2013 Y L R 2407
[Balochistan]
Before Jamal Khan Mandokhail, J
MOULA BAKHSH and another ---Appellants
Versus
The STATE ---Respondent
Criminal Appeal No.214 of 2010, decided on 25th June, 2013.
(a) Control of Narcotic Substances Act (XXV of 1997 )---
----Ss.6 & 29 ---Qanun -e-Shahadat (10 of 1984), Arts. 117 & 120 ---Possession of narcotics ---
Onus to prove ---Though Control of Narcotic Substances Act, 1997, is a special law wherein
burden to prove innocence is always upon accused but the same does n ot absolve prosecution
from its primary duty of proving a case beyond any reasonable doubt ---Prosecution must prove
violation of law by one or more than one persons.
(b) Criminal trial ---
----Scope ---Every criminal case has its own facts and circumsta nces and the same should be dealt
with independently, in accordance with law.
(c) Criminal trial ---
----Capital punishment ---Prosecution, duty of ---Scope ---To inflict a capital punishment of death
or imprisonment for life, prosecution is under statutor y obligations to furnish first degree of
proof through high quality evidence, reasonably creating nexus of accused with commission of
crime.
Mst. Jameela v. The State PLD 2012 SC 369; Qaisarullah v. The State 2009 SCMR 579;
Nazar Hussain v. The State 2007 YLR 1601; Eran Gul and others v. The State 2009 YLR 646
and Yar Muhammad v. The State 2010 YLR 1939 rel.
(d) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss.6 & 9 (c) ---Possession of narcotics ---Appreciation of evidence ---Know ledge of presence
of narcotics ---Hashish was recovered from secret cavities of tanker driven by accused and co -
accused was sitting on front seat ---Both the accused were convicted by Trial Court and sentenced
to imprisonment ---Validity ---Tanker was in the c ontrol of driver, therefore, there was no
possibility that he had no knowledge about recovered article concealed in secret cavities ---
Tanker was on its way and it could safely be held that narcotic was concealed by driver for the
purpose of its transportat ion or delivery ---Prosecution was supposed to show that co -accused was
either owner, cleaner or helper of tanker or he knew about secret cavities or concealment of
contraband material therein and prosecution had to prove that co -accused had hands in the
affairs---Tanker was not in the control of co -accused nor he was owner or cleaner, therefore,
prosecution failed to prove his knowledge about establishment of cavities or concealment of
narcotics in it ---Record did not prove that co -accused was in any way in volved in transportation
of recovered material nor prosecution had established nexus of co -accused either with accused
driver, with tanker or with recovered material, therefore, prosecution failed to bring the case of
co-accused within the parameters of S. 6 Control of Narcotic Substances Act, 1997 ---Case of co -
accused was distinguishable from the case of accused driver beyond shadow of doubt, therefore,
High Court maintained conviction and sentence to the extent of accused driver while co -accused
was acqui tted of the change ---Appeal was disposed of accordingly.
Taj Muhammad Mengal for Appellant.
Rauf Atta, Standing Counsel for the State.
Date of hearing: 7th June, 2013.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --The appellants Muhammad Ibrahim and Mo ula Bakhsh,
were convicted and sentenced by the trial Court under section 9(c) of the Control of Narcotic
Substances Act, 1997 (hereinafter called as "The Act"). They preferred this appeal, which was
heard by a Division Bench of this Court, comprising of t he Hon'ble Justice Syeda Tahira Safdar
and Hon'ble Justice Muhammad Hashim Khan Kakar. They agreed to maintain the conviction
and sentence awarded by the trial Court to the appellant (Muhammad Ibrahim), whereas there is
a difference of opinion between them about the conviction and sentence awarded to the appellant
(Moula Bakhsh). The Hon'ble Justice Muhammad Hashim Khan Kakar acquitted him, whereas
the Hon'ble Justice Syeda Tahira Safdar maintained the conviction. The matter was referred to
the Hon'ble Chie f Justice, who assigned the same to me for a decision as a Referee Judge.
2. The facts of the case have already been discussed in the judgment by the Hon'ble
Division Bench, therefore, there is no need to discuss it in detail. However, the precise facts are
that on 10th March, 2010, a tanker (truck) was intercepted by the custom's officials. The convict/
appellant (Muhammad Ibrahim) was driving it, whereas the appellant (Moula Bakhsh) was
sitting beside him. On a search, secret cavities were found in the truck in which, Hashish was
concealed. A case under section 9(c) of the Act was registered against the appellants.
3. I have heard the learned counsel for the parties, perused the record and the judgments of
both the Hon'ble Judges. Before discussing abo ut the role of the appellant (Moula Bakhsh) in the
commission of the offence, it would be appropriate, to reproduce section 6 of the Act as under: --
"6. Prohibition of possession of narcotic drugs etc. No one shall produce, manufacture,
extract, prepare , possess, offer for sale, sell, purchase, distribute, deliver on any terms
whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled
substance, except for medical, scientific or industrial purposes in the manner and subject to such
conditions as may be specified by or under this Act or any other law for the time being in force."
4. No doubt, this is a special law wherein, a burden to prove innocence is always upon an
accused, but this does not absolve the prosecution from i ts primary duty of proving a case against
an accused beyond any reasonable doubt. The prosecution must prove a violation of the above
law by one (01) or more than one (01) person. If the slightest connection of a person/s is
established, with regard to pro duce, manufacture, extract, prepare, possess, offer for sale, sell,
purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug,
psychotropic substance or controlled substance, except for medical, scientific or industrial
purposes, under such circumstances, a person allegedly involved in the crime must prove his
innocence. Moreover, every criminal case has its own facts and circumstances, and the same
should be dealt with independently, in accordance with law. The cases fal ling under the Act
requires due consideration and should be decided consciously, keeping in view the fact that a
minimum punishment provided for section 9(c) of the Act, is life, in case the contraband material
exceeding ten (10) kilograms. To inflict a ca pital punishment of death or that of life, the
prosecution is under statutory obligations to furnish the first degree of proof through high quality
evidence, reasonably creating nexus of an accused with the commission of the crime. Reliance
has been placed on cases of:
(i) Mst. Jameela v. The State, reported in (PLD 2012 SC 369).
(ii) Qaisarullah v. The State, reported in (2009 SCMR 579 SC).
(iii) Nazar Hussain v. The State, reported in (2007 YLR 1601 Karachi).
(iv) Eran Gul and others v. The State, reported in (2009 YLR 646).
(v) Yar Muhammad v. The State, reported in (2010 YLR 1939).
5. In the present case, it was alleged that the tanker was driven by the convict/ appellant
(Muhammad Ibrahim), whereas the appellant (Mou la Bakhsh) was sitting with him. On the
search, there were secret cavities in the vehicle, wherefrom the contraband material was
recovered. Considering the facts of the case, at the relevant time, the tanker was in the control of
the driver, therefore, the re is no possibility that he would have no knowledge about the recovered
article concealed in the secret cavities. Since, the tanker was on its way, as such, it can safely be
held that the narcotics were concealed by the driver for the purpose of its trans portation or;
delivery. As far as, the role of the appellant (Moula Bakhsh) is concerned, it is for the
prosecution to show that he was either the owner, cleaner, helper of the tanker, or he knew about
the secret cavities or concealment of the contraband m aterial therein, or the prosecution has to
prove that the appellant had hands in the affairs. Admittedly, the tanker was not in the control of
the appellant, nor he is its owner or cleaner. The prosecution has failed to prove his knowledge
about the establ ishment of the cavities or concealment of the narcotics in it. There is also nothing
on the record to establish that he (Moula Bakhsh) was in anyway involved in the transportation
of the recovered material, nor the prosecution had established a nexus of th e appellant either with
the driver, with the tanker or with the recovered material, therefore, the prosecution has failed to
bring the case of the appellant within the parameter of the section 6 of the Act.
6. My learned sister Judge assigned the reason for the conviction of the appellant that since
the presence of the appellant (Moula Bakhsh) in the tanker was established and his defence plea
was inconsistent, therefore, his case is at par with the case of the convict/appellant (Muhammad
Ibrahim). I resp ectfully disagree with the reason prevailed upon by my learned sister Judge, for
the simple reason that mere presence of the appellant (Moula Bakhsh) in the tanker with the
convict/appellant (Muhammad Ibrahim) is no offence, unless the prosecution establis h his
involvement with the commission of the crime through the first degree of proof. And, there is no
restriction upon appellant to take as many plea as available to him. Even if no defence plea is
taken by the appellant or the same has been taken, but is not proved or is found to be false, still
he cannot be held responsible for the commission of the offence, in absence, of an incriminating
evidence against him. The onus to prove the case was since upon the prosecution, but it has
failed, therefore, the c onviction cannot be based merely on a contradictory plea, raised by the
appellant during the trial.
7. Under such circumstances, I concur with my learned brother, Justice Muhammad Hashim
Khan Kakar, wherein he has rightly held that "the case of appellan t Moula Bakhsh is quite
distinguishable from the case of appellant Muhammad Ibrahim. As such, the prosecution has
failed to prove its case against appellant Moula Bakhsh beyond the shadow of doubt, therefore,
appeal to the extent of appeal appellant Moula Bakhsh is accepted, impugned judgment dated
24th June, 2010 passed by the learned Special Judge, Control of Narcotic Substances Act, 1997,
Lasbella at Hub to his extent is set aside and, while extending the benefit of doubt, he is
acquitted of the charge".
MH/64/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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