' NAZIR AHMAD SIDDIQUI, J.--- This Criminal Appeal, filed by appellant/convict (Muhammad Shahid alias Shedi), is directed against the order dated 16-7-1998 passed by the learned Sessions Judge, Bahawalpur, whereby he convicted him under section 9(c) of the Control of Narcotic Substances Ordinance (No, XIII) 1996 (hereinafter to be referred as the Ordinance) and sentenced him to imprisonment for life and to pay the fine of rupees one million.
2. Briefly, the prosecution case is that on 24-3-1997, upon the receipt of information, a raiding party headed by the S.H.O./F.I.O. (Muhammad Afzal Ahsan) was constituted to raid at the house of the appellant. At the time of raid, he (Appellant) was standing at the door of his house and on his personal search, a packet was recovered containing 600 grams heroin. After completing the investigation, the appellant/convict was challaned to face trial under section 9(c) of the Ordinance and under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979.
3. The prosecution led no evidence in support of its case and relied upon section 26 of the Ordinance to maintain that it was the duty of the appellant convict to demolish the case of the prosecution. The learned Sessions Judge saw eye to eye with this contention and convicted the appellant as mentioned above. It may be noted here that the appellant did not lead any evidence to disprove the recoveries allegedly effected, from him. This is in all the factual background of this appeal.
4. Learned counsel for the appellant vehemently argued that initially, the onus of establishing the case was on the prosecution and it was then the turn of the accused to disprove the prosecution case. It was so argued that section 26 of the Ordinance did not shift onus of proving the recoveries and the presumption embodied in this section will come to operate when the prosecution leads evidence to prove recoveries. Learned counsel referred to section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, and placed reliance on Manzoor Ali etc. v. State 1995 PCr.LJ 1394 (DB), Khawar and others v. The State PLD 1995 Kar. 105 (DB), Jabbar Ahmad v. The State 1996 PCr.LJ 1264 (DB) and Mst. Maqsoodan Bibi v. The State 1997 PCr.LJ 1377.
5. In support of his arguments, he further referred to section 32 of the Dangerous Drugs Act, 1930, which has been examined in Raghubir Dayal Missir v. Emperor AIR 1941 Pat. 177 which has also been reported in 42 Cr.LJ 1941 (p.189). He submitted that it is a fit case for acquittal.
6. The learned counsel for the State concedes the above proposition, but submits that it may be a case of remand but not of acquittal.
7. To appreciate the above arguments, it is proper to analyses section 26 of the Ordinance reference to sections 8 and 32 of the aforesaid enactment respectively. The aforesaid provisions are totally para materia with section 26 of the Ordinance.
8. Section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, lays down as under:- -- "8. Burden of Proof.--- Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
9. Similarly, section 32 of the Dangerous Drugs Act, 1930, says:-- "Presumption from possession of illicit articles.--- In trials under this Act it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter III in respect of ....
(a) any dangerous drug;
(b) ................................................
(c) ...................................................
(d) ' for the possession of which he fails to account satisfactorily." The language used in section 26 of the Ordinance is as under:-- "Presumption from possession of illicit articles.- ' In trial under this Ordinance, it may be presumed, unless and until the contrary is proved that the accused has committed an offence under this Ordinance in respect of
(a) any narcotic drug, psychotropic substance or controlled substance;
(b) ................................................
(d) for the possession of which he fails to account satisfactority."
10. Section 8 of the Supersession of Terrorist Activities (Special Courts) Act, 1975, has been examined in PLD 1995 Kar. 16 and it was held: "Under the above provisions the burden to prove innocence would shift to the accused only when the prosecution first established the pre-requisite condition in the first part of the above section which means that the prosecution should show that the accused is found to be in possession or to have under his control any article or thing which is capable of being used for or in connection with commission of such offence or that he is apprehended in the circumstances which lead to raise a reasonable suspicion that he has committed such offence. In the present case, the prosecution has failed to even prima facie establish the allegation against the accused...... "
' This very principle was reiterated in PLD 1995 Kar. 105 and NLR 1995 AC 266. A similar view, with reference to section 32 of the Dangerous Drugs Act, 1930, was expressed' in Raghubir's case AIR 1941 Pat.
177. The relevant portion thereof reads as under:-- "Under section 32 an offence can be presumed only when act of import, export or transhipment or such like is established. The onus is then on the accused to explain satisfactorily his possession of the dangerous drug."
' It was further laid down therein as follows:--- " Presumption cannot be substituted for the proof of facts which go to make up an offence, and in this case the fact of importing itself has not been proved and, therefore, the guilt of the present petitioner cannot be presumed."
' At this juncture, it will be beneficial to reproduce herein below section 10 of the Opium Act, 1878:--- ' "In prosecution under section 9 it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily, is opium in respect of which he has committed an offence under this Act."
' This provision of law was examined by the Calcutta High Court in Iswar Chandra Singh v. Emperor 6 Indian Cases 173 and it was held as under---- ' the effect of the two provisions (sections 9 and 10) appears to be simply this, that when once it is proved that an accused person has dealt with opium in any of the ways described in section 9, the onus of proving that he had a right so to deal with it is thrown on the accused by section 10. But the commission of an act which may be an offence must be proved before the presumption comes into play at all, and it cannot, therefore, be used to establish that fact."
11. From the above discussion, the ratio deducible is that it is the primary duty of the prosecution to prove its case beyond reasonable doubt and its burden is not displaced under the presumption embodied in section 26 of the Ordinance. It only says that once the prosecution leads evidence in support of its case, it is then that the accused is required to disprove the same. Section 26 of the Ordinance does not absolve the prosecution of its duty to prove its case beyond doubt.
12. We further hold that section 26 of the Ordinance is totally para materia with section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, section 32 of the Dangerous Drugs Act, 1930, section 10 of the Opium Act, 1878, and the rule enunciated in the judgments abovementioned is based on a due appreciation of law and we agree with the aforesaid view and on the above premises, we hold that learned trial Court clearly erred in law in convicting the appellant.
' For what has been discussed above, the appeal is accepted. We set aside the impugned judgment and conviction and sentence awarded to the appellant and the case is remanded to the learned trial Court for a fresh decision with a direction to conclude the trial within four months from the receipt of this order.