1. Mehta Kailash Nath Kohli, J.--This appeal is directed against judgment dated 26th June, 2004 passed by Incharge Additional Sessions Judge/ Special Judge Narcotics Pishin in Narcotics Case No, 05 of 2004, whereby, appellant Abdul Qadoos son of Ghulam, caste Badezai was convicted under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for six years RI and fine of Rs, 50,000/-, in default of payment of fine, to further undergo SI for one year. Benefit of Section 382-B, Cr.P.C. was extended in favour of appellant with effect from 31st January, 2004.
2. Facts of the case, are that complainant Hawaldar Akhter Shah Afridi, FC 56 wing Shella Bagh lodged written report with Levies 'Station Chaman, alleging therein that on 25th January, X004, at 8.00 a.m. patrolling party of 56 Wing went to Cheena cut; at 10:45 p.m. a Datsun Bearing No, PAC- 192, which was coming from Chaman side towards Quetta, was stopped and search was conducted; some `Laghri' were sitting in the vehicle; amongst one of them namely Abdul Qadoos son of Ghulam, resident of Afghanistan, two kilograms opium was recovered, which was seized by Commander of patrolling party. It was further averred that accused was arrested and being handed over to Levies for legal proceedings. It was stated that two kilograms opium was deposited in mal-khana of Militia and on summoning by the Court, will be produced. On the basis of above report, FIR No, 16 of 2004 dated 27th January, 2004 under Section-9(c) of Control of Narcotic Substances Act, 1997 was registered with Levies Station, chaman, District Qila Abdullah. After completion of investigation, appellant was challaned in the. Court of Additional Sessions Judge/Special Judge Narcotics, Pishin. Charge was framed and read-over to appellant, to which he pleaded not guilty and claimed trial.
3. Prosecution to substantiate accusation against appellant, produced following evidence:-- PW-1 Akhter Shah, Hawaldar FC 56 Wing Pishin appeared and deposed that on 26th January, 2004 at 8:00 a.m. Naik Fazal Mahmood and constable Amjad Ali departed for patrolling; about 10:45 a.m. at Cheena cut, one Datsun Bearing No, PAC-192, coming from Chaman towards Quetta, was stopped and searched; some passengers were boarded in the vehicle, amongst them accused present in Court namely Abdul Qadoos was searched from whose possession, two kilograms opium was recovered. Witness further deposed that they brought accused present in Court alongwith recovered opium in Sheila Bagh Headquarter and from there accused was taken to Headquarter Chaman, and in this regard, witness submitted report (Ex. P/1-A) bearing his signatures. Witness identified accused present in Court, to be the same.
4. In cross-examination, witness stated that murasla (Ex. PO-A) was prepared in Shela Bagh and he himself took the same to Chaman Headquarter. It was stated that they had not conducted any proper proceedings at the spot. Witness stated that about ten persons were boarded in the vehicle.
5. It was stated that all the passengers boarded in the vehicle, were searched. Witness stated that in his presence, Constable Amjad Ali conducted search of accused present in Court; it took about ten minutes in conducting whole proceedings. Witness denied that during search of accused present in Court, two kilograms opium was not recovered. He denied that two kilograms opium was recovered froni other passenger boarded in the Datsun. He denied that they had released other passengers after taking money and accused present in Court has falsely been involved in the case. He denied that accused present in Court was innocent. He denied that he . had given wrong statement.
6. PW-2 Amjad Ali, Constable FC. He deposed that on 25th January, 2004, he was posted at Sheila Bagh Check-post; on the same day, at 8:00 a.m. witness alongwith Naik Fazal Mahmood and Hawaldar Akhtar Shah went towards Cheena cut for patrolling; at 10:00 a.m. again stated that 10:45 a.m. one double door pick-up was coming from Chaman towards Quetta, wherein ten laghri/passengers were boarded, was stopped and checked; accused present in Court, sitting in the vehicle, was searched from whose possession two kilograms opium was recovered, and he was brought in Wing Headquarter Sheila Bagh, on next day there was holiday and on the following day, they handed over accused to Tehsildar Chaman. It was further deposed that in presence of witness and Mahmood, Tehsildar took into possession opium and two separate parcels were prepared.
7. Witness produced recovery memo (Ex. P/2-A) and parcel of recovered opium (Article-1) and identified his signature on same. (At that stage, ADA requested for opening of parcel bearing seal of stamp, request was allowed). Witness identified recovered opium (Article-2) to be the same and also identified the accused to be the same.
8. In cross-examination, witness stated that duration of their duty is twenty four hours. It was stated that no other vehicle was checked, except the vehicle, in which accused was coming.. Witness stated that there were about ten persons sitting on the rear side of vehicle, while he did not remember how many were boarded in front. It took then minutes at the place of occurrence.
9. Witness stated that accused, present in Court was sitting on rear side of the vehicle. Witness further stated that on 27th January, 2004 Tehsildar recorded his statement. He stated that he had conducted search of accused present in Court. He denied that on search, opium was not recovered from possession of accused present in Court, and; also denied that same was recovered from other person. Witness denied that he released that person after obtaining money and lodged case against accused present in Court. He denied that he had not given proper statement.
10. PW-3 Lala Muhammad Ishaque, Naib Tehsildar appeared and deposed that on 27th January, 2004, he was posted as Naib Tehsildar Chaman; on the same day at 12:00 noon, on written report of Hawaldar Akhter Shah FC 56 Wing, FIR No, 16 of 2004, under Section-9(c) was registered. Witness produced FIR (Ex. P/3-A) and identified his signature on same. Witness further deposed that he himself conducted investigation of the case; two kilograms opium was recovered from possession of accused. Accused alongwith recorded two kilograms opium was handed over to him by FC authorities. Witness separated six grams from two kilograms of alleged opium for the purpose of analysis, prepared two parcels and also prepared recovery memo, accused was also taken into custody. It was further deposed that on the same day, witness proceeded to the place of occurrence and prepared site inspection map. Witness produced site inspection map (Ex. P/3-B) and also identified his signature on same. Witness recorded statements of witnesses under Section 161, Cr.P.C. and on 31st January, 2004, accused was sent to judicial, and; on even date incomplete challan (Ex. P/3-C) bearing his signature was submitted in the Court. On 28th April, 2004, witness received FSL report (Ex. P/3-D) from Quetta and produced the same, on 29th April, 2004 Tatima challan (Ex. P/3-E) bearing his signature was prepared, which he identified and produced in Court.
11. Witness identified accused present in Court to be the same.
12. In cross-examination, witness stated that at 12:00 noon, he himself had recorded statements of witnesses under Section 161, Cr.P.C. witness stated that complainant Hawaldar Akhter Shah had come to his office at Chaman. Witness stated that distance between place of occurrence and his office is twenty five kilometers. He denied that two kilograms opium was not recovered from possession of accused present in Court. He denied that neither he prepared site inspection map nor he visited the place of occurrence. He denied that accused present in Court was falsely involved in the instant case. He denied that FC authorities had let free real culprits and had falsely made case against accused present in Court. He denied that he had no knowledge about reality and he had conducted .wrong investigation. He denied that he has deposed falsely.
13. In his statement recorded under Section-342, Cr.P.C. appellant pleaded his innocence and stated that he is twelve years of age, opium was not recovered from him rather it was recovered from other person present in the vehicle, who was released by and FC authorities and false case was made against him.
14. After assessm ent of evidence, learned trial Court, vide judgment dated 26th June, 2004, convicted and sentenced appellant, in the manner, herein above mentioned.
15. We have heard Mr. Jameel Khan Lodeen, learned counsel for appellant, while Mr. Amin-ud-Din Bazai, learned Additional Advocate General, represented the State.
16. Learned counsel for appellant has stated that the prosecution has failed to establish the case against accused/appellant, as it has not been proved on record that the entire article was sent for the purpose of chemical examination. It has also been stated that the appellant was traveling alongwith other ten persons and he had been falsely involved in the case. It was further stated that the appellant was juvenile and application in this regard, was submitted, but the trial Court had seriously erred in deciding the same. It was further claimed that the case was registered with delay of one/two days, and thus, the accused is entitle to grant of benefit of the same.
17. On the other-hand, learned Additional Advocate General has supported the case by stating that the prosecution has brought the guilt at home by producing cogent evidence.
18. In order to appreciate evidence of the parties, it is to be seen that PW-1 Hawaldar Akhter Shah had categorically stated that a Datsun bearing No, PAC-192 was coming from Chaman to Quetta, it was intercepted and search was made. Some passengers were boarded thereon alongwith accused/appellant, and; on body search of appellant, two kilograms opium was recovered. In cross-examination, accused had not denied identity of the alleged narcotics, recovered from accused/appellant. Similar statement was made by PW-2 Amjad Ali, who stated that he was posted at Sheila Bagh check-post on 25th January, 2004 and was on patrolling duty, near cheena cut, at about 10:00 a.m. then stated at 10:45 a.m. double door pick-up was coming from Chaman to Quetta, there were passengers boarded thereon the same, was stopped and searched, two kilograms opium was recovered from appellant and he alongwith alleged narcotics was sent to local authorities for registration of case. Appellant had not challenged identity of narcotics recovered, however, he claimed that it was recovered from some other person and has been foisted upon accused/appellant. Both the witnesses have also produced Ex. P/1-A, document, whereby; appellant was sent to Tehsildar for registration of case, while Ex. P/2-A is the recovery memo of opium, PW-3 Lala Muhammad Ishaque is Naib Tehsildar, who had registered the case and obtained parcel and sent to chemical expert; he had also produced report of expert. In view of the fact that appellant had not denied recovery of opium and identification of alleged narcotics, recovered as, such, contention of learned counsel that the same was required to be sent in entirety for chemical examination, is not sustainable. We are supported by case of Ali Muhammad and another v. The State (2003 SCM R 54), relevant observations are reproduced as under: - "7"...The P.Ws. when examined were even not suggested by the learned counsel for the appellants that the remaining property produced in Court was not the same or that it was tampered with. The appellants also did not pray before the trial Court or High Court that entire case property be sent to Chemical Examiner for report as to challenge that entire case property was not narcotic substance/drug.
19. "8... We do not find substance in the said contention also. Recovery of ten kilograms of Charas from the appellants has been proved beyond doubt on the basis of confidence-inspiring evidence produced by the prosecution. As observed above the appellants never challenged the nature/contains of substance being not Charas or narcotics. The appellant cannot now turn around and say that because only one slab of half kilogram was recovered which was sent to Chemical Examiner who opined it to be Charas therefore appellants be sentenced according to the quantity sent to the Chemical Examiner." So far as, recovery of article is concerned, that has been proved on record and there is no animosity against the accused/appellant to falsely implicate him in the commission of offence.
20. Learned trial Court was correct in fixing liability so far recovery of narcotics is concerned. The other contention of learned counsel for appellant that application was filed on 17th May, 2000 that the appellant is below eighteen years of age, however, it was claimed that there is no documentary evidence, available with him and he be sent to medical examination. Learned trial Court passed following order:-- "21.6.2004. This is an application for referring the accused to Medical Board for determination of age then the case be treated in a Juvenile Court. LDA opposed the application by stating that in narcotics cases the age does not matter. I have heard the arguments and perused the record. Admittedly narcotics business is heinous in nature This crime is considered against the society. In such matter the age and gender are not considerable factors. If this practice is allowed then the drug traffickers will use children for drug trafficking. Even otherwise in the present case the accused is looking major. However, his age factor will be considered in final judgment " Learned trial Court had fallen in error in not sending the accused/appellant for medical examination or conducting of proper inquiry. It was incumbent upon the trial Court to have obtained report from the Medical Board under Section-7 of the Juvenile Justice System Ordinance, 2000 and after obtaining report, should have passed appropriate order, after conducting enquiry, as required by law. In such circumstances, learned trial Judge has erred in passing order. The learned Judge has merely observed that by appearance of appellant, looks major, which was contrary to the provisions of law and thus; order dated 21st June, 2004, reproduced herein-above is set aside; while, reducing sentence of appellant from six years RI to that of five years RI and maintaining order of conviction, matter is remanded to the trial Court to follow the provisions of Juvenile Justice System Ordinance, 2000 and after conducting enquiry, as provided by Section-7 of the Ordinance, 2000. all benefits ensuing therefrom be extend to accused/appellant, if he is found to be a child at the time of commission of offence as defined by said Ordinance. Benefit of Section 382-B, Cr.P.C. is also extended in favour of appellant.