' MUNIB AKHTAR, J.--- Haji Inayat and Anwar appeal to this Court, being aggrieved by their conviction and sentencing under section 9(c) of the Control of Narcotic Substances Act ("the CNS Act") by the Court of the Special Judge for CNS, Naushero Feroze ("the CNS Court"). The CNS Court, by the impugned judgment dated 24-12-2008, has imposed a sentence of 10 years' rigorous imprisonment and a fine of Rs,100,000 on each of the appellants. In case of default in payment of the fine, each defaulting appellant is liable to a further sentence of 1 year rigorous imprisonment.
2. The material facts are as follows. On 4-5-2006 at around 1-30 p.m., a team of excise department officers headed by Azizullah Nangraj, Excise Inspector, and including Abdul Ghani and Saeed Khan, left their station for checking vehicles at check post Rasool Abad. The team started checking vehicles coming from the Sukkur side. At around 6-15 p.m., a truck was spotted coming from that direction, but when it was signalled to stop, its driver failed to do so and instead sped away. The team chased the truck and finally caught up with it near Kotri Kabir at a hotel named Quetta Ghousia Hotel at around 6-30 p.m. Two persons were found in the truck, who were identified as the present appellants, of whom the appellant No,1 (Haji Inayat) was the driver while the second person (Anwar) was his helper. A body search of the appellants was conducted and currency notes of Rs,1000 and Rs,500 respectively were recovered from them. The team also searched the truck and found a secret cavity near the fuel tank. The cavity was opened with the help of a hammer and 70 packets, of 1 kg each, were found inside it. Two packets (i,e,, 2 kg in all) were taken and sent for chemical examination, which revealed that the substance was Charas. The remaining 68 packets were sealed in two bags; however, no samples from these packets were chemically examined. The mashirs in whose presence the search was conducted were the aforesaid Abdul Ghani and Saeed Khan.
3. Two persons in addition to the appellants, being one Suhbat and one Bashir, were also challaned, but they were, and remained, absconders and were subsequently declared proclaimed offenders.
In the event, the appellants were charged with having contravened sections 6 and 8 of the CNS Act, and since they pleaded not guilty, were tried for having committed offences under section 9 (c).
The prosecution produced the aforesaid Azizullah, Nangraj and Abdul Ghani as prosecution witnesses, and the appellants produced one witness, Shafi Muhammad. The CNS Court accepted the testimony of the prosecution witnesses, who testified to the facts as set forth supra. The CNS Court was satisfied that the prosecution had established its case beyond reasonable doubt, and finding the appellants guilty, convicted and sentenced them as stated hereinabove.
4. Mr. Ghulam Ali Rind, learned counsel appearing for the appellants assailed the impugned judgment and submitted that it suffered from many material illegalities and was liable to be set aside. He submitted that no proper investigation had been carried out in the matter as required by law. According to learned counsel, the real culprits were the aforesaid Suhbat and Bashir who had, in effect, been let off by the police inasmuch as no proper attempt had been made to arrest and prosecute them. The present appellants had been wrongly implicated in the matter. He further submitted that the only witnesses produced by the prosecution were the official witnesses whose testimony was unreliable. He relied on Master Sammer and others v. Fazal Muhammad and another 2008 MLD 1709 and Jalal Khan v. The State 2008 SCMR 815. Mr. Fazal Muhammad, learned Special Public Prosecutor, appearing for the State, on the other hand supported the impugned judgment. He submitted that the evidence of the prosecution witnesses was consistent and clearly established the guilt of the appellants. Learned counsel further submitted that it was settled law that police officials were as good and reliable witnesses as any other person, and no personal animosity had been shown to exist between the appellants and the police officers involved in the matter. He submitted that a large quantity of narcotics had been recovered and prayed that the appeal be dismissed.
5. The charge framed by the CNS Court was as follows:--- "That on or about 4-6-2005 at 6-30 p.m. On National Highway near Quetta Ghousia Hotel near Kotri Kabir Taluka Kandiaro District Naushehro Feroze, a party of Excise Police headed by Excise Inspector Azizullah Nangraj Incharge DIO Camp Kandiaro, found you trafficking 70 Kgs of Charas in a Truck bearing No,QAA-1333 in contravention of sections 6 and 8 of Control of Narcotic Substances Act, 1997 and also secured Rs,1000 from the possession of you accused Haji Inayat and Rs,500 from the possession of you accused Anwar, thereby you committed an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and within the cognizance of this Court."
' The two sections under which the charge was framed, i,e, sections 6 and 8 of the CNS Act, create separate offences, and if the CNS Court had found the appellants guilty of offences under both these sections, they would have been liable to punishment for each such offence and sentenced accordingly. However, each of the appellants has been awarded only one sentence, and it therefore follows that the CNS Court has found each of them guilty only under one section. It is not clear from the impugned' judgment however as to what that section is, i,e,, it is not clear whether the CNS Court has found them guilty under section 6 or section 8. It will be necessary therefore, to consider both sections to determine whether the conviction of the appellants under the Act was lawful.
6. Sections 6 and 8 of the CNS Act are as follows:---
(6) Prohibition of possession of narcotic durgs, etc. No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance 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.
(8) Prohibition on trafficking or financing the trafficking of narcotic drugs, etc. No one shall---
(a) organize, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled substances; or
(b) use violence or arms for committing or attempt to commit an offence punishable under this Act.
' As already noted, sections 6 and 8 create separate offences. Each section contains many diffetent elements, and the contravention of any one element is an offence under the Act. Although the charge uses the word "trafficking", it is clear from the impugned judgment that the CNS Court has used this word essentially as synonymous with or equivalent to "transporting". Indeed, when examining the appellants under section 342, Cr.P.C., the CNS Court had expressly used "trafficking" in relation to section 6. That section does not however, use the word "trafficking"; it is rather the "transport" of a narcotic drug that is a contravention of section 6. Now, if "trafficking" simply meant "transporting", that would imply a redundancy in the law since the same act would be made an offence twice over in different provisions of the same statute. It is therefore necessary first to determine the true meaning of the word "traffic" (and its cognate word "trafficking") which are used in section 8(a). It is only then that it will be possible to determine whether the appellants had contravened the said provision.
7. Neither "traffic" nor "trafficking" is defined in the Act. According to well-settled principles of interpretation, these words therefore have to be given their normal or ordinary meaning. When used as a verb (as it is in section 8 (a)), the word "traffic" has the following A meanings according to the New Shorter Oxford English Dictionary (1993 ed., pg. 3360): "Carry on trade, buy and sell; have commercial dealings with a person etc.... Deal or trade in something of an illicit or disreputable nature. Conduct secret dealings; intrigue or conspire (with a person). Also, communicate or have social dealings ( with a person) conduct negotiations: be concerned (in a matter)...Carry on a trade in; barter; deal in; esp. Illicitly."
The same entry defines a "trafficker" as a person "who trades or traffics, especially in something of an illicit or disreputable manner". As is clear from the definition, the word "traffic" signifies a course or pattern of dealing or transactions which amount to the carrying on either of a trade, or the buying and selling of a substance, especially of an illicit or disreputable nature. It is of course, not necessary that the trade or course of dealing be on a large scale, or over an extended period of time; a few small transactions may well constitute trafficking. Even one transaction may, in appropriate circumstances, be so regarded if, e.g., it is proved that the accused normally or regularly deals or trades in the substance or goods concerned. However, as is clear from the definition, it is an essential ingredient of "trafficking" that there should be some degree of continuity or repetitiveness. It is in this sense that the word is C used in section 8(a). The point is fortified by the other acts which contravene clause (a), namely to "organize" or "manage" prohibited drugs or substances. These acts also signify conduct which is something more than an isolated, one-off transaction. The trafficking or organization or management of prohibited drugs and substances may well involve one or more of the elements separately and individually forbidden under section
6. However, while section 6 prohibits each act or element even if performed separately and on its own, section 8 forbids conduct that may comprise of one or more of such acts or elements when bundled together in a course or pattern of dealing or acts in the manner described above.
8. It is important to keep in mind that the difference between the two sections is real and substantial. A simple example will illustrate the point. Suppose the accused, X, sells a narcotic drug, say Charas, in two transactions, each transaction involving 600 grams of the drugs. If each transaction is found to be a separate sale of Charas, each will be a contravention of section 6, for which the maximum punishment is 7 years under section 9(b). Thus, if X were to be convicted for each contravention separately and serves the sentences consecutively, his maximum punishment would be 14 years. On the other hand, if the two transactions are regarded as trafficking in Charas in the manner as explained above, then it would be an offence under section 8, and X would liable to be punished for having trafficked 1200 grams (or 1.2 kg) of Charas. His case would then come under section 9(c) where the maximum punishment is significantly greater. Even in terms of the sentencing guidelines laid down by the Lahore High Court in its recent decision reported as Ghulam Murtaza and another v. The State PLD 2009 Lah. 362, the difference is clear. If convicted under section 6 for selling charas (each 600 grams separately), X would, under the guidelines, be liable to receive two sentences of 1 year each (totalling two years even if served consecutively), whereas a conviction under section 8 for trafficking the Charas (1.2 kg) would result in one sentence of 4 years i,e, twice as long.
9. In the present case, what can be said (at most) against the appellants is that they were transporting Charas in the truck. Nothing has been proved that would show that they were trafficking the Charas, i.e:, engaged in the trade or the buying or selling of Charas or dealing in it in the manner described above, as would bring the matter within the meaning of section 8. In our view therefore, their conviction cannot be sustained in terms of section 8.
10. We now turn to examine the case under section 6. As noted above, it comprises of a number of different and distinct elements, and the contravention of any one element is an offence punishable under section 9. It is clear from the facts as found by the CNS Court that the appellant's case, if at all within section 6, would involve only two elements, namely the possession or transportation of the Charas, and the question therefore is whether this has indeed been established beyond reasonable doubt, as held by the trial Court.
11. When something is in or on board a moving conveyance (such as a truck), it is of course being transported from one place to another simply by reason of it being in a conveyance which is in motion. However, this is not enough in and of itself. The question under section 6 is whether the prohibited drug/substance is being transported by the accused. The answer to this question must, in our view, lie in whether the accused can be said to be in possession of the prohibited drug since, e.g., the drug may be on board the conveyance unknown to the accused. In our view, for purposes of section 6, and in the specific context of a conveyance, the accused can be said to have possession of prohibited drugs which were in or on board that conveyance if either (i) the drugs were in the actual physical possession of the accused, or (ii) the facts admitted or proved at the trial establish beyond reasonable doubt that the accused knew or must be regarded as having known that the drugs were in or on board the conveyance. And of course, if the conveyance is moving from one place to another, then in such a situation, the accused would be regarded as transporting the drugs within the meaning of section 6.
12. In Nazar Hussain and others v. The State 2007 YLR 1601, this Court had occasion to consider the "possession" element of section 6 of the Act in some detail. It was observed as follows at page 1604:--- "...The word "Possess" appearing in the section 6 connotes some sort of knowledge about the things possessed. So we have to determine what is meant by word "possess" in the section. It is necessary to show that the accused had the article, which turned out to the narcotic drugs. In other words the prosecution must prove that the accused was knowingly in control of something in the circumstances, which showed that he was assenting to being in control of it. It is not necessary to show in fact that he had actual knowledge of that which he had."
' A little later in the judgment, after referring to section 29 of the Act, it was observed as follows at pp.1605-6:--- "The above section expressly cast a duty upon the Court to presume in a trial under this Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge of offence; therefore, the possession must be conscious possession.
Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that accused has dealt with the narcotic substance or has physical custody of the same or directly connected with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused would be held guilty by virtue of section 29." (emphasis supplied).
We may note that section 29 of the Act uses the word "may" and not "shall" in respect of the presumption to be drawn under that section. However, it is not necessary for us to dilate upon this aspect in the present case. The important point is that knowledge is an essential ingredient of the word "possess" as used in section 6. The accused must have knowledge of the thing or substance which he is supposed to be in possession of. If such possession with knowledge is established, then it may not be necessary also to establish that the accused specifically had knowledge that the thing or substance that he possessed was a prohibited drug. In such a situation, section 29 may become applicable. In our view, this is the proper distinction to be made between having "possession with knowledge" on the one hand (which must be established), and being "knowingly in possession" on the other .(which may or may not, need to be established, depending on the facts and circumstances of each case).
13. In Zahoor Awan and another v. The State 1997 SCMR 543, a case involving contraband being carried on board a truck, it was observed as follows (at p.547):--- "Learned counsel submits that the prosecution did not succeed to prove that the appellants had the knowledge that contraband material was concealed in the truck or they were the owners of the drug or the vehicle. The argument being impressive, is tenable inasmuch as prosecution did not produce evidence to demonstrate that it was in the exclusive knowledge of the appellants that heroin was kept in the truck wherein they were travelling...Their presence in the truck could not be held to be enough to convict them where it was not proved through reliable evidence that the appellants were transporting a forbidden article. No such evidence was led against the appellants during trial."
14. The key question that therefore requires determination is whether the appellants could, on the facts as found by the CNS Court, be regarded beyond reasonable doubt as having possession of the Charas. The Charas was not found in the actual physical possession of either of the appellants.
The question therefore is whether it was established beyond reasonable doubt that the appellants knew or must be regarded as having known that the Charas was in or on board the truck. If so, then the appellants would have had possession of the Charas within the meaning of section 6, and since the truck was moving from one place to another, the appellants would be regarded as transporting the drug.
15. In our view, for the reasons hereinafter stated, the answer to the above question must be in the negative. Neither of the appellants was the owner of the truck. They were simply its driver and his helper. The Charas itself was not lying in the truck in an open or easily accessible place or manner, e.g., in the back of the truck under the driver's seat (whether openly or in a locked container or box).
(In Shah Wali and another v. The State PLD 1993 SC 32, the heroin was found wrapped in a plastic and cloth envelop which was lying on the passenger seat of the car, while in Ghulam Qadir v. The State PLD 2006 SC 61, the prohibited substance was found lying openly in eight sacks on the roof of the coach. In both cases, the appeals of the convicted accused were dismissed). In the present case however the Charas was hidden in a secret compartment inside the body of the truck (near the petrol tank). This secret compartment was not pointed out or revealed by either of the appellants, but was located upon a search of the truck's body by the excise officers. The compartment had to be opened with the help of a hammer, i,e,, it was locked or sealed in some manner. Although the appellants were searched, the record does not show whether any key or other tool to open the compartment was found on their person or in the truck. The Charas was in packets of one kg each kilogram was wrapped in plastic. The record does not show whether any attempt was made to determine whether appellants had handled the packets. For example, the packets could have been dusted for fingerprints for comparison with the fingerprints of the appellants. If such an exercise had revealed a match with either (or both) of the appellants. That would have established that they had handled the packets, e.g., while placing them in the secret compartment. These are just a few factors which come readily to the mind of any reasonable person when considering the question whether the appellants knew or could be regarded as knowing that the Charas was on board the truck. No doubt a professionally trained team, carrying out a properly conducted search, could think of many more ways of connecting the appellants with the Charas in a legally relevant and permissible manner. No such method was however, adopted nor was any such exercise carried out. There is also nothing on the record to show the destination of the truck or the duration of the journey; the only thing that is established is that the truck was coming from 'Sukkur side. (In Nadir Khan and another v. The State 1988 SCMR 1899, it was held that the person in charge of a vehicle on a long journey (in that case, from Peshawar to Karachi) can be saddled with knowledge of the contents of goods being carried in the vehicle.) In our view therefore, it cannot be said to have been established beyond reasonable doubt that the appellants knew or could be regarded as knowing that the Charas was in or on board the truck.
This is so notwithstanding the existence of other facts that could be said to point in the opposite direction. For example, the truck sped away instead of stopping when signalled to do so, and the F secret compartment was located near the petrol tank. These facts can reasonably raise a suspicion. However, suspicion is not proof, and it is certainly not proof beyond reasonable doubt.
16. The CNS Court observed, while assessing the evidence, that "a huge quantity" of Charas was "recovered from the truck which was in exclusive possession" of the appellants. It also observed that there was no material inconsistency between the testimonies of the two prosecution witnesses. With respect, the CNS Court has missed the point and committed a fundamental legal error. Even if the testimony of the witnesses is consistent, the question always is whether the facts proved thereby establish the offence beyond reasonable doubt. For this purpose, the nature of the offence and its ingredients or elements need to be clearly understood and kept in mind. It is only then that the Court will know what needs to be proved, and thereby be able to assess whether what is in fact proved at the trial established the offence beyond reasonable doubt. In the present case, it appears that the CNS Court has simply equated the "exclusive possession" of the truck with possession (and thence transportation) of the Charas discovered on board the truck. However, for the reasons given above, this equation is incorrect and does not follow automatically or inevitably.
Even the conclusion that the truck was in the appellants' "exclusive possession" is not accurate. No doubt the appellants were the only persons in the truck when it was intercepted by the excise officers. But that does not automatically establish that the truck was in their exclusive possession (or indeed, in their possession at all) when the Charas was placed in the secret compartment, or that they knew or must be regarded beyond reasonable doubt as knowing that the Charas was on board the truck. The CNS G Court has simply jumped to a conclusion and made an assumption that is not warranted or supported by the facts as proved before it. This is a fundamental and fatal legal error.
17. In our view therefore, there is reasonable doubt whether the appellants could be regarded as having possession of the Charas within the meaning of section 6 as explained above. There is thus also reasonable doubt as to whether the appellants could be regarded as transporting the Charas within the meaning of the said section. Their conviction under section 9 of having committed an offence under section 6 is therefore also unsound and unsustainable in law.
18. Quite apart from the foregoing, the CNS Court has made two other errors of law which also need consideration. Firstly, it has treated the position of the two appellants as identical. There is nothing in the record to warrant such an assumption or conclusion. The case of the two appellants may have been similar, but it was not necessarily identical. It is quite possible that one, but not the other, knew that the Charas was on board the truck, and thus (as explained above) would be the only one regarded as having possession of and transporting the, Charas. For example, it is easily conceivable that Haji Inayat (the driver) was the real culprit and not Anwar (his helper). Being a helper with the truck does not automatically mean that Anwar was also a helper in the crime. It is even (though less readily) conceivable that Anwar was the real culprit and not Haji Inayat. The point is that the CNS Court ought to have kept in mind that the appellants were not identically placed and examined the evidence with reference to each appellant individually, and drawn its conclusions accordingly. By stating that the two appellants were in "exclusive possession" of the truck, the CNS Court has simply assumed a connivance or conspiracy between them which is not established by the facts as proved before it. Indeed, the charge itself is deficient in this regard since it does not refer to any such conspiracy, but simply assumes the same. This is a basic legal error which vitiates the impugned judgment.
19. Secondly, the CNS Court has also made a legal error in sentencing the appellants. The CNS Court has purported to take "a very lenient view" while convicting them under section 9(c) and sentencing them to 10 years' R.I. Each (plus fine). It is clear that the CNS Court was convicting them on the basis of the recovery of 70 kgs. Of Charas. However, the CNS Court failed to note that if the appellants were liable to be convicted on this basis, then the proviso to section 9(c) required that they be sentenced at least to life imprisonment, since the quantity involved was in excess of 10 kgs.
More importantly, the CNS Court failed to appreciate that out of the 70 kgs. (in 70 separate packets), only 2 kgs. (in two packets) were sent for chemical examination and confirmed to be Charas. This Court, in a recent decision reported as Muhammad Nawaz v. The State 2007 MLD 1846 (a case under the Act) has held that where two views have been taken by the Supreme Court in a matter, the one more beneficial to the accused should be followed. Applying this principle, the Full Bench followed the view adopted by the Supreme Court in Muhammad Hashim v. The State PLD 2004 SC 856 (also a case under the Act), where it was held that it is only that quantity of the drug from which a portion is chemically analyzed that should be taken into consideration for conviction and sentencing purposes. Thus, it was only the 2 kgs actually chemically analyzed that was legally relevant. A punishment of 10 years for possessing/ transporting 2 kgs of Charas is hardly taking "a lenient view". Indeed, the recommended sentence in terms of the guidelines laid down by the Lahore high Court (noted supra) in such a case is 4 years and six months R.I. The sentence imposed on the appellants by the CNS Court, instead of being lenient, was in fact unlawfully disproportionate and excessive.
20. In view of what has been stated above, this appeal succeeds and the appellants stand acquitted. The impugned judgment is set aside and the conviction and sentence of the appellants is quashed. They shall be forthwith set at liberty unless required in some other case.