contradictions through which the case of the prosecution is changed or story is altered or to make inconformity with the prosecution case or change the issues involved in the case.
17. Through the above-mentioned contradictions, no change in the prosecution story has occurred nor the case of the prosecution has been altered through the latter changes, therefore, the same cannot be termed as major contradictions. The similar point was examined by a Full Bench of this Court in a case of Muhammad Nawaz Sharif v. State, reported in PLD 2002 Kar. 152 in which one of us Wahid Bux Brohi,-J. Was one of the member and author of the Judgment observed at page 245 as under: "Even otherwise, the standard norms of appraisal of evidence would not call for rejecting a wholly trustworthy testimony on the score of some minor contradictions, omissions or improvements. In principle the rule laid down in the authority's Saeed Muhammad Shah v. State (1993 SCMR 550) and Naseer Ahmed v. State (1994 SCMR 995) would call for an adverse interference to be drawn on such account only when the improvements are made to strengthen the case and additions are made to alter the case at a late stage in order to bring it inline with the case of prosecution. As already discussed it is not so in the instant case. The feeble effect of changed versions with which the witnesses were confronted does not detract from the testimonies, which on the whole fit in the circumstances of the case and are credible. The trial Court had also rightly placed reliance on these testimonies, therefore, we affirm its views.."
18. Thus, the credibility of the witnesses has not affected through the above contradictions.
19. The learned Advocate for the appellants has mainly argued that the prosecution did 'not associate private witness in the case as Mashir and violated the provisions of section 103, Cr. P. C.
He has relied upon various Judgments of Hon'ble Supreme Court of Pakistan and High Courts on the proposition that before making a search the Investigating Officer should associate two or more respectable inhabitants of the locality in which the place to be searched is situated. There is no cavil to above proposition of law. For application of section 103, Cr. P.C. The requirement is of two respectable inhabitants of locality in which the place to be searched is situated.
20. In the present case, a boat was searched. There is no evidence available on the record that some other boats were available near the said boat, as the evidence is silent on the said point. The nearest place to the boat was Marina Club. Both the witnesses deposed that two persons of the Marina Club were with them at the time of search. They were asked to act as Mashirs but they declined. The complainant deposed the ground, given by those persons as being from Navy Intelligence, therefore, they were not required to be witness in the case. Thus, the Investigation Officer had tried to associate two persons in the investigation but they declined to do so. The search was conducted at 10-00 p.m. There was no other person available to act as Mashir except A.N.F. Officials. Furthermore, the provisions of section 103, Cr. P. C. Are applicable to the search of a house or a place whereas in the present case the search was made from the boat anchored in sea, as such, the provisions of section 103, Cr. P.C. Were not applicable in such situation. The Hon'ble Supreme Court of Pakistan in a case of State v. Muhammad Amin (1999 SCMR 1367) at page 1371 has observed as under: "It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the High ways or the road sides or the public pl2ces like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports."
21. In the present case, the boat was anchored in sea, which is just like Highway or roadside.
22. It is further pointed out that section 103, Cr. P. C. Lays down only a rule of procedure and not that of evidence, therefore, in certain cases the said rule cannot be strictly followed. It has been held in the case of Rasool Bakhsh v. State (2000 SCMR 731) at page 734 as under: "No doubt, the recovery of the gun was not witnessed by an independent witness as required by section 103, Cr. P. C., but what the said section lays down is only a rule of procedure and not that of evidence. Therefore, when an independent, witness is not easily procurable and the rule laid down by section 103, Cr. P. C. Cannot be strictly followed, evidence of a police officer under such circumstances can be relied upon. Therefore, reliability of such evidence would depend upon the circumstances of each case."
23. Furthermore, in the case of Advocate-General v. Bashir reported in (PLD 1997 SC 408) it was laid down that requirements of section 103, Cr. P. C. Namely that two members of the public of the locality should be Mashirs to the recoveries, is mandatory unless it is shown by the prosecution in the circumstances of a particular case that it was not possible to have two, Mashirs from the public and if however, the statement of the police officer indicated that no effort was made by him to secure two Mashirs from the public, the recoveries would be doubtful. The said rule has been laid down with condition that if no effort was made by police to associate public witnesses to act as Mashirs. But in the present case the investigation asked two employees of Marina Club who were the members of Naval Intelligence Force to act as Mashirs but they declined and other independent witnesses were not easily procurable at the relevant time, therefore, the rule laid down in section 103, Cr. P. C. Cannot be strictly followed in the circumstances of the present case and the evidence of the A.N.F. Officials can be safely relied upon.
24. Apart from the above facts, the provisions of section 103, Cr.P.C. Are not applicable in this case as the same have been specifically excluded from applying in the cases of Act, 1997 by virtue of section 25 of the said Act. Reliance is placed on the case of Fida Jan v. The State (2001 SCMR 36).
25. Learned Advocate for the appellants has contended that before the search was made, the complainant did not obtain search warrants from the Court for the search of the boat, therefore, the police had violated the provisions of sections 20 and 21 of the Act, 1997. He has relied upon the case of State v. Hemjoo reported in (2003 SCMR 881).
26. On the other hand the learned Special Prosecutor A.N.F has stated that information was received very late .When the Court time was over, as immediately thereafter, the raiding party was formed and the K police left the police station at 9-00 p.m., therefore, in such situation requirements of the provisions of sections 20 and 21 of Act 1997 can be dispensed with.
27. We have examined the evidence and found that the complainant did not disclose the time of the receipt of the information received from his superior officer but from the evidence of both the witnesses it is clear that immediately after receiving the information, the raiding party was prepared and they left the A.N.F. Office at 9-00 p.m. From these facts it is clear that the information was received late after Court hours, L therefore, it was not possible for the complainant to have obtained the search warrant from the Court. If they had delayed the raid on the yacht, the same could have been sailed out and the entire efforts of the prosecution would have been frustrated.
Furthermore, in the case State v. Hemjoo (supra) the Hon'ble Supreme Court of Pakistan at page 883 in Para. 4 has observed as under: "An officer not below the rank of Sub-Inspector, Police, or equivalent authorized in this behalf by the Federal Government or Provincial Government in exercise of his power under section 21 of the Control of Narcotic Substances Act, 1997, if he is satisfied that a warrant of arrest as provided under section 20 of the Act cannot be obtained, can enter into the premises without a search warrant and make search on the basis of personal knowledge or on receipt of information of commission of an offence mentioned in the above Act, by any person. In the present case, the Excise Inspector on receipt of information, went to the house of respondent and made his personal search and then by making house search, recovered Charas from the bed room of the house, without satisfying the requirement of section 21 ibid. The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances."
28. From the above position, it is clear that the requirement of search warrant can be dispensed with if the search warrant cannot be possibly obtained from the Court before the search is conducted. In the present case, as already observed, that the complainant received information about the availability of narcotics in the boat after Court hours and immediately thereafter a raiding party was prepared which left the police station at 9-00 p.m. And conducted the raid of the boat at 10-00 p.m. Thus, the A.N.F. Officials could not obtain the search warrant from the Court in the circumstances of the present case, therefore, the complainant was competent to search, the boat without the search warrant. The Honorable Supreme Court of Pakistan in a case of Fida Jan v.
The State reported in 2001 SCMR page 36 after examining section 20 of Act 1997 at page 39 observed as under: "Thus, we are inclined to hold that provisions of section 20 are directory in nature, therefore, its non- compliance cannot be considered a strong ground for holding that the trial of the accused is bad in the eye of law".
28-A. As regards the arguments of the learned Advocate for the appellants that the property wa not properly sealed at the place of incident. It is pertinent to point out that both the witnesses have categorically stated that the samples and the remaining property were sealed at the place of incident. The said fact was confirmed when the property laying in the cardboard carton was de- sealed in the Court. The main objection of the Advocate for the appellants is that there was no seal on the cardboard carton but the seal was affixed on the string tied around the cardboard carton.
This be itself is not enough to discredit the evidence when, particularly, there is no allegation that the slabs lying in the cardboard carton were tampered with. The appellants did not ask any question from any of the witnesses that the property lying in the cardboard carton were tampered with in between the period of sealing of the property and production before the Court. There is no dispute about the number of the slabs and weight as no such questions were put to any of the witnesses. The important point for consideration is sealing of the samples as through the samples the prosecution have proved that the property was Charas as per Chemical Analyzer report. There is no allegation that the said samples were not properly sealed at the place of incident or the seals were broken when the same were received by the Chemical Analyzer. There is also no allegation that the samples were tampered with in between the sealing of the same at the place of incident of receipt of the same by the Chemical Analyzer. The learned Advocate for the appellants has pointed out that the complainant has stated that samples were sent through his subordinate but the report shows that the same were produced by the complainant. The above discrepancy is minor in nature. It is immaterial as to who produced the samples before the Chemical Analyser.
The question is whether the Chemical Analyser received the samples duly sealed and without any tampering or not. Thus, arguments of the learned Advocate for the appellants have no force at all.
29. The defence taken by appellant Karl John as mentioned by him in his written statement is that on 31-1-2002, he and his wife were present in Marina Club where at about 7-00 or 7-30 p.m. The Club Manager Shahid Baig introduced them to the complainant and after discussion, the complainant demanded illegal gratification for allowing them to leave the country otherwise they would be involved in a Narcotic case but the appellants refused, therefore, the complainant took the appellants to the boat where the appellants found 20 persons, out of them some were in uniform and some were in civilian dress. Thereafter they were searched.
30. From the above statement it is clear that the appellant Karl John has admitted the raid on the boat by the A.N.F. Officials on 31-1-2002 but the difference between the case of the prosecution and appellant Karl John is of time, and recovery of charas from the boat. The appellants stated that they would examine themselves on oath and would examine Shahid Baig of Marina Club as their defence witness but they did not examine themselves or their defence witness Shahid Baig vide their statement Exh.13. The appellants put their case to the witnesses in their cross, examination but they denied the same as such there is solitary statement of appellant Karl John in this case. There is no evidence available on the record to support or corroborate the statement of appellant Karl John.
31. The case of the appellant Karl John is that on 31-1-2002 at 7.00 p.m. In presence of Shahid Baig the complainant demanded illegal gratification from him but the said stand has not been corroborated by his own wife. Appellant Sosanne as she did not state that on the above date, time and place the complainant demanded illegal gratification from them. She was silent with regard to the said allegation. But in her further statement she stated in general terms that she and her husband were involved to extract money. Thus, the defence taken by the appellants cannot be safely relied upon without any supporting or corroborating piece of evidence.
32. As regard to the liability of each appellant, it is an admitted fact that the boat belonged to appellant Karl John. He was its Captain and master vide clearance certificate issued by Sultanate of Oman, Director General of Customs annexure "A" filed along with the written statement. As such all the articles lying in the boat were in possession of he appellant Karl John being the Captain and master of the boat. 21 kgs. Of Charas was secured from the boat, therefore, the appellant Karl John has committed the offence punishable under section 9(c) of Act, 1997.
33. The case of the appellant Sosanne is distinguishable from the case of the appellant Karl John as she did not allege that the boat belonged to her or she was its Captain, as such, she cannot be deemed to be in possession of the articles lying in the boat. The prosecution merely alleges, that at the time of search of boat the appellant Sosanne was present. No other evidence has been led by the prosecution to show further involvement of appellant Sosanne. Mere presence of appellant Sosanne at the place of search is not enough to saddle her with the liability of possession of Charas secured from the boat unless some evidence to that effect is laid by the prosecution which is lacking in the present case. It is pertinent to point out that at the time of search some unlicensed arms and ammunition were secured from the boat. For that, the complainant lodged the F.I.R.
Under section 13 (e) of Pakistan Arms Ordinance, 1965 against appellant Karl John only. If the prosecution have booked the appellant Sosanne in this case along with appellant Karl John on the ground of possession of charas, then why she was not booked for possession of unlicensed Arms and ammunition along with appellant Karl John as both the articles were secured from the boat on the same date and time. The learned Special Prosecutor could not controvert the above position but stated that she was abettor and conspirator with the appellant Karl John, therefore, she was liable to be convicted for offence as defined under section 14 and punishable under section 15 of Act, 1997.
34. A perusal of charge shows that the trial Court framed the charge not only under section 9(c), of Act, 1997 but also for offence as defined under section 14 and punishable under section 15 of Act, 1997 against the appellants. The Judgment of the trial Court reveals that the appellants were convicted under section 9(c) of Act, 1997 only. The learned trial Judge did not record the conviction and sentence under section 15 of Act, 1997 against any of the appellants. It is the duty of the trial Court to record the finding with reasons in respect of each offence charged in relation to each of accused person and to follow it with an operative order of conviction or acquittal as the case may be. In the present case, the trial Court did not record the finding of conviction or acquittal in respect of offence punishable under section 15 of Act, 1997, as such, the trial Court had failed to perform its legal duty. However, non-recording of conviction under section 15 of Act, 1997 is implied acquittal of the appellants from the said charge.
35. The above point was considered in a case of Shera v. Crown (P.L.D 1954 FC 141). In that case, the accused persons were charged for offences punishable under sections 302, 149, 148 etc. P.P.C. The trial Court convicted one of the accused under section 302, P.P.C. The six accused persons were convicted under section 148, P.P.C. The trial Court did not record any conviction or acquittal with regard to the offences punishable under sections 302 and 149, P.P.C. In respect of six accused persons who were convicted under section 148, P.P.C. The matter was challenged in an appeal filed by the accused before the High Court. The High Court issued notice to the said .Six accused who were convicted under section 148, P.P.0 to show cause as why they should not be convicted under sections 302 and 149, P.P.C. Subsequently those accused persons were convicted under sections 302 and 149, P.P.C. The matter went to Federal Court. The Hon'ble Federal Court observed that as the trial Court did not record the finding of conviction in respect of offences punishable under sections 302, 149, P.P.C., therefore they were acquitted from the said charge by the trial Court. Thus the High Court was not competent to convict the said six accused persons in an appeal filed by the accused even by exercising the revisional powers. The finding of acquittal can only be converted into conviction in an appeal filed under section 417, Cr.P.C. At pages 166 and 167 it has been observed as under: "His omission to record expression findings in relation to the other offences charged cannot however affect the substantive position namely that in the absence of express reservation by the trial Judge, in respect of each of these offences, for the purposes of law, he must be deemed to have recorded a finding of not guilty and to have made an operative order of acquittal in consequence of. Such finding. Therefore, I entertain no doubt that the examination of the present case must proceed on the basis that in relation to the six appellants other than Walia, on the charge of the offence punishable under sections 302/149, P.P.C. The finding of the trial Court was a finding of not guilty which must be deemed to have been effectuated by an order of acquittal."
36. Thus the trial Court had acquitted the appellants from the charge under section 15 of the Act, 1997. Finding of acquittal cannot be converted into conviction in the present proceedings or even under the revisional powers of this Court as there is specific bar in section 439 (4) (a) of Cr. P. C.
The order of acquittal can be set aside only through an appeal filed by the State. Reliance is placed on the case of Shera (supra). In the present case the State has not filed any appeal against the order of acquittal for offence punishable under section 15 of the Act, 1997. As such, the appellants cannot be convicted under section 15 of the Act, 1997 in the present proceedings.
37. As the appellant Sonsanne cannot be held responsible for possessing Charas secured from the boat, therefore, the learned trial Judge was not justified in convicting her under section 9(c), of Act, 1997 and her conviction was illegal.
38. On 15-8-2003, this Court had suspended the property order passed by the trial Court, in respect of auction of the boat, subject to final order of the appeal .As the appeal of appellant Karl John has been dismissed, therefore, the property order of the trial Court is maintained subject to any order passed by the Hon'ble Supreme Court of Pakistan, in case, appeal is filed by the appellant Karl John.
Above are the reasons of our short order dated 18-12-2003 by which we had set aside the conviction and sentence of the appellant Sonsanne under section 9(c) of Act, 1997. She was acquitted and set at liberty. Whereas we had maintained the conviction and sentence of the appellant Karl John. Consequently the appeal was partly allowed.