Abdul Shakoor Paracha, J.--Javed Akhtar son of Allah Razi appellant, impugns the judgment dated 2.10.2002 passed by the Addl. Sessions Judge/Judge Special Court Anti-Narcotics, Attock whereby he was found guilty under Section 9-C of CNSA, 1997 and was convicted and sentenced for life imprisonment with a fine of Rs. 4,00,000/- (four lac). It was further ordered that in default of payment of fine, he shall further undergo five years R.I. He was also awarded benefit of Section 382- B Cr.P.C.
2. Brief facts of the case are that Inspector/SHO, P.S. Attock Khurd on 19.1.2001 alongwith other police officials apprehended the appellant and his co-accused Manzoor Ahmad, when the Suzuki Pick up No. 4299/AD driven by the Baber Hussain Shah proceeding towards Attock was stopped by Akhtar Baig SI/Sargent. Inspector, SHO who received spy information that two persons would take narcotics in a black box through Suzuki Pick up No. 4299/AD and the destination is Karachi. The raiding party reached in the area of Haji Shah and the said Suzuki pick up wherein two persons sitting on the back side with a black coloured wooden box reached there. SHO came to know that Javed Akhtar and Manzoor Ahmad were carrying the box in the said Suzuki, and they are going to Karachi through train. The said box was opened; checked and found two black bags with 20 packets of charas, Garda-numa was weighed and the same become 20 K.G. Some quantity from every packet total 200 grams was taken and separated and made it into a sealed parcel for chemical analysis. The remaining charas was also taken into possession alongwith sample parcel through recovery memo Ex. PD. The box alongwith lock and two bags were also taken into possession. On search of the appellant Javed Akhtar Rs. 10100/- N.I.C. and a railway ticket bearing name of the appellant were recovered and taken into possession Ex. PE, while on personal search of Manzoor Ahmad accused Rs. 3800/- a wrist watch, railway ticket, NIC recovered and taken into possession Ex. PF. The case was registered against the appellant and the co-accused. Manzoor Ahmad being Army employee was summoned by the Army and was sentenced for 6-months R.I. and was reduced in rank vide order dated 20.5.2002. On submission of report under Section 173 Cr.P.C. against the appellant Javed Akhtar charge was framed against him to which he pleaded not guilty and claimed trial.
3. To prove the case against the appellant, Javed Akhtar, prosecution produced Muhammad Liaqat Abbasi (Executive Magistrate) who appeared as PW.4. He recorded the statement of Baber Hussain Shah Ex. PC/2 on the application of I.O. Ex. PB, Raja Taifoor Akhtar, SHO, PW.5. Ghulam Rasul ASI who alongwith Mansab Khan PW signed the recovery memo Ex. PD and Ex. PE appeared as PW.6.
Chemical Examiner report was produced in evidence as Ex. PH. Thereafter, the prosecution closed the evidence.
4. Statement of the accused under Section 342 Cr.P.C. was recorded. He denied all the allegations and recovery of narcotics from him. He stated that he was arrested from village at about 10.00 a.m; he is innocent, there was enmity of murder with the driver of vehicle and thus he has been falsely involved. He opted to produce evidence and produced report u/S. 173 Cr.P.C. Ex.D.A FIR Ex.DB, report u/S. 173 Cr.P.C., Ex.DC alongwith FIR Ex.DD, Photocopy of judgment dated 9.3.2002 "State vs. Farooq Shah Etc." mark D/1 (under objection) and closed his defence. After hearing the parties, learned trial Court proceeded to convict the appellant as aforesaid.
5. Before us, learned counsel for appellant contends that the statement of the prosecution witnesses and the accused under Section 342 Cr.P.C., were recorded by the Court as Addl. Sessions Judge and not by Judge, Special Court constituted under CNSA, 1997, therefore, conviction and sentence of the appellant is yoid. This contention of the learned counsel has no force. It is not controverted that Addl. Sessions Judge was also Judge Special Court under the CNSA, 1997 and had power to try the case under Section 9-C of the Act ibid. Moreover, the objection of the jurisdiction was not raised during the trial and no prejudice has been caused to the appellant. Next he contends that conscious possession of the appellant over the alleged recovered charas has not been proved by the prosecution. The box from where the alleged charas was recovered was locked therefore, it cannot be said that the appellant had the possession of the box from where the charas was recovered. Adds that the prosecution has to establish its case against the accused beyond all reasonable doubts. A plea taken by an accused may fail but he cannot be convicted on such a plea. Reliance is placed on the case reported as Noor-ul-liaq vs. The State (NLR 1992 Criminal 282).
20 K.G. charas which was being carried by the appellant alongwith Manzoor Ahmad co-accused in Suzuki No. 4299/AD driven by Baber Hussain Shah has been proved by the testimony of Raja Taifoor Akhtar, PW.4 and ASI Ghulam Rasul PW.5. On the application of the I.O. statement of Baber Hussain Shah driver was recorded under Section 164 Cr.P.C. (Ex. PC/2) shows that it came to the knowledge of the driver that Manzoor Ahmad was an Army man and the appellant alongwith him was carrying 20-KG. charas. Baber Hussain Shah driver disclosed that near the mosque of Sonobur Shah at local road the army person Manzoor Ahmed with locked box alongwith small luggage of domestic use boarded in the Suzuki while Javed Akhtar was standing. Both the accused boarded on the back seat of Suzuki. The chemical examiner report Ex. PH is positive, therefore, we are constrained to hold that the appellant had the conscious possession over the alleged charas alongwith his co- accused Manzoor Ahmad. The case of Noor-ul-Haq (NLR 1992 Criminal 282) is not applicable in this case, because the trial Court has convicted the appellant on the strength of prosecution evidence and not because he had taken a false plea during the trial.
6. The objection of the learned counsel on the statement of Baber Hussain Shah recorded under Section 164 Cr.P.C. by PW.4 Muhammad Liaqat Abbasi (Executive Magistrate) is that the said driver was not produced during the trial, therefore, the statement recorded under Section 164 Cr.P.C. could have not been relied upon by the trial Court. However, it is contended that CW. 1 Muhammad Nawaz Process Server was entrusted with the bailable warrants to effect service of Baber Hussain Shah driver. No opportunity of cross-examination to the above said CW.1 Muhammad Nawaz was afforded to the appellant, therefore, the statement of Baber Hussain Shah could have not been relied upon as per Section 265-J Cr.P.C. Reliance has been placed on case reported as Salehon versus The State (1971 P.Cr.L.J. 224). To appreciate the contention of the learned counsel for appellant, reading of Section 265-J Cr.P.C. is relevant which is as under:- "Statement of a witness duly recorded under Section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of Qanun-e-Shahadat, 1984."
Article 46 of the Qanun-e-Shahadat Order, 1984, describes the cases in which statements by persons who cannot be called as witnesses are themselves relevant facts. Sub-clause (2) of Article 46 says that, "When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. " Therefore, on the touchstone of sub-clause (2) of Article 46 the statement of CW-1 Muhammad Nawaz, process-server, who made report Exh. C/3, signed by him, that driver Babar Shah was not traceable was relevant. Statement of the witness/driver recorded under Section 164 Cr.P.C. was admittedly recorded in presence of the accused, who was given an opportunity to cross-examine. The admissibility of his testimony is subject to Section 265-J of the Cr.P.C. and has rightly and legally been relied upon by the trial Court. Therefore, the argument of the learned counsel for the appellant that the statement of Muhammad Nawaz, CW-1 could have not been relied is repelled. Suffice to say that, firstly the case of Salehoon vs. The State (1971 P.Cr.L.J. 224) is not applicable in this case and secondly Section 265- J, contained in Chapter XXII, was brought by the Code of Criminal Procedure (Amendment) Act (XLIV of 1976).
6. From all the above said facts and the evidence discussed above, we are of the considered opinion that prosecution was able to prove the case against the appellant beyond reasonable doubt. Since the appellant introduced Manzoor Ahmad as army man to the Baber Hussain Shah driver but it had not on the record that the appellant had the knowledge that box carried by Manzoor Ahmad contained the alleged charas. Furthermore, he did not touch the box and it is in evidence that the same was put by Manzoor Ahmad in the Suzuki of Baber Hussain Shah for onward transmission to Karachi, therefore, we hold that the appellant was guilty of offence for adding, abetment or association, facilitation, incitement, inducement or counseling the offence punishable under CNSA, 1997 and therefore, guilty of offence under Section 14 of CNSA, 1997 and notwithstanding anything contained in Section 116 of the Pakistan Penal Code, (Act XLV of 1860), be punishable with the punishment provided for the offence or such lesser punishment as may be awarded by the Court. In this view of the matter, we convict the appellant under Section 15 of the CNSA, 1997 and sentence him to seven (7) years R.I. with a fine of Rs. 2,00,000/- (Rupees Two Lac) and in default of payment of fine, he shall further undergo one year R.I.
7. For what has been discussed above, we dismissed this appeal and modified the conviction of the appellant from Section 9-C of CNSA, 1997 to Section 14 of CNSA, 1997 and modified the sentence as aforesaid.
8. With the above modification in the sentence awarded to the appellant, the appeal stands dismissed.