SHAFIUR RAHMAN, J.--The appellants who are driver and conductor of a truck from which a large quantity of heroin was recovered were granted leave to appeal to determine whether on the facts found proved their case fell only under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Hadd Order) rather than under Articles 3 and 4 of the Hadd Order.
2. In view of the relaxation of rules ordered by the Honourable Chief Justice on 4-1-1991 about the hearing of such appeals by a Bench of three Judges of this Court, this appeal has come up before a Bench of two Judges for disposal and is being disposed of under the relaxed rules.
3. On 10-8-1986 Tariq Mehmood, Excise Inspector stopped Truck No. PRB-5495 coming from Peshawar side at the Check Post Mullan Mansoor. Its driver was Sahibzada, appellant No. 1 while Zulmai appellant No. 2 was its conductor. Heroin weighing 14,500 grams was found lying concealed in the spare tyre of the truck. It was taken into possession. The appellants admitted the recovery.
The appellants pleaded that they had been engaged on that very day by one Muhammad Ali, the owner of the truck. They pleaded their ignorance of the contents. The trial Court found the prosecution case established and convicted and sentenced the appellants under Articles 3 and 4 of the Hadd Order.
4. On appeal, the Federal Shariat Court held the conclusion arrived at by the trial Court to be well- founded and convictions to be based on sound reasons. It rejected their testimony by observing as hereunder:-- "It is thus apparent that they had covered 60/65 miles of their journey in more than seven hours.
They have admitted that they did not stop during their journey excepting their stoppage at some check post. Their slow movement to cover that distance in more than seven hours was further indicative of the fact that the accused were conscious and worried about the spare tyre and were not prepared to take any risk of using the spare wheel during the journey in case of the puncture of any other tyre. The object for which they were allegedly proceeding has also got in appeal. It is not understandable why should that truck be employed at Jamrod by someone for taking the load of crush stone from Taxila to Islamabad."
5. Mr. M. Bilal, Senior Advocate, the learned counsel for the appellants contended that on the evidence on record, the owner of truck and the contents thereof was Muhammad Ali, and according to prosecution's own showing, the appellants were the driver and the conductor of the truck. They could not, therefore, either own or possess heroin, even if it be held to be contained in the truck spare tyre. For that reason, according to the learned counsel, their conviction and sentence under Article 4 of the Hadd Order was not justified. No effort was made to take proceedings against the owner of the truck.
6. We find that on the evidence brought on record it stands established that the appellants were engaged and intercepted while transporting heroin from one destination to the other. There is nothing to show that they were either its owners or had been in possession of it to warrant their conviction and sentence under Article 4 of the Hadd Order. In the circumstances, we find that their conviction under Article 4 was not proper. The Scheme of the two Articles (Articles 3 and 4) of the Hadd Order clearly shows that they serve different situations and different purposes, possession being not necessarily implied in every act of transportation.
7. In the circumstances, we accept the appeal partly and set aside their conviction and sentence under Article 4 of the Hadd Order and hold them not guilty of that charge. However, their conviction and sentence under Article 3 shall remain intact.