ABDUL KARIM KHAN KUNDI, J.--- Mr. Abdul Hamid Khan Khattak, Additional Sessions Judge, Islamabad, by his judgment and order, dated 27-3-1990, extended benefit of doubt to co-accused Shafiq Hussain and accordingly acquitted him of the charges but proceeded to record the conviction of Khalid Iqbal appellant on the charge of transportation of Charas weighing 185 K.G.
And convicted and sentenced him to five years' R.I. Whipping numbering fifteen stripes and a fine of Rs.15,000 or in default to suffer one year's R.I. Further under Article 3(1)(a) of the Prohibition (Enforcement of Hadd) Order, 1979 and he further convicted and sentenced him to life imprisonment, whipping numbering twenty stripes and a fine of Rs.50,000 or in default to undergo two years' R.I., further on the charge of transportation of heroin weighing 7 K.G. Under Article 3(2)(1) of the Prohibition (Enforcement of Hadd) Order, 1979. Appellant was, however, extended benefit of section 382-B, Cr.P.C. In the computation of his period of imprisonment. The vehicle was confiscated to the State and the contraband narcotics were ordered to be destroyed on the lapse of period of appeal, revision; if any.
2. The prosecution narrated a story at the trial that on 1-3-1989 Raja Muhammad Akhtar Tahir, Deputy Collector Customs, received a spy information about the transportation of smuggling of Charas in Car No.1HM-6974 bearing a forged number plate GAB-19 from Peshawar side, that a raiding party was organized and a `Nakabandi was arranged at the Tarnol Railway Crossing at 8- 00 p.m., that at 12-30 mid-night a car was seen coming from Peshawar side with number plate GAB-19 which was signalled to stop but the car speeded up and did not stop and accordingly a chase was given in official vehicle and the car was overtaken at about 1-1/2 furlongs from the crossing. Khalid Iqbal was found sitting on the driver seat driving the car while Shafiq Hussain co- accused was found sitting on the front seat and on search of the car 185 K.G. Of Charas and 7 K.G.
Of heroin were recovered from secret cavities in the doors and underneath the engine of the car.
Samples of the narcotics were prepared and sealed and sent to the Chemical Examiner wherefrom positive reports were received. Two number plates P.1 and P.2 of LHM-6974 were also recovered and taken into possession. There were recovered an Identity Card, currency notes, Seiko watch and toll tax receipt of Khairabad Bridge from Khalid Iqbal appellant on his personal search which were also taken into possession. An inventory of the vehicle was prepared reporting it a Toyota Corolla 1978 Model with four tyres, one spare stepny and one old and used tyre of Suzuki in the dicky. There were registered separate cases against the appellant and his co-accused under section 156(1)(89), Customs Act and Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. Shafiq Hussain co-accused produced evidence in defence before the Investigating Officer, as a result he was declared innocent and placed in Column No.2 of the challan. He has earlier obtained bail from the Court. After submission of the challan he was present in the Court on his own and the Court without application of mind had also charged him for the offence and was thus made to face the trial. We would hereby observe that as and when a challan is submitted in the Court in which a person is placed in Column No.2 by the Investigating Agency after finding him innocent the trial Court must independently apply his mind to his case and if he finds that a prima facie case has been made out against him he should then only summon the person to face the trial as an accused. In fact a person placed in Column No.2 is not found an accused by the investigating Agency and it is upto the Court to summon him to face the trial. The Court may straightaway form an opinion about his involvement in the offence and accordingly summon the person to face the trial or the Court may during the trial of co-accused form a view that a person placed in Column No.2 should also be summoned to face the trial and order accordingly. However, in all cases there must be independent application of mind by the trial Court to summon or not to summon a person placed in Column No.2 in the challan to face the trial. In the case in hand Shafiq Hussain co- accused was made to face trial in routine alongwith his co-accused/appellant. The trial Court has also ultimately acquitted him of the charge. He has after all faced the agony of the trial due to the non-application of mind by the trial Court at the right time at the commencement of the trial. Thus, trial Courts shall apply their mind if there is being made out a prima facie case against a person placed in Column No.2 of the challan and thereafter to summon him to face the trial. This is a statutory requirement.
3. As far as Khalid Iqbal's case is concerned Javed Iqbal Khan, Deputy Superintendent Customs, P.W.1, Arif Hussain, Inspector Customs P.W.2 and Ghulam Hussain, Hawaldar Customs P.W.3, supported on oath the prosecution story in all details and we have not found any infirmity in their evidence to hold otherwise but that their evidence has proved the charge of the transportation of narcotics in huge quantity in the car in question with forged plate No.GAB-19 at mid-night and the appellant having been apprehended red-handed sitting on a driver seat driving the car and his co-accused (acquitted sitting on his side in front seat. P.Ws. Had stated on oath that on the personal search of the appellant an identity card, currency notes, Seiko watch and toll tax receipt of Khairabad Bridge were recovered from him. They were not questioned by the defence during cross-examination about the said recoveries. Ordinarily, it is the driver who pays the toll tax and obtains the receipt and places it in his pocket. The recovery of toll tax receipt from the pocket of the appellant would also go a long way to hold the appellant as driver of the vehicle at the time. There were recovered two number plates of LHM-6974 from the car. The Customs Officers gave the evidence that they had the spy information that Charas would be smuggled in Car No.LH-6974 with forged Plate No. GAB 19 from Peshawar. The recovery of the number plates was also not denied by the appellant and his co-accused and this recovery would be, therefore, available to corroborate the prosecution evidence on the point.
4. Appellant stated that he was a handicapped person and remained under the treatment of Dr. Feroz Shah, Professor of Surgery and produced his certificate Exh.D.A. But the certificate of Surgeon Feroze Shah is not of any help to him. It has not been formally proved through the statement of the Surgeon at the trial. It cannot be said that the certificate pertained to the examination of Khalid Iqbal appellant whose identification marks have also not been incorporated in the certificate.
Exh.D.B., another medical certificate was, no doubt, proved by the Medical Officer, Central Jail.
Rawalpindi but the same does not say if the appellant was unable to drive any car. It only reports that the appellant was anaemic and he was a handicapped person and was unable to stand more than ten minutes. Deformed people are possessed of great will power and have been found to do miracles. A handicapped person with cured inward feet may drive a vehicle.
5. Appellant stated that he was standing at Peshawar Bus Stand that a car coming from Bara side stopped and the driver of the car gave him lift upto Rawalpindi. Standing at Peshawar Bus Stand one cannot say that a car coming on G.T. Road on way to Rawalpindi shall be the car coming from Bara side but in case the appellant knew the name of the driver and also its owner as belonging to Bara he was to divulge their names but he failed to do so. His statement and that of his co- accused report that there were in all three inmates of the vehicle including the driver and that the driver had made good his escape while the appellant and his co-accused (acquitted) were arrested. Reference was made to the statement of P.W.1 who during cross-examination had also stated that two persons were visible in the vehicle of the accused who managed to flee away, however, the witness in the next breath stated that they had stopped the vehicle of the accused by overtaking and blocking its way and arrested the accused from inside the car. The said P.W. And other P.Ws. Were not further questioned if someone or two persons had actually managed to flee away.
6. Again, in case the vehicle was stopped at 12-30 mid-night on 3-1-1989 and the distance upto Tarnol might have been covered in about two hours time thus starting from Peshawar at 10-30 p.m.
And in that hour of the night in winter season the appellant was not to be ordinarily given lift in a car by a stranger upto Rawalpindi. His plea does not stand to reason. The appellant did not examine himself on oath in disproof of the charges and allegations made against him at the trial as required under section 340(2), Cr.P.C. It is all the more necessary that as and when an accused claims to be present at the scene of occurrence and also I, comes forward with a different version then he must give evidence on oath in' support of his version in order to disprove the charges and allegations deposed by the P.Ws. And if he still declines to give evidence on oath and thus withholds the direct evidence about the incident the Court shall draw an adverse inference against him and shall presume that evidence as such if given by him shall be unfavourable to the person who withholds it. This adverse inference shall also be availed in corroboration and support of the ocular evidence of the incident furnished by the prosecution. Resultantly, we would uphold the conviction of the appellant on the charge of transportation of huge narcotics of 185 KG. Charas and 7 K.G. Heroin.
7. Trial Court convicted and sentenced the appellant both under Articles 3(1)(a) and 3(2)(i) of the Prohibition (Enforcement of Hadd) Order, 1979 on the charges of transporting Charas and heroin respectively. It was pleaded that in fact Article 3(2) was added by P.O. No.12 of 1983 and at the time second proviso of Article 4 was also added. It was contended that under Article 4 the possession of custody of any intoxicant including raw opium, coca leaf, cocaine and heroin was made punishable that under the second proviso enhanced punishment was prescribed in case of possession or custody of heroin or cocaine exceeding ten grams and raw opium or coca leaf exceeding one kilogram. So under Article 3(1) transportation etc., of any intoxicant was made punishable while under clause (2) the transportation etc. Of opium or coca leaf or opium or coca derivatives was made punishable with enhanced sentence of imprisonment for life. Accordingly it was pleaded that in fact clause (2) of Article 3 should be read as a proviso of clause (1) of Article 3 on the pattern of the second proviso of Article 4. We may accept the argument posed and addressed as above. In the context it was also argued that since in case of joint possession and recovery of narcotics in Charas, opium and heroin etc. It is the practice of this Court to punish the offender with the enhanced punishment prescribed under the second proviso of Article 4 in case of' recovery of raw opium and heroin exceeding the prescribed quantity as taking all one joint offence and the offender is not punished separately and independently for the possession and custody of each narcotic and that on the same pattern the offence of transporting etc. Of different narcotics punishable differently shall not be punished more than once for a joint offence, however, no doubt, he shall be liable to be sentenced to enhanced punishment as provided in clause (2) of Article 4 and not that the offender will be punished for transportation of one narcotic under Article 3(1) and for another narcotic under Article 3(2). According, we lay down a rule that as and when an offender is charged for transportation or possession of different narcotics at one and the same time during the same transaction and the transportation or possession of some narcotics is punishable with enhanced sentence the offender shall be liable to the punishment for a joint offence of narcotics to the maximum sentence provided for the transportation or possession of certain narcotics and the transportation and possession of intoxicant punishable with lesser sentence shall be accordingly merged into the major offence of transportation and possession of narcotics punishable with enhanced sentence. Consequently, we would set aside the conviction and sentence of the appellant under Article 3(1)(a) and would maintain his conviction under Article 3(2).
8. Coming to the quantum of sentence it was argued that the appellant is a totally deformed person of 23/24 years and he deserves leniency in the award of punishment. On the other hand, it was argued that besides the transportation of heroin punishable with enhanced sentence the appellant was also even guilty of transportation of huge quantity of Charas and in that situation he shall be liable to the full dose of punishment prescribed in Article 3(2), We would allow some credit to the appellant's complete deformation and young age in the award of punishment and we accordingly sentence him to seven years' R.I., with whipping numbering fifteen stripes and a fine of Rs.50,000 or in default to undergo three years' R.I., further. The appeal and Criminal Suo Motu No.28/I of 1990 are disposed of accordingly. The benefit of section 382-B, Cr.P.C. Shall remain intact.
N.H.Q./562/F.S.C.