JUDGMENT YAHYA AFRIDI, J:---Through this single judgment, we intend to decide all three criminal appeals, Criminal Appeal No.431 of 2010, Criminal Appeal No.482 of 2010 and Criminal Appeal No.462 of 2010 as they arise out of a single case registered as F.I.R. No.5 dated 9-1-2010 culminating in the single judgment of the trial Court dated 3-4-2010 and more importantly as common questions of fact and law are involved in all three criminal appeals.
2. Criminal Appeal No.431 of 2010 has been filed by Muhammad Alamgir son of Tilawat Khan aged about 16/17 years, wherein he has impugned the conviction and sentence awarded by the trial Court vide judgment dated 30-4-2010 to undergo imprisonment for life and to pay a fine of Rs.100,000 and in default of payment of the said fine to further undergo imprisonment for six months.
Criminal Appeal No.482 of 2010 has been filed by Raham Zaib son of Umar Zada aged about 16/17 years, wherein he has impugned the conviction and sentence awarded by the trial Court vide judgment dated 30-4-2010 to undergo imprisonment for life and to pay a fine of Rs.100.000 and in default of payment of the said line to further undergo imprisonment for six months.
Criminal Appeal No.462 of 2010 has been filed by Hunar Shah son of Sher Badshah, wherein he has impugned the confiscation of the bus bearing registration No.NK-8926/Peshawar vide judgment of the trial Court dated 30-4-2010.
3. The brief facts which have led to the present appeals are that Sardar Abdul Wahid, Assistant Director Anti-Narcotics Force ("ANF") and the then Station House Officer of ANF Police Station.
Peshawar on a prior information regarding smuggling of narcotics front Bara on bus bearing registration No.K-8929 Peshawar ("Bus"), on 9-1-2010 laid a barrier. At Pishtakhara Chowk. Bara road. Peshawar. At 1600 hours on the same day the Bus coming from Bara approached the barrier and was stopped by the waiting ANF personnel headed by Sardar Abdul Wahid. The driver of the Bus, who later identified himself as Raham Zaib and the conductor thereof who disclosed his name as Muhammad Alamgir, were arrested from the spot. The Bus was taken to the ANF Police Station Peshawar, where it was thoroughly searched and from the secret cavities 78 packets of Charas were recovered. On weighment thereof, each packet weighed one kg. From each packet 10 grams of charas was separated and placed in separate sealed packets, which were sent for chemical examination. This was all duly reported by Sardar Abdul Wahid as the complainant in case F.I.R.
No.5 dated 9-1-2010 under section 9(c) of Control of Narcotic Substances Act, 1997 ("C.N.S.A.") registered in Police Station ANF, Peshawar ("F.I.R.").
4. The samples of contrabands recovered from the Bus on chemical examination, were declared by the FSL, Rawalpindi to be "Charas Pukhta".
5. Keeping into consideration the tender age of appellants, Muhammad Alamgir and Raham Zaib Judge Juvenile Court. Peshawar took cognizance of their case and on 26-3-2010 formally charged them for the offence under section 9(c) of C.N.S.A. For smuggling narcotics in 78 packets totaling a weight of 78 Kg in secret cavities of the Bus. Muhammad Alamgir and Jahenzab pleaded not guilty and thus the trial commenced.
6. The prosecution produced Sardar Abdul Waheed Assistant Director, ANF (P.W.1) who inter alia, testified that on secret information, the Bus was stopped and on search of the same, 78 Kg of Charas was recovered from its secret cavities: that the present two appellants were also arrested from the spot: and that the samples of the narcotics recovered from the Bus were duly sent 14 chemical examination, which finally reported the same to be "Charas Pukhta".
Asmatullah Khan, Head Constable Police Station Anti-Narcotic Force, Peshawar (P.W.2) testified inter alia, that he was the marginal witness to the recovery memo of the 78 packets of charas.
Muhammad Ayub Khan, Moharrar Police Station ANF Peshawar (P.W.3), who testified, inter alia, that the P.W.1 handed over the case property along with the 78 parcels of samples to him and he sent the same for chemical analysis to the FSL, Rawalpindi.
Mushtaq Ahmad Constable Police Station ANF Peshawar (P.W.4) who testified inter alia, that P.W.3 handed over to him 78 sealed parcels of samples to be taken to FSL Rawalpindi and he obtained a receipt for the same. After him, the prosecution closed its evidence.
7. Thereafter, the statements of Muhammad Alamgir and Raham Zaib were recorded under section 342 Criminal Procedure Code, 1898, ("Cr.P.C."). They apart from slating that they were innocent and had been falsely charged, denied their presence in the Bus or having any concern with the recovered "Charas Pukhta". They however, declined to produce any witnesses to substantiate their defence or to be examined under oath under section 340(2) Cr. P. C .
8. The trial Court vide judgment dated 30-4-2010 convicted and sentenced appellants Muhammad Alamgir and Raham Zaib and sentenced them to life imprisonment with line of Rs.100,000 and in default of payment of fine to undergo a further imprisonment of six months.
9. During the proceedings of the trial appellant Huner Shah on 22-3-2010 moved an application for the release of the Bus.
He claimed to be the owner thereof and that he had no knowledge of the commission of the offence. The said application was kept pending and decided vide judgment dated 30-4-2010, wherein it was held that:-- "case property i.e. Bus bearing registration No.K-8927/Peshawar is confiscated to the State as the actual owner has not shown through evidence during the trial that he was not having knowledge of the contraband therein. The same be disposed of in accordance with law."
10. The learned counsel representing the appellants Muhammad Alamgir and Raham Zaib, vehemently argued that once the appellants were declared to be "child" under the Juvenile Justice System Ordinance, 2000 ("Ordinance") then the trial Court could not sentence them to imprisonment but in fact had to release them on probation unless reasons were clearly recorded from not doing so that the role attributed to Muhammad Alamgir being that of the conductor could not be held responsible for the contraband recovered from the secret cavities, and that essential requirement of proving the secret cavities was not carried out in accordance with law as the Bus was never produced in evidence.
11. In Criminal Appeal No.462 of 2010 the learned counsel of Hunar Shah, drew our attention to sections 31 and 32 of C.N.S.A. And argued that the requirement provided in the proviso to section 32 of the C.N.S.A. Had not been complied with by the trial Court.
12. The learned counsel for the state vehement rebutted the assertions of the appellants in all three appeals.
In regard to the conviction and entente awarded to Muhammad Alamgir and Rehman's Zaib the learned counsel contended that the trial Court had correctly appreciated the evidence produced by the prosecution and stated that they had the conscious possession of the contrabands as they did not take any specific plea in their statements recorded under section 342 of the Cr.P.C. Their denial to be arrested from the Bus in their statements under section 342, Cr.P.C. Clearly showed their weak stance taken before the trial Court; that under section 12 of the Ordinance, the trial Court could sentence a juvenile to life imprisonment; that reasons were only to be recorded by the Judge Juvenile Court when probation was to be granted and not otherwise; that section 78 of C.N.S.A. Had overriding effects over section 11 of the Ordnance and hence the requirement of recording of reasons was not mandatory.
In regard to Criminal Appeal No.462 of 2010 filed by Hunar Shah, the learned counsel for the State contended that the application of the appellant for possession of the Bus on superdari, constituted a "notice as provided under section 32 of the C.N.S.A.; and that the said application, could not be decided on merit as the main case had been decided and thus the said application of Hunar Shah had become infructuous.
13. The Valuable arguments of the learned counsel for the parties heard and the record of the case thoroughly considered.
14. The record shows that the prosecution has produced evidence to the effect that 78 Kg of narcotics was recovered from the Bus, Secondly that the recovered narcotics were chemically examination by FSL, Rawalpindi and found to be "Charas Pukhta" and thirdly, that the Bus was driven by appellant Raham Zaib and appellant Muhammad Aurangzeb was his conductor of the Bus and were arrested from the spot.
Thus it would be safe to conclude that the prosecution has at least discharged its initial burden of proving the recovery of "controlled substances" from the appellants, as provided under section 29 of the C.N.S.A. Having done so the onus of proof shifted upon the appellants to prove that they were not in "possession" of the "controlled substances". Though the prosecution has built up its case on the testimony of ANF personnel and no objection was taken regarding their having any personal against the appellants, what to say of bringing on record any evidence to set up a plausible defence to discredit the said prosecution witnesses. In turn the appellants have during their examination under section 342 of the Criminal Procedure Code, 1898 ("Cr.P.C.") simply denied their presence in the Bus, any concern with the recovered narcotics as reported in the F.I.R. And testified by the prosecution witnesses. Simply denying the same, without producing any evidence support of their denial, would be no legal value.
15. The august Supreme Court in lsmaeel v. The State (2001 SCMR 27) has while dilating upon the standard of proof required under the enabling provisions of C.N.S.A. Held that:-- "The standard of proving the case under special law is different in case the special law is read as a whole while comparing with the general law. It is settled principle of law that special law excludes the general law."
Keeping the aforementioned dicta as our guiding principle and there being no clear defence from the appellants this court finds that the prosecution has undoubtedly been able to prove the case against the present appellants. Their presence in the Bus at the time of arrest, the recovery of the contrabands from the secret cavities of the Bus, and the positive PST report clearly establishes the offence having been committed by the present appellants. Muhammad Alamgir and Raham Zaib and thus no legal ground to disturb the conviction and sentence awarded by the trial Court.
16. This leads us to another important aspect of release of appellants on probation being "Juvenile" or "child" under the Ordinance. It is admitted by all parties that appellants Muhammad Alamgir and Raham Zaib, were both "Juvenile", at the time of commission of the offence.
The circumstances for a "juvenile" to be released on probation has been provided in section 11 of the Ordinance which reads:-- "Release on probation.---Where on conclusion of an inquiry or trial, the juvenile court finds that a child has committed an offence, then notwithstanding any thing to the contrary containing any law for the time being in force, the Juvenile Court may, if it thinks fit;
(a) Direct the child offender to be released on probation for good conduct and place such child under the care of guardian or any suitable person executing a bond with or without surety as the court may require, for the good behavior and well being a child for any period not exceeding the period of imprisonment awarded to such child: provided that the child released on Probation be produced before the Juvenile court periodically on such dates and at times as it may direct.
(b) Make an order directing the child offender to be sent to a borstal institution until he attains the age of 18 years or for the period of imprisonment, whichever is earlier.
(c) Reduce the period of imprisonment or probation in the case where the court is satisfied that the imprisonment of probation shall be unnecessary.
17. The plain reading of section 11 of the Ordinance provides that the Juvenile Court, after it has decided that the accused juvenile has committed the offence "may", if it thinks fit, pass appropriate orders for releasing the said juvenile on probation. Thus there is discretion vested in the juvenile court to decide the issue of release of a juvenile on probation. No doubt the legislature has bestowed the final authority upon the juvenile court to decide the same but by no exercising the said discretion or the in-action or the juvenile court would be offending the dictates of law.
This Court in Mst. Rahat Bibi v. The State (2006 PCr.LJ 1562), while dilating upon the said discretion vested in the juvenile court under the Ordinance held that:- "The general principle of criminal jurisprudence is that all criminal statutes shall be interpreted in favour of the offenders and that benefit of any discretionary power cannot be withheld.':
18. In the present case, the trial Court has not exercised the said discretion vested in it under section 11 of the Ordinance. By not doing so, it has surely prejudiced the present appellants and committed an illegality which requires judicial correction.
19. Now moving on to Criminal Appeal No.426 of 2010, wherein Hunar Shah has challenged the confiscation of the Bus ordered by the trial Court vide the impugned judgment dated 30-4-2010.
Section 32 of the Act provides that, whenever an offence under the C.N.S.A. Is committed using the vehicle to transport the contrabands, the vehicle used is liable to confiscation to the state. This power to confiscate is, however, subject to a proviso provided in subsection (2) of section 32 of the C.N.S.A., which reads:-- "Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being or was to be committed."
In the present case, we note that the trial Court has confiscated the Bus carrying the contrabands, without any proof of the condition precedent stated in the aforementioned provision of the C.N.S.A.
There is no evidence produced by the prosecution to prove firstly as to who was the owner and secondly, that the said owner knew that the offence was being or was to be committed.
Section 33 of the Act further provides power to the Director General A.N.F. To apply to the special court to allow sale of a vehicle, which is seized under 0. N.S.A. In case the sale thereof would benefit the owner. The said sale is to proceed in accordance with the rules made under the C.N.S.A. The provision further provides that in case it is decided that the vehicle seized was not liable to such confiscation, the entire sale proceeds are to be handed over to the owner.
In the circumstances, the order of confiscating the Bus, without considering the claim of ownership of appellant Hunar Shah, was illegal and violates the provisions of C.N.S.A.
For the reasons stated herein-above, this court is of considered view that in:--
(I) Criminal Appeal No.431 of 2010. The appeal is partially allowed, the conviction and sentence awarded to the appellant Muhammad Alamgir is maintained, however, the present case is remanded back to the trial Court to decide, after providing opportunity of hearing to the present appellant and rendering reasons, regarding the exercise of its discretion, as provided under section 11 of the Ordinance, to release the appellant on probation and the terms thereof.
(ii) Criminal Appeal No.482 of 2010. The appeal is partially allowed, the conviction and sentence awarded to the appellant Raham Zaib is maintained however the present ease is remanded back to the trial Court to decide, after providing opportunity of hearing to the present appellant and rendering reasons, regarding the exercise of its discretion, as provided under section 11 of the Ordinance, to release the appellant on probation and the terms thereof.
(iii) Criminal Appeal No. 462 of 2010. The appeal is accepted and the confiscation order of the bus bearing registration No. NK8926/Peshawar is set aside and the case is remanded back to the trial Court to inquire into the claim of ownership made by the present appellant by providing the present appellant the opportunity to produce evidence regarding his ownership of the said bus, and dispose of the same in accordance with provision provided in section 32 of C.N.S.A.