Rahmat Hussain Jafferi, J.--This judgment will dispose of all the above-mentioned appeals, five in number, as they arise out of a common judgment.
2. Briefly stating the facts of the case as per the FIR recorded on 30.01.2006 are that on the spy information, the complainant Excise Inspector Wasim Khan alongwith other Excise officials intercepted a vehicle Bearing No, BC-5796 at Main University Road, Jail Chowrangi, near Central Prison Karachi and apprehended five persons. The person sitting on driving seat disclosed his name as Muhammad Noor whereas other persons disclosed their names as Muhammad Ramzan, Bismillah, Abdul Sattar and Noor Muhammad. On the information supplied by the Driver Muhammad Noor (appellant in Criminal Appeal No, 398 of 2009) and Muhammad Ramzan (appellant in Criminal Appeal No, 402 of 2009), 205 Thellies of charas in the shape of rods and 11 bundles of charas in shape of rods, weighing 268 kilograms were recovered from three secret cavities covered with iron sheet prepared under the seats. After taking separate samples from Thellies and bundles and sealing them, the remaining property was put in 12 bags (borries) and sealed them. Such memo. was prepared on the spot and accused were arrested. After usual investigation challan was submitted before the Court against the appellant.
3. At the trial, the prosecution examined two witnesses viz. Munawar Khalid (PW.1) and Wasim Khan, Excise Inspector (PW.2). The appellants, in their statements recorded under Section 342, Cr.PC, denied all the allegations of the prosecution and claimed to be innocent. They did not examine themselves on oath or lead any evidence. After considering the evidence, the learned Special Judge-II (CNS), Karachi, convicted the .appellants for offence punishable under Section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act) and sentenced each one of them to suffer imprisonment for life and fine of Rs, 200,000/- or in default thereof to suffer for two years with benefit of Section 382-B, Cr.PC, vide judgment dated 30.06.2008. The appellants challenged the said judgment before High Court of Sindh, Karachi but the same was dismissed under the impugned judgment dated 15.01.2009. Hence, they have filed the present appeals by leave of the Court.
4. We have heard the learned counsel for the appellants, learned Additional Prosecutor General, Sindh and perused the record of this case very carefully. Learned counsel for the appellants has argued that the prosecution has failed to prove the conscious possession of the appellants; that the vehicle belonged to a Minister and the appellants were his servants; that they did not know that charas was concealed in the secret cavities of the vehicle, therefore, they were not in conscious possession of the property, hence they have not committed any offence. Conversely, learned Additional Prosecutor General, Sindh has stated that the appellant Muhammad Noor was Driver of the vehicle, whereas the other appellants were sitting in it; that they were in joint possession of the property; that the property was secured on the information supplied by the appellants Muhammad Noor (Driver of the vehicle) and Muhammad Ramzan, therefore, they alongwith other appellants are responsible for the offence.
5. Having heard the learned counsel for the parties and perusing the record, we find that both the prosecution witnesses have fully supported the case by disclosing the same facts as mentioned above. They were subjected to lengthy cross-examination but nothing came on record to discredit their evidence. Both the witnesses are unanimous of all material aspects of the case. Before the learned High Court, they raised an objection that a small quantity was sent to the Chemical Analyzer for examination and report. The learned High Court gave them an offer that the entire property could be sent to the Chemical Analyzer for examination and report but they did not accept the offer and withdrew the said objection. They also raised an objection that huge quantity could not be put in secret cavities. The learned High Court again gave them offer that the Jeep could be called and inspected on which the learned counsel for the appellants withdrew the objection. A perusal of the record reveals that at the evidence led by the prosecution is sufficient to establish that the property involved in the case was secured from the secrete cavities of the vehicle.
6.. Now the question arises as to whether all the appellants can be held in joint possession of the property. In this connection Sections 6 and 29 of the Act are material. Section 6 of the Act provides that possession of narcotic drugs is an offence which is punishable under Section 9 of the Act.
Section 6 reads as under: "6. Prohibition of possession of narcotic drugs etc.--No one shall produce manufacture, extract, prepare, possess, offer for sale purchase, distribute, deliver on any terms whatsoever transport dispatch, any narcotic drugs 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."
It will be noticed that in this section no condition or qualification has been made that the possession should be an exclusive possession. Therefore the possession can be joint with two or more persons. The learned counsel for the appellants has argued that the possession simplicitor would not constitute an offence unless it is accompanied by mens rea or knowledge of the person.
General rule is that there is presumption that mens rea, an evil intention or knowledge of wrongfulness of the act is an essential ingredient in every offence. However, such presumption is liable to be displaced either by the subject mater with which it deals. Normally it is true that the plain, ordinary, grammatical meaning of words of enactment affords the best guide but in case of this kind, the question is not what the words mean but where there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in the offence. Various authorities show that it is generally necessary to go behind the words of the enactment and to take other factors into consideration. Thus in the context, it is permissible to look into the object of the legislature and find out whether, as a matter of fact, the Legislature intended anything to be proved except possession of the article as constituting the element of the offence.
Even if it is assumed that the offence is absolute, 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 be 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. Reference is invited to (1969)2 A.C. 256. (11L).
In the above authority the House of Lords was concerned with a question whether the appellant was in unauthorized possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart from the knowledge involved in the possession of the article. Lord Reid dissented. The majority decision would show that in a case of this nature, it is not necessary for the prosecution to prove that the accused had consciousness of the guilty or the nature of the thing possessed and that it would be sufficient if it is proved that a person was knowingly in possession of the article. Lord Morris of Borth-Y-Gest said: "Must the prosecution prove that an accused had a guilty mind. It is a declared purpose of the Act to prevent the misuse of drugs. If actual possession of particular substances which are regarded as potentially damaging is not controlled there will be danger of the misuse of them by those who possess them. They might be harmfully used; that might be sold in most undesirable ways. Parliament set out therefore to 'penalize' possession. That was a strong thing to do. Parliament proceeded to define and limit the classes and descriptions of people who alone could possess. All the indications are that save in the case of such persons Parliament decided to forbid possession absolutely."
Section 6 of the Act also prescribes certain exceptions under which narcotic substance can be possessed etc. after fulfilling condition mentioned thereunder.
7. The next question for consideration is as to how far the prosecution prove the possession of Narcotic Substance by the accused.
It is pointed out that in most of the cases, it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature has enacted a provision in the shape of Section 29 in the Act to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drug. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:-- 29, Presumption from possession of illicit articles--In trials under this Act, it may be presumed, unless and, until the contrary is proved, that the accused has committed an offence under this Act in respect of (a)Any narcotic drug psychotropic substance or controlled substance; (b)Any cannabis, coca or opium poppy plaint growing on any land which he has cultivated; (c)Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or (d)Any material which have undergone any process towards the production or manufacture of narcotic drug psychotropic substance or controlled substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.
The above section expressly cast a duty upon the Court to presume in a trial under the 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 the 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 an 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 the accused has dealt with the narcotic substance or has physical custody of it or directly concerned 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 will be held guilty by virtue of Section 29, Act, 1997, Reliance is placed on the cases of Under Sain v. State of Punjab (AIR 1973 SC 2309)".
8. As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of Section 27 of PPC has been considered by this Court in the-case of "Sherzada v. State (1993 SCM R 149)", wherein it was observed as under:-- "The next point raised by the learned counsel was that it is provided in Section 27, PPC 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, PPC is confined to the Pakistan Penal Code, only, as the words "within the mean 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 from Section 26 of that Order where certain other provisions of the PPC have been made applicable."
This Court in the case of 'Adil Ahmed v. Deputy Collector, C & CE (1991 SCM R 1951)" has observed that in view of the provisions of Customs Act, the drivers and owners were both responsible.
In the case of "Rab Nawaz v. The State (PLD 1994 Supreme Court 858)", the liability of drivers was again considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to be carrier.
This Court in the case of 'Nadir Khan v. State (1988 SCM R 1899)" has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. The relevant portion reads as under: "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 licence also. As being person 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."
9. Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegations against the appellant Muhammad Ramzan is that on his information secrete cavities of the vehicle were opened and charas was secured. Thus from such information it has been established that he had knowledge of the availability of charas in the secret cavities of the vehicle.
Therefore the appellant Muhammad Ramzan is also involved in the case alongwith the appellant Muhammad Noor. Hence, the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor.
10.As regards the remaining appellants, namely Noor Muhammad, Bismillah and Abdul Sattar.
The allegation against them is that they were sitting in the vehicle, therefore, their case is distinguishable from the case of the appellants Muhammad Noor and Muhammad Ramzan. Hence in such type of cases the prosecution is required to produce evidence to show that the said persons were in joint possession and control of the vehicle or that they had any concern, or dealt with property in any manner, particularly, in the case when the narcotic substance is concealed in secret cavities or digi or hidden from all other persons. If there is no evidence led by the prosecution to indicate that such persons knew that charas or narcotic substance was concealed in secret cavities or had knowledge of the said place so as to attract the provisions of Article 122 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'). Nevertheless, if the property was lying open within the view of said persons or they knew the placement of property then the situation would be quite different. In such a situation, they are required to explain their position in terms of Article 122 of the Order, without such explanation their involvement in the case would be proved.
11.In the present case to the extent of the appellants Noor Muhammad, Bismillah and Abdul Sattar, the above mentioned facts have not been proved through any evidence either oral or documentary, therefore, they are not required to explain anything. The prosecution has simply proved their presence in the vehicle. Thus mere presence of he appellants in the vehicle would not involve them in the case unless conspiracy or abatement of the offence is shown and proved.
Therefore, he prosecution has failed to prove the case against the appellants. In the case of "Qaisarullah v. State (2009 SCM R 579)", a similar question has been examined and it has been observed as under: The prosecution failed to prove through convincing evidence that Abdul Wali had exclusive knowledge of the concealment of narcotics in the car which neither belonged nor was being drive by him."
12.Above are the reasons of our short order dated 19.01.2010, by which we had dismissed the appeals of the appellants Muhammad Noor and Muhammad Ramzan, whereas the appeals filed by the appellants Noor Muhammad, Bismillah and Abdul Sattar were allowed. The said short order reads as under:-- "For the reasons to be recorded later on, while allowing Criminal Appeals No, 399/2009, 400/2009 and 401/2009 filed by Noor Muhammad, Bismillah and Abdul Sattar respectively, their conviction and sentences recorded by the Courts below are set aside. They are acquitted of the charges and be released forthwith, if not required in any other case.
2. Similarly, for the reasons to be recorded later on, while maintaining , conviction and sentences of Muhammad Noor, appellant in Criminal Appeal No, 398/2009 and Muhammad Ramzan, appellant in Criminal Appeal No, 402/2009, recorded by the High Court, their appeals are dismissed."