' FAZL-UR-REHMAN KHAN, J - Criminal Appeal No, 855 of 2005 (Hazar Gul and another v. The State) and Criminal Appeal No, 146 of 2005 (Akhtar Munir v. The State) are proposed to be disposed of by this common judgment, as these arise out of one and the same F.I.R.
2. According to the prosecution version, as given in the F.I.R., Exh.P.W.7/1, on the file of Criminal Appeal No, 855 of 2005, there was information from SIC A.N.F., Islamabad to complainant Mir Badshah, Inspector, PS ANF, Peshawar (P.W.2) that on the day of occurrence at any time, some smugglers would bring in huge quantity of narcotics from the tribal territory in Motor Car No,LEV 6055 and would hand over the same to a particular person at Peshawar. On the receipt of this information, complainant Mir Badshah along with the police-party and some army personnel laid a picket on the spot. At about 1813 hours, the said motor car arrived at the spot. On signal, it was stopped. At that time, the motor car was being driven by convict- appellant Akhtar Munir (juvenile) while convict-appellants Hazar. Gul and Sultan Mehmood were sitting with him in the front seat whereas a third person, namely, Rana Habibur Rehman, absconding coaccused, was sitting in the rear seat. On checking of the car, 17 packets of heroin, weighing each packet 1 Kg. Was recovered from the engine beneath the bonnet of the car, which along with the car was taken into possession and the appellants were arrested.
3. On submission of challan against the appellants, they were put to trial by the learned Judge, Special Court (CNS) and charged under section 9 of the Control of Narcotic Substances Act, 1997 (herein after called the Act). After recording some evidence, appellant Akhtar Munir took the plea that he was juvenile, as such, could not be tried by the learned Special Court (CNS). Accordingly, he was referred to a Standing Medical Board for determination of his age. The Standing Medical Board by a letter dated 31-5-2004 intimated the learned Special Court, (CNS) that he was of the age of 16/17 years. Accordingly, his case was sent to the Juvenile Court while the two appellants namely Hazar Gul and Sultan Mehmood were tried by the learned Special Court.
4. After recording evidence of P.W. Samin Jan Khan, Inspector, Fidaullah Muharrir (P.W.2), Mir Badshah, Inspector and Syed Jehan Shah, F.C. In the case of Hazar Gul and another while P.W.
Samin Jan, S.H.O., Fidaullah, Moharrir (P.W.2), Mir Badshah, Inspector (P.W.3) and Shah Faisal, Constable (P.W.4) in the case of Akhtar Munir, appellant, the appellants were examined under section 342, Cr.P.C. But they denied the charge against them. However, they neither examined themselves as their own witnesses nor produced evidence in defence. On appraisal of the evidence on record and hearing the learned counsel for the parties, the learned Judge, Special Court, (CNS) by the judgment/ order dated 10-12-2005 convicted appellant Hazar Gul and his co- accused Sultan Mehmood under section 9(c) of the Act and sentenced them to undergo imprisonment for life with a fine of Rs,two.Lacs each or in default thereof to suffer further 1 year S.I.
Each with benefit under section 382-B, Cr.P.C. By the judgment/order dated 24-2-2005, the learned Additional Judge-I/ Judge, Juvenile Court, Peshawar convicted appellant Akhtar Munir under section 9(c) of the Act and sentenced him to life imprisonment, simple and without any hard labour with benefit under section 382-B, Cr.P.C. With the direction that he shall be kept in Borstal Institution or any other reformatory school. The appellants are aggrieved by the foregoing judgments of the learned two Courts below and have filed these appeals.
5. We have heard M/s Abdul Fayyaz and Noor Alam Advocates for the appellants and Mr. Tariq Khan Kakar, Advocate for the State and have also perused the record.
6. Mr. Abdul Fayyaz Khan, the learned counsel for the appellants Hazar Gul and one other, contended that firstly; near the Airport and about a mile away from the spot the two appellants took lift in the car from the appellant Akhtar Munir, as such, neither they were aware of any possession of the heroin in the car nor any such heroin has. Been recovered from their possession, secondly; under the second proviso, as inserted by Criminal Law (Amendment) Ordinance, 1981, to section 516-A, Cr.P.C., the word "Court" mentioned therein means the Court under whose supervision and control the samples are to be taken from the narcotics and the remaining is to be destroyed means the Court, which is competent to inquire into or put the accused to trial but in the present case, samples vide certificate dated 16-11-2.003 (Exh.APW-1/3) have been taken in the supervision and control of Mr.Fazle Subhan Khan, Civil Judge/Judicial Magistrate 1st Class, Peshawar and similarly, the destruction certificate dated nil (Exh.APW-1/4) was also issued by him but in the case of convict-appellant Hazar Gul and one other, the competent Court was the Court of learned Judge, Special Court (CNS) and in the case of convict appellant Akhtar Munir, was the learned Additional Sessions Judge-Ill, Peshawar but neither of the two have issued these, certificates, as such, the learned Judicial Magistrate was not competent at all either to take samples or to destroy the remaining case property at all. These two certificates, as such, are wrong and illegal and if kept out of consideration, there remains no case against the appellants and thirdly; before taking. Samples or destruction of the case property, the Magistrate -or the Court competent to try the appellants had issued no notice to the appellants or their- counsel which is a mandatory provision of law under section 516-A, Cr.P.C. In support of this argument, the learned counsel for the two appellants placed reliance on the case of (1) Nawab Ali v. The State (PLJ 1995 FSC 90), (2) Said Karim v. Anti Narcotic Force (PLD 2003 Karachi 606), (3) Ijazuddin v. The State (2005 YLR 16) and (4) and unreported judgment dated 17-6-2004 of this Court in Criminal Appeal No, 198 of 2003.
7. The learned counsel for the convict-appellant Akhtar Munir, besides adopting the arguments of the learned counsel for the two appellants, contended that on the date of occurrence, appellant was admittedly a juvenile offender under the age of 18 years and under clause (a) of section 11 of the Juvenile Justice System Ordinance, 2000 (XXII of 2000), on conviction, the appellant was to be released on probation for good conduct but instead the learned trial Court has sent him to Borstal Jail, which is wrong and illegal and prayed that the appellant be released on probation. In support of his argument, he placed reliance on the case of Mst. Rahat Bibi and another v. The State (2006 PCr.LJ 561).
8. So far as the argument of the learned counsel for the appellant Hazar Gul and one other that just reaching the spot, a mile away they took lift in the care from appellant Akhtar Munir and were not aware of any narcotics in the case is concerned, it is without force. According to the contents of the F.I.R., the appellant Hazar Gul is an Afghan refugee, hailing from the Province of Nauman, Afghanistan and on migration to Pakistan has settled in Bara, Kajori, Khyber Agency, about 20/22 Kms. Away from the spot towards south while appellant Sultan Mehmood is the resident of Ziarat Killey, Mohmand Agency, at present living at village Larrama, Charsadda Road, Peshawar, about 15/16 Kms. To the north of the spot and the learned counsel for the appellants failed to explain as to what these two appellants were doing a mile away from the spot at a time when it was 'asar' time.
Both the appellants have, therefore, failed to explain their presence on the spot at the time of occurrence in connection with some other business except the trafficking of the heroin. The first argument of the learned counsel for the appellant Hazar Gul and another is rejected.
9. As far as the second argument of the learned counsel for the appellants that Mr, Fazle Subhan Khan, Civil Judge/ Judicial Magistrate, 1st Class, Peshwar was not competent at all either to issue samples certificate dated 16-11-2003 (Exh.APW-1/3) or the destruction certificate (Exh.APW-1/4 and the third argument that before the destruction of the case property, neither any notice was given to the appellants nor their counsel, are concerned, these are not without force. In the authorities, cited at the bar, it has been clearly laid down that the word "Court" appearing in . The 2nd Proviso to section 516-A, Cr.P.C. Means the Court competent either to inquiry into or conduct the trial of the accused but in this case, the competent Court to put to trial appellants Hazar Gul and one other was the Court of Judge, Special Court (CNS) and in the case of convict appellant Akhtar Munir the Court of Additional Sessions Judge, Peshawar and not the Court of Civil Judge/ Judicial Magistrate, 1st Class, Peshawar. These certificates were, therefore, issued without lawful- authority, as such, of no legal effect. In the authorities, cited at the bar, it has also been laid down that before destruction of the case property issuance of notice to the accused or his/their counsel is mandatory, the non- compliance of which, would vitiate the entire proceedings against the accused. The conviction and sentences of all the appellants are, therefore, wrong and illegal and cannot be maintained. In view of these findings, there is no need to go into submission of the learned counsel for appellant Akhtar Munir that he may be released on probation.
10. Accordingly, the two appeals Nos.855 and 146 of 2005 are accepted and the conviction and sentences of the appellants are set aside. They shall be released from jail forthwith., if not required in any other case.