1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.--These three Criminal Petitions arise out of the same case. They are being, therefore, dealt with together.
2. Leave to appeal has been sought from judgment dated 8-4-1985 of the Federal Shariat Court; whereby the conviction and sentence of the three petitioners under Article 3 of the Prohibition (Enforcement of Hadd) Order (No. 4) of 1979, were maintained on appeals, which were accordingly dismissed.
3. Brief facts for purpose of the present order are that Suzuki Van No. ADA-3453 which was being driven by Altaf petitioner while Ejaz petitioner was acting as conductor, was checked by the police on information that they were engaged in illegal transport of liquor. As a result of the raid several hundred bottles of liquor packed in eight boxes were found in the van. The third petitioner namely, Said Shah was also sitting in the van but on seeing the police he ran away. His arrest took place subsequently. The immediate reaction of Altaf and Ejaz at the the of confrontation by the police was of protest of innocence. They charged Said Shah of having owned and possessed the liquor.
4. They took up the position that they were merely carriers without any knowledge as to what the boxes contained.
5. During the trial evidence was led to show that the liquor was found in possession of the three petitioners in the above-stated circumstances. The plea of Altaf and Ejaz was that they were unaware of the contents of the boxes (as there was no label or writing indicating that they contained liquor). According to them Said Shah had represented to them that the boxes contained soap. The plea of Said Shah was that he neither owned nor possessed the boxes nor their contents.
6. He named another person namely, Sultan Mehmood, as being responsible and pleaded that he was merely a passenger in the Suzuki Van.
7. Both the learned Courts below disbelieved the defence version and after rendering the finding that all the three petitioners were in possession of liquor which was being transported, convicted them under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, awarding the following sentences: "Said Shah to R.I. For 5 years, whipping numbering 20 stripes and to pay a fine of Rs. 5,000 or in default to undergo S.I. For 5 months. Muhammad Altaf and Muhammad Ejaz were each sentenced to R.I. For 3 years, whipping numbering 5 stripes and to pay a fine of Rs. 1,000 or in default to undergo S.I. For one month."
8. Learned counsel for Altaf and Ejaz has relied on Nazir Hussain v. The State 1971 SCMR 404 to contend that they being innocent carriers without knowledge regarding the contents of boxes, could not be convicted.
9. Learned counsel for Said Shah contended that apart from the fact that there is evidence of Said Shah's running away from the spot; in so far as the legal position is concerned, the case of all the three petitioners is at par. He also contends that there is no evidence except the statements of the co-accused (which cannot be made basis for conviction) to connect Said Shah with the ownership or possession of liquor. With regard to running away he contends that several reasonable explanations could be visualised with regard to the conduct of Said Shah.
10. After hearing the learned counsel we deem it fit to grant leave to appeal to examine:
(a) Whether the principle enunciated in the case of Nazir Hussain 1971 SCMR 404 will apply to the present case or it will have to be decided in accordance with the rule laid down in Muhammad Shah etc. v. The State PLD 1984 SC 278, as the offence involved in the latter case was the same as in these three petitions;
(b) Whether under the relevant law namely, Prohibition (Enforcement of Hadd) Order, 1979 it is necessary for the Court to examine questions other than those of possession and/or transport, simpliciter and in that connection whether it is relevant to examine who owned and/or placed the liquor in the Suzuki Van;
(c) Whether it can be treated as a general effective defence for the driver/conductor of a public carrier in cases like the present one to plead that they were unaware of the contents of baggage/ packages/boxes containing liquor or other commodity covered by the relevant law, and whether the law relating to public carriers places any additional responsibility on drivers and/or conductors;
(d) Whether in this case there was enough evidence to show that the three petitioners were in possession of the liquor and/or were transporting them;
(e) Whether the Suzuki involved in the case should have been confiscated; and
(f) all other related questions. Order accordingly. To be heard with similar Peshawar case.
11. The prayer for the release of the Suzuki on Superdari basis is refused.