JUDGMENT M.A. ZAFAR, J. - Haq Nawaz appellant alongwith two others, namely, Pervaiz Saleem and Asimullah were sent to face the trial in case F.I.R. No. 25/1998, dated 5.8.1998 for the offence under Section 9(b) and 15 C.N.S.A., 1997 registered with Police Station, A.N.F., Lahore.
2. During the trial Asimullah co-accused of the present appellant was discharged by the learned Illaqa Magistrate vide order dated 4.9.1998 for want of evidence and similarly another co-accused Pervaiz Saleem was convicted for transporting 1-KG of Heroin abroad on his confessional statement recorded by learned Judge Special Court, C.N.S., Lahore vide judgment dated 31.7.1999.
3. Brief facts of the case are that on 5.8.1998 Pervaiz Saleem accused during briefing of flight No. PK-791 going to Holland from Lahore was searched and from his black joggers worn by him one Kilogram of Heroin was recovered Pervaiz Saleem alongwith documents and heroin was handed over by A.S.F., Lahore Airport to Ahmad Jalil Raja, AD, PS ANF, Lahore, who conducted further investigation in this case. During the interrogations Pervaiz Saleem disclosed that the heroin was supplied to him by his cousin Asimullah, which the said Asimullah purchased through his Cinema Manager Haq Nawaz for consideration of Rs. 50, 000/- and .Asimullah by concealing the said heroin in his Jogger Shoes delivered at his residence at Lahore in his Pajero Jeep No. LOG-77D. On this disclosure the police arrested Asimullah and Haq Nawaz alongwith Pajero Jeep from Gujranwala. During the detention of the accused persons in judicial lock-up Asimullah accused was discharged on 4.9.1998 by Dr. Waqar Hussain, Magistrate, Lahore and said Asimullah later on absconded to abroad. Later on after judicial inquiry case No. 36/1998 under C.N.S.A., 1997 and other relevant laws was registered against. Dr. Waqar Hussain and others, In this manner the accused Pervaiz Saleem and Haq Nawaz were booked in the case in hand for transportation and for abetment of transportation of heroin abroad.
4. During trial prosecution produced Tasawar Hussain, Assistant Security Officer, ASP, Lahore , Airport as PW.I, Muhammad Faryad, AS1, P.S. ASF, Lahore Airport as PW.2 and Behadar Khan ASO, Company Commander-C Company, ASF, Lahore Airport as PW.3 to prove the recovery effected from Pervaiz Saleem on 5.8.1998 but the present appellant did not cross-examine the said PWs, then prosecution produced Muhammad Sarwar H.C.P.S. Anti- Narcotics Force, Lahore as PW.4, who recorded formal F.I.R. Ex.PD/1 on receipt of complaint Ex.PD and Rashid Mahmood constable PW.5 who took the parcel of Heroin and delivered the same in the office of Chemical Examiner. The said witnesses were also not cross-examined by the present appellant. .Ch. Muhammad Ismail, Judicial Magistrate, who allegedly recorded confessional statement of Haq Nawaz present appellant appeared as PW.6. Ahmad Jalil Raja A.D. P.S. ANF, Lahore, who arrested the appellant on the night 5/6.8.1998 and also investigated the case, appeared as PW.7. After conclusion of prosecution evidence statement of the appellant was recorded under Section 342, Cr.P.C, in which he while replying to question No. 5 stated as under:- "I am innocent. I have been falsely involved to let off the actual culprits. According to my knowledge Khaliq- uz-Zaman the then Additional Sessions Judge, posted in Punjab had come alongwith Pervaiz Saleem, who is brother of his wife. They were accompanied by Khalid Nawaz, Deputy Solicitor, Punjab. The driver of the car of Khaliq-uz-Zaman was also taken into custody, interrogated Lateron every body was exonerated and even Pervaiz Saleem in his confessional statement did not name me or any body and he was sentenced to the extent that he came out from jail immediately after the announcement of sentence as awarded under confessional statement. I being a poor man get remained in jail for about more than 18 months. This all about Khaliq-uz-Zaman etc. I learned when I was under arrest with the narcotics officials. I have no concern with serving National Industrial Finance Corporation, at Gujranwala as Cashier. After the work was closed I did my own business."
5. After the conclusion of trial learned Judge Special Court C.N.S., Lahore vide impugned judgment convicted and sentenced the appellant as under:- Under Section 9(b) read with Section 15 of C.N.S.A.,1997:- Imprisonment for three and half years with fine of Rs. 5,00,000/- and in default to undergo six months imprisonment. Benefit of Section 382-B, Cr.P.C, was also extended to the appellant.
6. Learned counsel for the appellant submits that after recording the confessional statement of the appellant, he was not sent to judicial lock-up rather he was given in the custody of police and thus no reliance can be placed on the said confessional statement. He further submits real culprits were mala fide let off but the present appellant was involved, who had no link with Asimullah co- accused nor he was employee at his "Sangam" Cinema.
7. Leamed D.P.G, while defending the impugned judgment submits that in addition to the confessional statement made by the appellant before the learned Judicial Magistrate, the confessional statement made by his co- accused Perevaz Saleem on 31.7.1999 also prove that 1 KG of Heroin was transported by the said accused, which was supplied to him by the present appellant.
8. After hearing learned counsel for the parties and perusing the record we find that plea raised by the appellant in his statement recorded under Section 342, Cr.P.C, was never put to the prosecution witnesses and the same was not even his first version. Any irregularity in recording the statement under Section 164, Cr.P.C, is curable under Section 533, Cr.P.C, and the appellant had at no stage alleged during the cross-examination of PW-6, who recorded his confessional statement, that the same was not volunteered and was the result of inducement, threat and promise or he did not make the said statement. PW.6 has no ill-will or animosity to falsely depose against the appellant.
Suggestion put to PW7 that he fabricated the said statement was denied by him. The mere fact that appellant after recording his confessional statement was not sent to judicial lock-up and he was handed over to the police for further investigation is not fatal and would not make confession involuntary. Reliance is placed upon a case titled as Muhammad Sharif v. State (1969 SCM R 521).
Conviction is sustainable on confession in law provided the same had , been recorded in accordance with law. Reliance is placed upon a case titled as Khan Muhammad v. State (1999 SCM R 1818). Needless to mention here that appellant has already undergone the sentence awarded to him and at" present he is out of jail,
9. For what has been discussed above, we are of the view that there is no force in this appeal and the same is accordingly dismissed.