TANZILUR RAHMAN, C.J.--- This appeal arises out of judgment, dated 26-5-1990 passed by the learned Additional Sessions Judge, Rawalpindi convicting the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentencing him to fifteen years' R.I., with fine of Rs.15,000; in default to undergo further R.I. For two years and thirty stripes for file recovery of raw- opium weighing 8,040 grams from the cavities of the wagon. The case-property i.e. The wagon was also confiscated in favour of the State.
2. The facts, arising out of the above appeal, are that on 27-2-1989 at about 8-00 a.m. Ibrar Asif, Excise Inspector, alongwith Muhammad Hanif A.S.I. And other Excise and police staff was present at Margalla Check Post. A wagon bearing No.AK/3093 came from Peshawar side which was stopped.
The wagon was searched by Muhammad Jamil H.C., and on suspicion the appellant was deboarded from the wagon, who disclosed his name Muhammad Yaqoob son of Noor Muhammad resident of Dhoke Noor, District Attock. The accused having basket in his hand and from the search of basket raw opium was recovered which was weighed and found to be 8,040 grams. Forty grams of opium was-separated as sample and sealed into parcel. The remaining opium was also sealed.
The sample and bulk were taken into possession vide recovery memo. Exh.P.A. On personal search of the appellant one photostat copy of identity card, one wrist-watch and one purse containing Rs.101 were recovered which were also taken into possession vide memo. (Exh.P.B.) After completing necessary process, he handed over the accused alongwith recovery memos and complaint to Muhammad Hanif A.S.I. For further proceedings who sent the complaint (Exh.P.C.) to Police Station and on receipt of formal F.I.R. (Exh.P.C./1) he started the investigation of the case. He arrested the accused, inspected the site, prepared the site plan (Exh.P.D.) and recorded the statements of the P.Ws. He after completing usual investigation put up the challan of the accused before the Court.
3. The prosecution examined six witnesses in support of its case. P.W.1 Muhammad Ashraf, F.C. Took the parcel of sample to the office of Chemical Examiner and delivered the same on 1-3-1989 intact.
P.W.2 Muhammad Nawaz, A.S.I., deposed that he kept the sample parcel for safe custody in `Malkhana' and handed over the same to Muhammad Ashraf, F.C., for onward transmission to the Office of Chemical Examiner intact. P.W.3 Ibrar Asif, Excise Inspector, Margalla Check Post, Taxila, who is also the complainant in this case, has narrated the same version as stated by him in complaint (Exh.P.C.), P.W.4 Aurangzeb; Excise Constable, is also one of the recovery witnesses who supported the recovery proceedings and memos which were attested by him. P.W.5 Muhammad Akram, A.S.I. Deposed that on 27-2-1989 on receiving complaint (Exh.P.C.), he recorded the formal F.I.R (Exh.P.C./1). P.W.6 Muhammad Hanif, A.S.I. The Investigating Officer has deposed that he was present on Margalla Check Post on 27-2-1989 and after conducting search from the accused and recovery of raw opium weighing 8,040 grams Ibrar Asif, Inspector prepared complaint and handed over to him alongwith accused and contraband material for further proceedings.. He after receiving formal F.I.R. (Exh.P.C./1) arrested the accused, inspected the site and prepared site plan (Exh.P.D) and recorded the statements of the witnesses under section 161, Cr.P.C. And challaned the accused to the Court. Thereafter, the learned D.D.A. Made statements before the Court and produced report of the Chemical Examiner (Exh.P.E.) which is in positive, and closed the prosecution evidence.
4. The accused when examined under section 342, Cr.P.C. Denied the recovery of opium from his possession and stated that he was Pesh Imam of mosque of Abadi Margalla and used to deliver the speeches against corruption of narcotic staff of Check Post in Juma Prayers and for that matter he has been falsely implicated in this case. The accused has also given statement on oath under section 340(2), Cr.P.C. And repeated the same version as stated by him in his statement under section 342, Cr.P.C. The accused also produced two witnesses in his defence. D.W.1 Muhammad Hussain deposed that about 14 months ago at 8-00 a.m. The accused was taken from mosque by the police. D.W.2 Syed Nasir Asghar deposed that about 15 months prior, Muhammad Hussain, D.W.
Came to him and told him that police had taken the accused. He alongwith Muhammad Hussain went to Check Post where the other people were also standing. The above D.Ws. Also supported the statements of the accused as given by him under sections 342 and 340(2), Cr.P.C.
5. We have heard the learned counsel for the parties and have gone through the record with their assistance.
6. On 31-1-1991 when the appeal came up for regular hearing before a Division Bench comprising Abdul Razzak A. Thahim and Dr. Fida Muhammad Khan, JJ. The learned counsel for the appellant placing reliance on the case of Shah Nawaz and another v. The State PLD 1986 FSC 242 raised a plea before the learned Division Bench of this Court, that the intoxicant which was alleged to have been recovered from the possession of, the appellant was opium and not raw opium and that the appellant could not be awarded sentence under the 2 proviso to Article 4 of the Prohibition Order.
On account of this plea having been raised by the learned counsel for the appellant, the learned Division Bench made a request in the following terms for placing the matter before the Full Court:-- ""While hearing Criminal Appeal No.132/I of 1990, the learned counsel for the appellant referred to a case Shah Nawaz and another v. The State reported in PLD 1986 FSC 242. The important point in this case is interpretation of opium and raw opium. Raw opium has been introduced under Article 4 while in Article 3 of the Prohibition Order the word only opium is mentioned. The contention of the learned counsel is that whereas the appellant is found in possession of opium he can only be awarded the sentence of two years' imprisonment. In case raw opium more than one Kg. Is recovered he could be sentenced to imprisonment for life and fine. We feel that this matter bend placed before Full Court to consider the interpretation of opium and raw opium. The case be referred to Honourable Chief Justice for constituting Full Court."
7. The Chief Justice thus ordered that the matter be placed before the Full Court for its opinion which was, then, heard by the Full Court comprising Dr. Tanzil-ur-Rahman, C.J. And Dr. Fida Muhammad Khan, Abaid Ullah Khan, Mir Hazar Khan Khoso, Nazir Ahmad Bhatti, JJ.
8. Although a Full Bench of this Court had already noticed in the case of Shah Nawaz and another v.
The State that the use of two terms `opium' and `raw opium' indicated that these were two different substances yet the matter referred to the Full Court was discussed again in some detail. It was thus seen that `opium' and `raw opium' are two different substances. The common connotation of the term `raw opium' is that product which has not been relined or purified and it is in its natural extracted form whereas the substance `opium' is a purified and medically prepared substance. It was also noticed dangerous to human life and for that reason the offence relating to raw opium was more graver and entailed more grimmer punishment and that apparently was the intention behind the second proviso to Article 4 of the Order prescribing a sentence of life imprisonment and fine.
9. Noting this difference between the two substances and the punishment in respect of each of them, the Government was advised by the Full Bench of this Court as long back as 1986 that appropriate definition of the term `raw opium' may be provided by the legislature in the Order so as to differentiate it from the term `opium', but it is regretted that no amendment has been made so far. The only alternative left to this Court was to observe in the Full Court judgment that the Investigating Officer should in each case ask the Chemical Analyser to give opinion whether the substance recovered from an accused was `opium' or `raw opium'. The trial Court can also call the expert as a witness to obtain his opinion with regard to the category of the intoxicant to find out whether the substance recovered from the accused was `raw, opium' or `opium' and may then proceed accordingly.
10. The F.I.R., in the instant case, specifically mentioned that `raw opium', as recovered from the possession of the accused /appellant and so was stated on oath by the P.Ws. On the other hand the Chemical Examiner's Report mentioned the contraband as `opium'. In view of this discrepancy, we summoned Dr. Muzaffar Hameed Khan, Chemical Examiner, Rawalpindi, who 'had issued the said report (Exh.P.E.). He was examined by us on oath. The case-property was also summoned and produced in Court, which was wrapped in plastic bag and then in double cloth, duly sealed which was opened under order of the Court and was shown to him. He specifically stated that `the big plastic bag (green colour) contains the opium, whole of it, it is raw opium'. He was cross-examined by the learned counsel for the appellant, but the witness was not asked by the learned counsel any question as to the nature of the opium. We have, therefore, no doubt in our mind that the contraband is `raw opium' which-can be used to cause intoxication.
11. Learned counsel for the appellant next submitted that the parcels sent to the Chemical Examiner were received on 1-3-1989 and, therefore, it was late by one day. Admittedly, the occurrence took place on 27-2-1989 when the contraband was seized from the possession of the accused/appellant. The sample was sent to the Chemical Examiner on, 28-2-1989 which was received by the Chemical Examiner on 1-3-1989. It cannot, therefore, be said that there was any delay in sending or receiving the sample.
12. The learned counsel next submitted that the parcel was not received by the Chemical Examiner intact the submission is falsified by the Report of the Chemical Examiner which specifically stated that the sample was received
13. Learned counsel lastly prayed for reduction in sentence. We find no circumstance so as to warrant the reduction in sentence. The request is therefore, rejected. No other plea was taken by the learned counsel.