' FAZAL-UR-REHMAN, J.---The appellants have called in question judgment dated 31-8-1999 of the learned Additional Sessions Judge/Special Judge, Control of Narcotic Substances, Quetta whereby they were convicted under section 9 (c) of Control of Narcotic Substances Act, 1997 (hereinafter called as Act) and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs,20,000 or in default of payment of fine to further undergo S.I. For a period of six months.
2. Since in both of the abovementioned appeals common questions of law and facts are involved and arising out 9f one and the same judgment, therefore, they will be disposed of together by one judgment.
3. Brief facts of the case are that on 24-9-1998, P.W. Captain Sheeraz Tabbasum, Assistant Director Anti-Narcotics Force after seizing the narcotic as a result of raid recorded the F.I.R. Being Crime No,14 of 1998 under sections 6,7 and 9, of the said Act against the appellants. It is stated that on receipt of certain secret information to the extent regarding narcotic business in the Universal Dry Cleaner situated at Sariab Road near Burma Hotel, Quetta, a raiding party consisting of P.W.
Captain Sheeraz Tabbasum and other staff members of Anti-Narcotics Force on 24-9-1998 at about 9.00 a.m. Reached the place and started surveillance. At about 10.00 a.m. The party saw appellant Ghulam Earooq alias Ghulam Qasim carrying a packet and proceedings towards the said shop. He was entering the shop when he was overpowered and on opening of paket, Opium weighing Two Kilograms was recovered. It is stated that appellant Muhammad Abbas was present in the shop and his personal search resulted into the recovery of 800 Grams of baked charas. It is stated that the weighment in respect of seized Opium and Charas was carried out at the spot and separate parcels were prepared. The same were taken into possession vide recovery memo. Exh- P/1-A. The recovered narcotics were sent to the laboratory and after chemical examination, Chemical Expert gave positive report vide Exh.P/3-A. After usual investigation on a charge-sheet (Exh.P/4-A) was put up against the appellants and one Muhammad Arif was shown as absconder.
4. On 13-5-1999 a formal charge was framed against the appellants to which they pleaded not guilty and claimed trial.
5. At trial the prosecution examined complainant Captain Sheeraz Tabbasum (P.W.1), Zahid Hussain, recovery witness (P.W.2), Syed Abdul Jabbar, Chemical Expert (P.W.3) and Bashir Ahmed, Investigating Officer, (P. W .4).
6. The appellants in their respective statements recorded under section 343, Cr.P.C. Denied the case of prosecution and claimed innocence. They, however, neither led any evidence in defence nor examined themselves on oath.
7. The learned trial Court famed the following point for determination:--
(i) whether accused persons were found in possession of Opium and Charas when searched by the officials of A.N.F.?
8. On assessm ent of evidence the appellants were found guilty and were convicted and sentenced in the manner herein abovementioned.
9. We have heard Mr. Muhammad Aslam Chishti, Advocate learned counsel for the appellants and Mr. Tariq Mehmood, Advocate, the learned Special Prosecutor for Anti-Narcotics Force Quetta and have gone through the record of the case.
10. The main contention of the learned counsel for the appellant is that there were two offences not having been so connected as to form the same transaction should have been separately tried and a joint trial held in the instant case was illegal being in violation of the provisions contained in the Criminal Procedure Code. Sections 235 and 239, Cr.P.C. Permit a joint trial of offences forming the same transaction if committed in the course of the same transaction. Learned counsel has, however, not pressed this point while concluding his arguments. In an authority repotted in PLD 1965 (W.P.) Peshawar 65, it has been held that criminal cases cannot like civil suits, be consolidated and try together on the same evidence, except within the limits as to the joinder of charges laid down in the Criminal Procedure Code. Again sections 234 and 239 are merely permissive and not mandatory i,e, it is for the prosecution to try the accused on different offences in one trial as provided by those sections, but in case the prosecution decides to split the charges and try him separately on those charges the accused cannot insist on joinder of charges.
11. From the facts of the case and the evidence which has come on record, it appears that two 'offences cannot be deemed to have been so connected as to form one and the same transaction or to have been committed in the course of the same transaction. It is an admitted position that recoveries of Charas and Opium have been effected from the personal possession of individual accused. Neither the prosecution has applied section 34, of the P.P.C. Nor the charge has been framed nor any evidence has came on record which can indicate that both the accused had shared common intention or there was connection between the acts and the transaction. Neither any evidence has come on record regarding joint possession nor a question regarding joint possession or common intention had been put to the appellants while examining them under section 342, Cr.P.C. Moreover, both the appellants have been convicted under section 9 (c) of the said Act. Appellant Ghulam Abbas has been stated to have been found in possession of 800 Grams of Charas, therefore, the case if any falls within the ambit of section 9 (b) of the said Act as the quantity of Charas does not exceed one Kg.
12. We do not agree with the contention of learned counsel for Anti-Narcotics Force that the offences are so connected as to form one and the same transaction or have been committed in the course of the same transaction. As stated earlier neither the Investigating Agency has applied section 34, nor the Trial Court has framed the charge in accordance with law nor any evidence has come on record that appellants had acted in unison as to make them jointly responsible. Moreover, different kinds of narcotics are stated to have been recovered from the appellants individually, which cannot suggest joint possession and common intention. The provisions of the Code of Criminal Procedure, 1898 have been made applicable to trials and appeals before the Special Court as per provisions contained under section 47 of the said Act. In view of above position the two recoveries effected from the appellants individually in the circumstances of the case cannot be deemed to have been so connected as to form one and the same transaction or to have been committed in the course of the same transaction, therefore, the offences had to be tried separately and their joint trial was irregular in the circumstances of the case. Learned Counsel for the appellants has also submitted that there is contradiction in the statement of seizing Officer which make the recoveries from individual appellants doubtful. We would no further comment upon the merits of this case, least the same should prejudice. Either side during the trial.
13. Consequently, we set aside the conviction and sentence and remand the case for retrial. The Trial Court should immediately proceed with the cases and conclude the trial as early as possible in accordance with law. During trial of the case accused Ghulam Abbas was on bail, therefore, in the Circumstances of the case the accused persons may be released on bail provided they furnish sureties in the sum of Rs,75,000 (Rupees Seventy Five Thousand) each and P.R. Bond of the like amount each to the satisfaction of learned Trial Court. The appeals are accordingly disposed of in the above term.