1. ' AJMAL MIAN, J---By this common judgment we intend to dispose of the above two appeals which have been filed directly as the Federal Shariat Court had enhanced the sentences from 15 years' R.I.
2. On each count under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (to be referred hereafter as the said Order) to that of life imprisenment for each count with the direction that the same shall run consecutively.
3. ' The brief facts are that on 4th September 1988 at 7-p.m. At Check Post Attock Khurd, the checking staff comprising the complainant and other police officials stopped Truck No,2093-PRC driven by appellant Nur Hussain whereas appellant Muhammad Amin was sitting with him on the front seat.
4. The truck was loaded with large glass sheets. On suspicion the above party interrogated the appellants who disclosed that there were secret chambers behind the driver's, seat which contained heroin. Thereupon planks behind the seat were removed and from where 66 packets of heroin were discovered. Upon weighment it was found that 62 packets were of one Kilogram each whereas the remaining four packets were of half kilogram. Thus the above 66 packets contained in all 64 Kilograms of heroin. It appears that 5 grams of. Material from each of the packets were taken and scaled into a parcel which were to be sent to the Chemical Examiner for analysis. 33 packets were put in one packet and 33 remaining packets were put in another packet which were also sealed. The key of the truck, its route permit No,8661 of 1987, registration and insurance papers were also taken into possession. The two appellants were also personally searched. Appellant Nur Hussain carried a photo copy of his identity card, driving licence and a sum of Rs,400 which were also taken in possession. A written report of the above incident was sent by Mian Muhammad S.I, SHO for recording FIR which was recorded by ASI Khan Muhammad at 8-35 p.m. On the same day.
5. ' The prosecution in support of the case examined P.W.1 Muhammad Mushtaq, F.C. Who stated that on 10-9-1988 he received the sealed parcel from Khan Muhammad Muharrar, ASI and delivered the same intact in the office of the Chemical Examiner on the same day. P.W.2 Khan Muhammad stated that he received a written complaint Exh.PA from Mian Muhammad S.I., SHO on which he registered above formal FIR. He also stated that the same day he had been handed over three parcels for safe custody in Malkhana by Mian Muhammad out of which he gave the sample parcel on 10-9-1988 to P.W. 1 for its transmission to the Chemical Examiner. P.W.3 Mian Muhammad, SI and P.W.4 Muhammad Farooq, ASI. Chemical Examiner's report was also produced Exh.PE.
6. ' The appellants in their statement under section 342, Cr.P.C. Admitted the above position except the time of 7 p.m. And the recovery of the heroin on their disclosure. They admitted that they were stopped at the Check Post Attock Khurd and that Nur Hussain appellant was driving the truck and Muhammad Amin was sitting by his side. They denied the recovery of 64 kilograms of heroin from the secret chambers found at the back of the driver's seat. They also denied preparation of the samples and the report of the Chemical Examiner Exh.PE. They stated that they were standing at Adda Adam Zai when the owner of the truck came and asked them if they could take the truck with glass sheets loaded from Police Glass Factory, Naushera to Haroonabad, as his driver has suddenly fallen ill. The appellants negotiated the wages which were agreed as Rs,400. They further stated that they reached the factory and loaded the truck with glass and left for their destination. They admitted the stoppage of truck at the check post but denied the recovery from the back side of the driver's seat on their pointation or disclosure. It was alleged that the police had concocted a false story. They declined to become witness or to examine any defence witness.
7. ' The learned Sessions Judge Attock after hearing the learned counsel for the parties, by his judgment dated 28-9-1989 convicted both the appellants under Articles 3 and 4 of the Order and sentenced them to 15 years' R.I. For each count, whipping 30 stripes and a fine of Rs,10,000, in default R.I for further period of 3 months. It was also ordered that substantive sentence on two counts shall run concurrently and the accused would also be entitled to benefit of section 382-B, Cr.PC.
8. ' Against the above conviction and sentences appellants filed appeals before the Federal Shariat Court which according to the learned counsel for the appellants were admitted for regular hearing on 28-11-1989. On 14-3-1990 the Federal Shariat Court issued suo motu notice to the appellants for enhancement of sentence. After hearing the learned counsel for the parties, a Division Bench of the Federal Shariat Court, by its judgment dated 26th June, 1990 enhanced the above sentence in the above terms.
9. ' Appellant Nur Hussain filed above appeal within time whereas appellant Muhammad Amin sent a jail appeal which was barred by 760 days. Since both the appealls are directed against common judgment, we condone the above delay.
10. ' In support of the above appeal Mr. Nasir Saeed Shaikh, teamed counsel for the appellant has urged that the conviction of the appellants under clause (2) of Article 3 of the Order is not sustainable as the heroin is not mentioned in Article 3. We may observe that this contention was not raised by the appellant before the two Courts below. However, according to the learned counsel for the appellants this is a legal point which can be raised by him at this stage. Even if we were to consider the above submission, it is not tenable in the absence of any material on record to show that heroin is not one of the derivatives from opium or coca leaf, which is lacking in the case in hand. If the appellant would have put any question to the prosecution witnesses on the above aspect and would have brought out some material in their favour, they might have some case to argue. There is no doubt that the prosecution is to prove the case against an accused person beyond reasonable doubt but at the same time if an accused person wants to rely upon a plea which is founded on the mixed question of fact and law, he is supposed to lay foundation before the trial Court.
11. We have also compared Articles 3 and 4 and we have found that there seems to be apparent reason for mentioning heroin, cocaine, raw opium or coca leaf separately in Article 4 as different quantities for the commission of the offence have been provided namely, 10 grams in the case of heroin or cocaine and one kilogram in the case of raw opium or coca leaf. The word "derivatives" has not been employed in Article 4 which has been used in clause (2) of Article 3. Learned counsel for the appellant has not been able to point out from any literature that heroin is not one of the derivatives of opium or coca leaf.
12. ' Then it was urged by Mr. Nasir Saecd Shaikh learned counsel for the appellant that the issuance of enhancement notice on 14-3-1990 was not warranted by law as the proper stage for issuing of the notice was after hearing the regular appeals. In support of the submission he has relied upon the case of Mughal Naran v. Emperor reported in AIR 1925 Bombay 268 and the case of Parashram Bhika and others v. Emperor report J in AIR 1933 Bombay 158. There is no doubt that in the above two cases the Bombay High Court while construing section 439, Cr.P.C. Has held that notice for enhancement under the above section should be issued after disposal of appeal. However, we find that subsection (2) of section 439 provides that no order shall be made to the prejudice of the accused unless he had an opportunity of being heard either per sonally or by a pleader in his own defence. The above provision in the present case has been complied with. If the Federal Shariat Court after admission of the above appeals was of the view that the sentences awarded by the trial Court were not warranted by law it could have issued a notice under clause (2) of Article 203- DD of the Constitution for the enhancement of the sentence. Factually the Federal Shariat Court has not enhanced the sentence under section 439, Cr.P.C. But it has exercised its jurisdiction under clause (2) of Article 203-DD. In this view of the matter, even otherwise the above judgments are not applicable.
13. ' It was then urged . That the Mashirs to the recovery were police personnel and P.W.-2 has given the colour of the material seized as brown and white and not grey and, therefore, it has created doubt. It is a well-settled proposition of law that police personnel are as competent witnesses as anyone else in the absence of any material to indicate that they were biased or prejudiced for some extraneous reason. There is nothing on record to show that the Mashirs to the reovery who were the police personnel had any personal motive against the driver and the cleaner. The above alleged contradiction of P.W.2 is also of no consequence as the Chemical Examiner's report has proved the factum that the packets which were referred contained heroin.
14. ' It was next urged that in any case the appellants being driver and cleaner could not have, been visited with the sentences under Articles 3 and 4 of the Order simultaneously. Reliance has been placed by him on the judgment of this Court in the case of Sahibzada and another v. The State reported in 1991 SCM R 895, wherein the following observations were made:- "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.
15. ' 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."
16. The above judgment in fact supports the learned counsel for the appellant's above submission. We would in terms of the above judgment set D aside the appellants' conviction and sentences under Article 4 of the Order but would maintain the conviction and sentences under Article 3 of the Order.
17. ' However, we may observe that the learned counsel for the appellant has vehemently urged that either sentence of 7 years be awarded or in any case the original sentence of 15 years be restored instead of maintaining the enhanced sentence of life imprisonment imposed by the Federal Shariat Court. In support of the above submission he relied on the judgment of this Court in the case of Muhammad Rafique v. The State reported in 1990 SCM R 602, in which this Court restored the original sentence of 7 years awarded under Article 4 of the Order by setting aside the enhanced sentence of life imprisonment awarded by the appellate Court below. We may observe firstly, that the above case was under Article 4 and not under Article 3 of the Order and secondly, the question of sentence is a matter of discretion. It cannot be denied that since July 1989 when the above reported case was decided the things have not improved. The trafficking in the narcotic has brought bad name to the country inasmuch as in the European countries and United States Pakistanis are considered as smugglers in narcotic besides factum that the consumption of narcotic has considerably increased among the young generation in Pakistan which is destroying the peace of mind of many families.
18. ' We are mindful of the factum that the appellants were not the owner of the heroin recovered but they were merely carrier. In our view, unless the carriers of narcotic are awarded deterring punishment, no improvement can be expected. At the same time we may observe that the Government functionary entrusted with the prosecution of the smugglers of narcotic generally fails to catch owners of the narcotic who generally manage to remain uncaught. The Government should pay attention to this aspect as it is damaging the image of Pakistan in the community of nations of the world.
19. ' We would also allow the appellants benefit of section 382-B, Cr.PC. With the above modification the appeals are dismissed.