' Mustafa Khan son of Anwar Khan Yousafzai and Muhammad Tariq son of Adam Khan are appellants in this appeal. By judgment, dated 30-8-1994 of the learned Sessions Judge, Quetta, both the appellants were convicted under Article 3(1)(a) and Article 3(2)(i) of the Prohibition (Enforcement of Hadd) Order, 1979. On being found guilty of the offence under Article 3(1)(a) for transporting 32 Kg. Charas, they were sentenced to one year's R.I., five stripes and to pay a fine of rupees three thousand each or, in default of payment of fine, to suffer further S.I. For four months.
Under Article 3(2)(i) of the Prohibition (Enforcement of Hadd) Order, 1979, for transporting 10 Kg. Of Opium the appellants were sentenced to three years' R.I., five stripes and fined rupees four thousand each and in default of payment of fine, to suffer Si. For further six months.
2. Being aggrieved, appellants had filed the present appeal. Mr. H. Shakeel Ahmad, learned counsel for the appellants and Mr. Yakub K. Eusufzai, learned Advocate-General, Balochistan, have been heard at length. With the assistance of two learned counsel, I have gone through the entire record including the evidence, exhibits and the impugned judgment.
3. Complainant in this case is P.W. Muhammad Zahir (The Seizing as well as Investigating Officer) who was, in September, 1993, S.H.O. Of Police Station Railways Chaman. According to Marasala of the complainant, on 4-9-1993, Muhammad Zahir alongwith P.Ws. H.C. Muhammad Shabbir and Platform duty constables P.W. Abdur Rahman, Dolat Khan, Ali Asghar, Muhammad Ramzan and Muhammad Naseer were present on the train platform at Chaman Railway Station when a secret information was received from an informer that narcotics in a huge quantity was being smuggled to Quetta, in the engine of the Train 4880 Dn. Chaman passenger. Apparently, before the raid could be made, the train started to move from the platform and, in the circumstances, the train was got stopped by pulling the chain in the train. In engine room, the two appellants were on duty. Driver Mustafa Khan and fire-man Muhammad Tariq were present and incharge of the engine of the train in question. According to the Marasala, the engine of the train was searched and, from the battery room of the engine, two bags were recovered. One bag contained 32 Kg. Charas whereas the other bag contained 10 Kg. Of opium. Samples of 100 grams each of the material were separated for chemical examination and four parcels were prepared on the spot--- two parcels containing the samples and the other two parcels containing the remaining narcotics. According to the prosecution, as extra staff for taking the train to Quetta was not available and to avoid inconvenience to the passengers, the train was allowed to leave with the appellants incharge of the engine of the train.
4. On the basis of the Marasala, F.I.R. No,2 of 1993 under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, was registered on 4-9-1993 at Railways Police Station Chaman, District Qila Abdullah, against the appellants. According to the prosecution, after taking permission from the Railways authorities on 8-9-1993, the appellants were taken into custody, who denied the allegation and expressed their ignorance about the recovery of the narcotics. The complainant carried out the investigation and then submitted the challan on 14-9-1993. The trial Court framed charge under Articles 3 and 4 of the Prohibition Order, 1979, to which the two appellants pleaded not guilty. The prosecution examined 5 witnesses, namely P.W.1 Muhammad Bashir (marginal witness of the recovery); P.W.2 S.H.O. Muhammad Zahir; P.W.3 Muhammad Hanif (Station Master of Chaman Railway Station); P.W.4 Abdur Rehman (another police official, a member of the police party) who supported prosecution case of recovery of the said narcotics from the battery room of the Railway Engine and P.W.5 Abdul Jabbar (the Chemical Examiner) who examined the contraband goods and found them to be Charas and opium.
5. The statements of the two appellants were recorded under section 342, Cr.P.C. They also gave their statements on oath under section 340(2), Cr.P.C. And also produced two defence witnesses, namely, D.W.1 Muhammad Yaqoob (a Shedman at Quetta - Chaman Railway Station) and D.W.2 Atta-ur-Rehman (an employee of the Railway Department).
6. As observed earlier, believing the prosecution case and coming to the conclusion that the prosecution proved its case against the two appellants beyond reasonable doubt, the trial Court convicted and sentenced the two appellants as above.
7. The prosecution case depended on the recovery and the fact that the two appellants were incharge of the Railway Engine at the time the contraband goods were found and, therefore, they were guilty of consciously transporting the same in violation of the relevant provisions of the Prohibition Order. On the other hand, from the cross-examination of the prosecution witnesses and the evidence adduced by the appellants, the defence version was that the train had not been stopped and no recovery whatsoever was made and that the two appellants had been implicated in a false case. The prosecution case in so for as the recovery is concerned depended on the evidence of P.W., Muhammad Zahir (S.H.O.), P.W. Muhammad Shabbir (marginal witness of recovery) and P.W. Abdur Rahman, who had also seen the recovery being effected from the battery room of the engine. The recovery memo. Was prepared and signed by S.H.O. Muhammad Zahir. The two witnesses who signed the said recovery memo. (Exh.P.1/.A) were P.W. Muhammad Shabbir and P.W. Station Master Muhammad Hanif. Muhammad Hanif admitted his signatures on the recovery memo. But denied that the recovery had effected in his presence. According to him, two days later i,e, on 6-9-1993, he was called at the police station and forced to sign the recovery memo. He was declared hostile at the request of the District Attorney and was cross-examined on behalf of the prosecution. The evidence of this witness on which great reliance was placed by the defence is reproduced here in full:-- "On 4-9-1993 I was performing duty as Station Master Chaman. Chaman passenger reached Chaman Railway Station at about 1-50 p.m. After completing the shunting it left at 3-20 p.m.
Nothing was brought in my notice from the arrival till departure of the train. On 6-9-1993 I was called at police station and S.H.O. Asked me to sign the document as some recovery was made on 4-9-1993. I objected to the signing of the document but I was forced to sign the same and when I found that I will not be allowed to go without signing the document I signed the same. (At this stage request is made that the witness may be declared hostile as he being a recovery witness and has signed the recovery memo. As resiled from his statement. The counsel for accused raised objection but failed to support his objection which is overruled. Request allowed. The witness is declared hostile. P.I. Railway is allowed to cross-examine the witness: x x x x to P.I. Railway Muhammad Latif.
' I made no statement to police. It is incorrect that 32 Kg. Charas and 10 Kg. Opium was recovered from the engine of the train. It is correct that I signed the recovery memo. Voluntarily said that my signatures were obtained forcibly on 6-9-1993. It is incorrect that I am favouring the accused/persons because they are also railway employee. It is incorrect that I made statement to please my officers. I did not inform my officers that my signature was obtained on 6-9-1993 forcibly. x x x x x to Mr. Ayaz Swati, Advocate counsel for accused. Opportunity afforded. Nil."
8. Muhammad Hanif, Station Master, has apparently supported the defence version that in his presence no recovery had been made. However, in his deposition before the trial Court, he admitted his signatures on the recovery memo. The Station Master is an independent person and not a police employee. He held a senior position in Pakistan Railways. Recovery memo, is dated 4- 9-1993. His signatures on the recovery memo. Are admitted by the witness. According to him, he was forced to sign the recovery memo. On 6-9-1993 but admitted that he did not inform his officers that his signatures had been obtained on 6-9-1993 forcibly. The statement was recorded on 27-2- 1994 and it appears to be unnatural that during this period from 6-9-1993, he did not inform anyone including his superiors that his signatures had been obtained forcibly on 6-9-1993 by the police. He has not even stated that any threats were given to him that unless he signed the recovery memo. He will face dire consequences and that he should not disclose the fact that he had been forced to sign the documents to any other person including his superior officers. In my view, in the circumstances, the trial Court was correct in reaching the finding that the station master had signed the recovery memo. Voluntarily and had later on denied his version to help the appellants who were also Railway employees.
9. According to Mr. H. Shakeel Ahmad, no private witnesses were associated in the recovery proceedings and as such, the provisions of section 103, Cr.P.C. Have been violated. According to the learned counsel for the appellants, the prosecution had not been able to prove the recovery of the contraband articles from the Railway Engine. According to the learned counsel, the other three prosecution witnesses of the recovery, namely, P.W. Muhammad Zahir, P.W. Muhammad Shabbir and P.W. Abdur Rahman, all police officials, cannot be relied upon to establish the factum of recovery of the contraband articles.
10. Section 165(4) read with section 103, Cr.P.C. Requires that as far as it is possible in all searches during investigation section 103, Cr.P.C. Should be complied with. The relevant words in section 103, Cr.P.C. Are "so far as may be". In each case, therefore, when a search is being made during investigation, the Police Officers should ensure compliance of the procedure to be followed as required by section 103, Cr.P.C. As far as it is possible. In each case, therefore, it has to be seen whether there was no occasion for compliance of provisions of section 103 or an acceptable explanation by the Police Officer is available on record for non-compliance of the provisions of section 103. In this case, as noticed, secret information was received just about the time the train was leaving Chaman Station and, in fact, before any action could be taken for search and recovery, the train had already started to move. In the circumstances, urgent action was required to be taken and in fact was taken and the train was got stopped in an emergency by getting the chain pulled and immediately thereafter the search was effected resulting in the recovery of the aforesaid contraband articles. Then, Station Master, Muhammad Hanif is also recovery Mashir and he was an independent witness. Additionally it may be observed that no allegation had been made of any enmity on the part of the police against the appellants. No explanation has been given by appellants as to the reason for false implication. In the circumstances, I am of the view that the recovery is not liable to be disbelieved for the reason that two independent witnesses of the locality had not been made recovery Mashirs.
11. Mr. H. Shakeel Ahmad had also argued that, according to the defence version, no incident had at all taken place as averred by the prosecution. According to the learned counsel if train had been stopped immediately it had started moving, an entry to the effect would have been made in the relevant register which was admittedly not made. On this point the trial Court observed as follows:- - "I also see force in the contention of learned Prosecutor that the complaint register is only used for writing grievances of general public travelling in the train. Even otherwise no making of any entry in the complaint book regarding the present occurrence hardly make the prosecution case doubtful."
12. Then the defence witnesses produced by the appellants had stated that in the relevant records the schedule time of departure of train is mentioned to show efficiency despite, the fact that the train had left the station late.
13. In the circumstances, I may observe that as recovery had been established by the evidence led on behalf of the prosecution including recovery memo. Which also bore the admitted signatures of Station Master Muhammad Hanif, the fact that no entry had been made in the relevant record about the stop and immediately it had started moving and about incident in the complaint register would not demolish the prosecution case.
14. D.W.1 Muhammad Yaqoob, Shedman, a Railway employee has stated that on 4-9-1993 no incident had taken place as alleged by the prosecution. He was cross-examined and asked that he Was giving evidence to support a fellow railway employee, but he denied this suggestion. However, in reply to a question in cross-examination that whether the contraband goods were recovered from the Railway Engine, his reply was that he was not aware of this fact. The trial Court has not relied upon his testimony and I find no reason to take a different view.
15. The other question which requires serious consideration in this case is that recovery having been made from the battery room of the Railway Engine, whether this fact by itself would saddle conscious knowledge in so far as the two appellants are concerned and, as a consequence, can be convicted for the offence of transporting the contraband articles under Article 3 of the Prohibition Order, 1979. According to learned counsel for the appellants, even if the Court comes to the conclusion that the finding about the recovery of the contraband Charas and opium from the battery room of the Railway Engine is correct, no evidence has been brought on the record by the prosecution that the two appellants either had knowledge of the presence of the two bags in the battery room containing the contraband articles or they were involved, in any way, in the transportation of the said contraband goods. It was pointed out by the learned counsel for the appellant that when the train reached Chaman Station from Quetta, the charge of the engine (which includes the battery room) was taken over by the local staff which took the train to the turn- table for changing the direction of the engine and then the engine might have been cleaned/serviced and then attached to the train for return journey from Chaman to Quetta and during all this period the two appellants were not incharge of the Railway Engine. According to learned counsel, if at all any contraband items were found in the battery room of the engine, during thde aforesaid period, any other person could have placed the same for illegal purpose.
Then it was submitted that admittedly the charge of the engine for the return journey from Chaman to Quetta was delivered to the two appellants at 15-12 hours and train left the station at 15-20 hours which means that the appellants had only eight minutes possession of the engine before it started its journey from Chaman Railway Station for Quetta and it is not possible to believe that in this short period of eight minutes, the aforesaid bags were placed in the battery room with the knowledge and collusion of the two appellants.
16. In support of the proposition that, in the circumstances of the case, the appellants could not be saddled with conscious knowledge of the contraband goods, the learned counsel has relied upon the following reported judgments:--
(i) State v. Pervaiz Iqbal PLD 1978 SC 64: ' This was the case under Explosive Substances Act, 1908. Several accused were tried by the Special Court under sections 5 and 6 of the said Act. The explosives were kept in a small room in a building.
The said high explosives were kept in a room for several months and in that room tea was also prepared regularly, but no explosion had occurred. According to the Supreme Court, if the accused were responsible for smuggling the boxes containing explosives into the room, they must have knowledge of the manner in which the explosives could have exploded, but despite the occupants leaving the room, the accused remained in the room till the time of his arrest and, therefore, the circumstantial evidence was inconsistent with the hypothesis of the accused having smuggled the boxes into the room as well as of his being aware of the contents of the box. This judgment is not relevant and clearly distinguishable.
(ii) Said Shah v. The State PLD 1987 SC 288: ' The Shariat Appellate Bench of the Supreme Court of Pakistan in this case held that under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, the intention of law was that the culprits should be found to have transported or possessed the. Intoxicants with consciousness about commodity that it was an intoxicant, but whether the driver or conductor of a public vehicle was conscious regarding contents of goods he was transporting or carrying would, however, depend upon the circumstances of each case and it was not necessary to lay down any hard and fast rule in such behalf. In the said case noting the concurrent finding of fact by Courts below that appellants were aware about contents of crates of liquor, there was no justification found for interference with such findings.
' Zaheeruddin v. The State PLD 1988 FSC 29: ' In this case, a Divisiodn Bench of this Court observed that, under Article 4 of the Prohibition Order, 1979, possession implies dominion and consciousness. It was held that possession should be conscious and intelligent and riot merely physical presence of accused in close proximity to the object and no hard and fast rule about conscious possession could be laid down and whether a person will be considered in conscious possession regarding contents of the goods he was carrying in a suit-case would depend upon circumstances of each case. In this case, reliance was placed by the Federal Shariat Court on the aforesaid judgment in Said Shah's case reported in PLD 1987 SC 288.
(iv) Itbar Khan v. The State 1989 M LD 736: ' This is also a judgment of a Division Bench of the Federal Shariat Court. The appellant had been convicted by the trial Court under Articles 3 and 4 of the Prohibition Order, 1979, for transportation and possession of 8 kilograms of heroin. He was a passenger in a car. The Federal Shariat Court in allowing the appeal and acquitting the appellant held that, in law, knowledge of accused is necessary for conviction and the consistent view of Courts is that accused must be conscious that he is transporting incriminating articles. It was observed that it cannot be presumed that a person travelling in a car has knowledge of the contraband goods when the same is concealed in it as it is the owner or driver of the car who has control over body of the car and not the passenger travelling in it. The Court noted that the prosecution led no evidence to prove that the appellant knew that heroin was concealed under the feat and in the doors of the taxi hired by him and that there was no material on record for drawing inference that appellant was connected with the heroin recovered in the case. This case is also distinguishable inasmuch as in the present case the two appellants, according to the prosecution evidence as well as the defence case, were incharge and in possession of the Railway Engine, in the battery room of which engine the contraband goods were found and it was neither the prosecution case nor the defence plea that the two bags containing substantial quantities of Charas and opium had been hidden in the engine at a place where the same could not be seen or located without a thorough search.
(v) Hussain Bibi v. The State 1991 PCr.LJ 677: ' In this case decided by a Division Bench of the Federal Shariat Court the facts were that the police had detained a family consisting of husband and wife and their children including a suckling baby travelling in a wagon and on search heroin wrapped in polythene bag was recovered. Recovery of heroin was proved by cogent evidence, but there was no material available on record either to support or even suggest that the female accused (the wife) was either owner or a conscious carrier of the polythene bag or had knowledge of the contents of the bag and as such she could not possibly be fixed with the liability of being a carrier of narcotics with knowledge. In the circumstances the wife was acquitted of the charge.
(vi) Noorul Haq v. The State 1992 SCM R 1451: ' The Shariat Appellate Bench of the Supreme Court of Pakistan observed in this case that a person charged with a criminal offence is to be saddled with a liability only if prosecution has established its case against him beyond all reasonable doubt adding that plea taken by the accused may be false, but he cannot be convicted on such false plea. In this case, the appellant was a passenger.
Driver of the car had been released by the police and the owner of the car, who had been convicted, had not filed any appeal. The Supreme Court held in this case that no presumption arose against the accused and he could not be convicted on the false defence as prosecution had to succeed on its own case. The accused was acquitted in the circumstances on having of doubt.
This case is also of no assistance to the appellants. As already observed, the appellants, admittedly, were incharge and in control of the Railway Engine including the battery room of the engine.
17. On the other hand, the learned Advocate-General, relied upon a judgment of the Shariat Appellate Bench of the Supreme Court in the case of Nadir Khan v. The State reported in 1988 SCM R 1899. In this case, the Customs Officer received information that heroin was being smuggled from the tribal areas of Khyber Agency and that it was being taken by road in a car to Karachi. The suspected car was stopped near Bahawalpur. It was being driven by Nadir Khan and other appellant Said Jan. Maintaining the conviction and refusing leave to appeal, the Supreme Court held as follows:-- "We have gone through the evidence on record and find that the petitioners had the charge of the vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being person incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependent on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it."
18. For establishing the guilt of an accused under Article 3 of the I Prohibition Order, 1979, what is required is that the culprit was found to have C transported the intoxicant with consciousness about the commodity that it was an intoxicant. In the present case, if the two appellants can be saddled with the knowledge that there were two bags in the battery room which contained contraband narcotics, they would be guilty under Article 3 of the Prohibition Order, 1979, for transportation of the contraband narcotics. I have already reached the conclusion that the finding about recovery of Charas and opium from the battery room of the Railway Engine by the trial Court is not liable to interference. Therefore, the next question for consideration is that whether the appellants can be saddled with knowledge that in the battery room contraband goods were lying and, therefore, being transported. It is neither the prosecution's case nor the defence version that contraband good in such huge quantities in bags were lying concealed in some part of the battery room. It can, therefore, be safely presumed that the two bags containing the contraband goods were not concealed, but were lying openly in the battery room. It is also an admitted position and confirmed by the defence witnesses that the appellants were incharge and in control of the entire engine including the battery room and no other person had any right to enter the Railway Engine.
The two appellants had taken charge of the Railway Engine before the train started its journey from Chaman to Quetta. At the relevant time, therefore, the two appellants were incharge and in control of the Railway Engine including its battery room and that the two bags with such huge quantities of contraband were lying openly in the battery room. In these circumstances, conscious knowledge of the contents of the two bags can safely be attributed to the two appellants.
19. The argument that the two appellants had only eight minutes available i,e, from 15-12 hours when charge of the Engine was handed over to them and 15-20 hours when the train started, would not lead to the conclusion that during this period the contraband goods could not have been placed in the battery room. In any case, even if the goods had been placed in the battery room before the charge was given to the appellants, they would be deemed to be aware of the contents of the contraband goods in the two bags. In the circumstances of the case, when charge and control of the Engine was delivered to them and they had conscious knowledge of the contraband goods, its transportation by them as incharge and in control of the Railway Engine, the offence under Article 3 of the Prohibition Order, 1979, stood proved.
20. As held by the Supreme Court, the question of conscious knowledge depends on the facts and circumstances of each case and no hard and fast rule can be laid down in this regard. In the present case, the facts and circumstances established conscious knowledge of the contraband goods on the part of the two appellants and as such the trial Court came to the correct conclusion that they were guilty of transporting the same.
21. Finding no ground for interference in the impugned judgment, dated 30-8-1994 of the learned Sessions Judge, Quetta, in Hudood Case No,44 of 1993, this appeal is hereby dismissed.