' This appeal challenges the conviction and sentence awarded to the appellant by the learned Additional and Sessions Judge-II Mardan in a case arising out of F.I.R. No,376 dated 2-10-1988 lodged by complainant Ehsanullah Khan at P.S. Saddar Mardan and registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order).
2. Appellant Gul Muhammad and four other co-accused namely Iqbal, Nasir, Sadbarg and Said Ahmad Shah were sent up to stand their trial for the charge of transporting 35.964 Kg. Of contraband heroin contained in 36 packets each weighing 999 grams which was recovered from a truck No,3455/MR on 2-10-1988 at 14-00 hours by a police party headed by Ehsanullah Khan, S.H.O.
Police Station, Saddar, Mardan after receiving a secret information and putting Nakabandi on Mardan-Nowshera Road opposite to Police Post Maseeti, Mardan. The truck was loaded with tobacco bundles and it was being driven by accused Said Shah (since absconding) while the present appellant was sitting beside him on the front seat as cleaner of the said truck. Fifteen packets of heroin were found from beneath the seat of the driver and cleaner while 21 packets of heroin were found hidden in the spare wheel. Samples of one gram from each packet were separated and sent to the F.S.L. Said Ahmad Shah and Gul Muhammad cleaner (the appellant) were arrested, the F.I.R. Was lodged under Articles 3 and 4 of the Order and after usual investigation challan was submitted by the S.H.O. On 6-3-1989 against five persons as mentioned above.
Examination Report received from Forensic Science Laboratory shows the samples to be containing heroin. The three accused namely Iqbal, Sadbarg and Nasir were made accused in this case on the statement of accused Said Ahmad Shah who had disclosed that although the truck belonged to him but the heroin belonged to those three persons. It was also stated by him that the cleaner (means appellant Gul Muhammad had also been engaged by the said three accused persons. Out of those three accused persons Iqbal and Nasir were arrested and Sadbarg remained fugitive from law but was ultimately arrested. The documents of the truck were sent to the F.S.L. But the original numbers were not found legible to ascertain the real ownership of the truck. Confessional statements of accused Said Ahmad Shah and appellant Gul Muhammad had alsb been got recorded on 8-10-1988 when they were produced before a Magistrate. The charge previously made was amended on 4-1-1993 after the supplementary challan was submitted on the arrest of accused Sadbarg instead of starting separate proceedings against him which does not appear proper particularly when the Court had already consumed more than one year to record the evidence of witnesses in the beginning of 1990.. The prosecution examined 10 witnesses in support of their case and closed its side. All the five accused persons got them examined under section 342, Cr.P.C. Wherein they refuted the allegations of prosecution. They neither wished to be examined on oath nor intended to produce any defence. Before the matter could be finally disposed of, the learned Judge of the trial Court was transferred and the newly transferred Judge could not decide the said case in time because the main accused Said Ahmad Shah had absconded before the impugned judgment could be announced by the learned Additional Sessions Judge-II, Mardan. However, the judgment was at last pronounced on 15-10-1995 i,e, after about 7 years from the date of lodging F.I.R. In this case. Appellant Gul Muhammad was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer R.I. For seven years, whipping numbering 20 stripes and fine of Rs,15,000 (in default one year R.I.). He was also convicted under Article 4 of the said Order and sentenced to suffer R.I. For five years, whipping numbering 20 stripes and fine of Rs,10,000 (in lieu thereof six months R.I.). Both the main sentences have to run concurrently with benefit of section 382-B, Cr.P.C. Accused Said Ahmad Shah was declared proclaimed offender and remaining three accused were acquitted.
' Being aggrieved by and dissatisfied with the conviction and sentence awarded to the appellant, the present appeal was preferred by him.
3. It is evident from the above detail that there are two sets of accused in this case. One set consists of two accused namely Gul Muhammad (the present appellant) and Said Ahmad Shah who absconded before the judgment could be announced. It is strange for me to observe that nothing is mentioned in the judgment as to how the said accused had been released before he had absconded, if he was on bail then who had stood surety for him and what steps were taken by the Court against that surety.
' The second set consists of 3 accused persons namely, Iqbal, Sadbarg and Nasir who were made accused on the statement of Said Ahmad Shah. No evidence could be brought by the prosecution against this set of accused persons except the statement of absconding accused Said Ahmad Shah. Hence they were rightly acquitted by the Court. The case against absconding accused Said Ahmad Shah needs not to be commented upon because it may prejudice the case of the prosecution or the accused when the proceedings would start after his arrest. Hence I would like to limit this judgment to the role played by appellant Gul Muhammad.
4. The learned counsel for the appellant has assailed the judgment of trial Court firstly on the ground that the appellant could not be convicted under Article 3 as well as under Article 4 of the Order. Contention of the learned counsel appears to be based on sound reasoning because Article 4 of the Order encircles offences of owning, possessing or keeping in custody any intoxicant while Article 3 of the Order includes such offences where possession of intoxicant is not excluded. The aspect can briefly be stated as that offences under Article 4 of the Order do not include offences under Article 3 of the Order but offences under Article 3 include offences under Article 4 of the Order. Therefore, punishment under both Articles of the order cannot be awarded to an accused if facts of the prosecution case relate only to one incident. On the basis of this proposition the appellant could either be convicted under Article 3 or under Article 4 of the Order but not under both Articles as was done by the trial Court in this case. Hence the judgment of the trial Court is liable to be set aside to that effect only. Reliance, in this regard, can be placed on a case reported as Muhammad Ayub v. The State (1992 SCM R 108). But this defect cannot be a foundation for acquittal of the accused. In the light of above discussion, the sentence awarded to the appellant under Article 4 of the Order is set aside.
5. The sentence awarded under Article 3 of the Order requires every trial courts to mention specifically under what specific offence an accused was convicted because this Article includes several offences such as importing, exporting, transporting, manufacturing, booting, selling etc. It would not be sufficient, rather defective, to declare only that an accused is guilty under Article 3 of the Order. The said Article contains two sub-Articles. Sub-Article (1) contains four clauses from (a) to (d) while sub-Article (2) contains clauses (i) and (ii). It is therefore, necessary for the trial Court to specify the relevant clause of the two sub-Articles of Article 3 of the Order while convicting an accused in the said Article.
' If the trial Court goes on ignoring this aspect and convicts an accused in a routine without specifying the respective clause of Article 3 of the Order it may be presumed that the trial Court has not pronounced a proper judgment and, in several cases, it may become a foundation of acquittal for an appellant with damaging impression against the trial Court regarding its working.
6. The learned counsel for the appellant also assailed the impugned judgment by urging that act of the present appellant is not attracted by any of the term used for offences in Article 3 of the Order. He also relied upon two cases reported as Muhammad Rafiq v. The State 1990 SCM R 602 and Akber Zaman v. The State 1993 SCM R 229 in support of his contention.
7. It may be useful to reflect certain glaring aspect of the two referred cases before touching the contention of the learned counsel for the appellant on this point.
' In the case of Muhammad Rafiq (supra). Accused had been awarded 7 years' rigorous imprisonment with fine of Rs,10,000 (in lieu thereof one year R.I.) as also 10 stripes by the trial Court but, in appeal. This sentence was enhanced to life imprisonment as also fine of Rs,1,00.000 (one lac) (in default 4 years' R.I.) and 20 stripes by placing explicit reliance on_the testimony of P.W.
Captain Races Ahmed. The said statement included such admissions also which had provided benefit to the accused. This truthful admission of defects by the witnesses impressed the Court so much that the Court made it the basis of credibility and presumed several other parts of the statement to be based on truth. The Hon'ble Supreme Court, in its revisional jurisdiction put a very important question while setting aside the enhanced sentence which reads as under: "The highest punishment of imprisonment for life, if is awarded to a person who is neither owner, smuggler nor a carrier but only is found in possession of the narcotics what higher punishment would be reserved for a carrier, owner and still higher (or higher) for a racketter/smuggler."
' The case of Muhammad Rafique v. The State (supra), alongwith reference of two other cases reported as Nadir Khan v. The State 1988 SCM R 1899 and Bonifacio A. Burayag v. The State PLD 1990 SC 988, became a foundation for grant of leave to appeal on the point of sentence in the case of Akbar Zaman v. The State 1993 SCM R 229 to consider a question, after the petitioner came out with truth at that stage. The said question was worded as under:-- "This element of truth at apex has laid down the foundation for granting leave to appeal on a substantial question of sentence and the foundation for a great success ultimately in appeal. If the same is accepted his life imprisonment can might be reduced to about 7 years' R.I. As has been the case in some of the reported judgments."
' It is noticeable that the judgment in the case of Muhammad Rafique 1990 SCM R 602 was pronounced by the Hon'ble Supreme Court on 11-12-1989 with a specific question as quoted above but the said question was kept unanswered in the said judgment. After about 3 years of the said judgment the Hon'ble Supreme Court granted leave to appeal on 20-10-1992 to consider the said question by passing an order in the case reported as Akber Zaman v. The State 1993 SCM R 1899. Till the disposal of the appeal in hand I failed to find out the answer to that question regarding quantum of punishment for (i) owner, (ii) smuggler, (iii) carrier or racketeer etc.J
8. If the two referred judgments of the Supreme Court read with Article 3 of the Order, then following terms appear to be used for offenders involved in the business of heroin i,e, (i) importer (ii) exporter, (iii) transporter, (iv) manufacturer, (v) bottler, (vi) seller, (vii) owner, (viii) smuggler and
(ix) carrier. Thus, the question for consideration of this Court is which of the terms mentioned above can be made applicable in the case in hand. The learned trial Court has not clearly pointed out the specific term which could attract the act of present appellant and be treated an offence. As per contention of learned counsel, act of the appellant, even if the prosecution story is treated to be the Qura'nic Truth, is not attracted by any of the terms used in Article 3 of the Order or the terms used in the referred judgments.
9. No doubt the judgment of the learned trial Court is silent with reference to the specific term but from the facts of the case it can be easily ascertained that the learned trial Court convicted the appellant by treating him to be transporter because he was travelling in a truck with his knowledge that heroin was going to be transported by concealing it in the said truck. This is one presumption which can be derived from the reality that he was working as cleaner and he was engaged by the driver/owner of the truck namely Said Ahmed Shah who absconded. The second presumption is that the appellant was serving as carrier engaged by the acquitted accused persons namely Iqbal, Sadbarg and Nasir to travel in the truck which was carrying the seized heroin. This presumption is based upon the statement of absconding accused Said Ahmed Shah.
10. If the statement of an accused cannot be relied upon to convict one set of co-accused persons then no portion of that statement can be used against any other set of accused persons of the same case unless the said portion of the statement is corroborated by other pieces of evidence.
On the basis of this proposition I am unable to share the conclusion reached by the trial Court to convict the present appellant. Admittedly learned trial Judge has not relied upon the statement of Said Ahmed Shah to convict the second set of accused person on account of which they were acquitted. Therefore, the learned trial Court was not justified to convict the present appellant on the basis of the said statement to believe that the appellant had been engaged by the second set of accused person.
Similarly it is an admitted position that the appellant was neither the owner of truck which contained the concealed heroin nor was the owner of said heroin, But this factual aspect was not denied by the appellant regarding his travelling alongwith absconding accused Said Ahmad Shah when about 40 Kgs. Of heroin was recovered from the truck, The learned trial Judge, therefore, convicted the appellant perhaps by presuming that he was also attracted by the term transporter or carrier alongwith the main accused Said Ahmed Shah. This Court is unable to uphold presumption of the trial Court, The heroin recovered from the truck was exclusively in the control of owner/driver of the truck, therefore, I have no hesitation in my mind to hold that, in circumstances of the case, only Said Ahmad Shah be treated the transporter as well as the carrier and not his cleaner the present appellant. Hence he could not be convicted under Article 3 of the Order too.
11. It was contended by the learned counsel for the State that the appellant was travelling with the owner/driver of the truck which contained heroin. He was not a passenger of a bus but was travelling in the truck with the main accused. Therefore, he was working with those accused persons in capacity of an employee as a cleaner of Said Ahmad Shah or an agent of certain hidden hands who had sent him to travel alongwith Said Ahmed Shah so that he could keep his eyes open upon Said Ahmed Shah. It was thus contended by the learned counsel for the State that these circumstances clearly show that he was equally responsible in the crime of transporting heroin. This presumption could have some weight if there had been some evidence against the appellant to that effect. Reliance in this regard can be placed on Muhammad Akber Samejo's case reported in 1992 PCr.LJ 1279 and 1992 SCM R 2310 where an employee was not held guilty for an act of his master.
' As there is no convincing evidence on this point therefore, the appellant cannot be held guilty on such presumption.
12. Although the appellant appears to be not guilty of an offence attracted by Article 3 or 4 of the Order yet the question arises whether he be treated innocent particularly when the circumstances clearly radiate that the appellant had knowledge of this fact that heroin was going to be transported because he was not travelling in the said truck aimlessly. He was fully aware of the actual offenders and their role but he became a cause of saving the actual offenders by not giving true informations particularly about the absconding accused Said Ahmed Shah with whom he was travelling. He also did not play any appreciable role by means of which the absconding accused could be arrested. I have therefore, no hesitation to hold that although the appellant cannot be proved guilty under Articles 3 and 4 of the Order on account of certain technicalities yet he is undoubtedly guilty of an offence punishable under sections 201 and 202, P.P.C. I, therefore, convict the appellant under sections 201 and 202, P.P.C. Appeal is thus dismissed with the following modification in the sentences:
(i) The sentence of R.I. For 7 years is reduced to 2-1/2 years' R.I.
(ii) The sentence of fine is maintained but in default of payment of fine the appellant has to suffer six months' S.I. Instead of one year R.I.
(iii) Sentence of whipping is dropped on account of newly promulgated Act No, VII of 1996.
(iv) The appellant shall also be entitled to the benefits of section 382-B, Cr.P.C.
13. As the learned Additional Sessions Judge-II, Mardan has kept the impugned judgment totally silent on several points, hence, the learned trial Judge is required to send all those details about the observations made in para. 3 of this judgment to this Court within one month from the date of its pronouncement The office is required to issue separate letter too to the learned trial Judge for compliance of the order of this Court. If nothing is received from the said Court regarding compliance of the order of this Court then this matter be fixed after expiry of one month before this Court so that proceeding be started against the learned trial Judge for non-compliance of the order of this Court.