' SHAHID ANWAR BAJWA, J.---F.I.R. No,8 of 2004 was recorded at Police Station ANF, Clifton Karachi on 5-6-2004 for an incident of the same day. Complainant was Inspector Sardar Abdul Waheed posted at Police Station ANF, Clifton, Karachi.
2. It is stated in the F.I.R. That higher echelons received spy information that in a house in Railway Housing Society, Gulshan-e-Iqbal huge quantity of narcotics was lying. Consequently, the complainant accompanied with other police officials as well as officials of ANF proceeded to the house-in-question. Since there was not time enough for obtaining search warrant they did not get assistance of Magistrate. They reached at the spot at 1915 houRs, Locals were asked but they refused to become witnesses. Person available on the gate was arrested who upon enquiry stated to be its chowkidar. Police pose entered into house. A person standing in corridor made his escape good by climbing the wall. He was chased but could not be captured. As Inspector entered into residential portion of house with accompanying officials in one room three persons were found packing packets of narcotics in bags. Three persons as well as 4th one who was in kitchen of the house were taken into custody. Packets kept inside the bags as well those lying on the floor were opened for checking and they were found to contain charas as well as 4 packets on the floor contained heroin. Names of. 5 nabbed persons were enquired. One of the persons was the present appellant. In all 89 packets were found lying on the floor and from the present appellant 10 packets .Of charas were recovered. Each packet was found to be weighing 250 grams, from each packet 10 grams was separated and sent for chemical examination. Report was received positive. At the time of arrest the appellant had not attained age of 18 years and, therefore, his trial was separated under the Juvenile Justice System Ordinance 2000. On 26-8-2006 charge was framed in the following words:- "That on 5-6-2004 at about 1950 hours inside House No,E-27, Block 10-A, Railway Housing Society, Gulshan-e-Iqbal, Karachi you were found in possession of 4 kilograms of, narcotic/ heroin and 141.700 kilograms of Charas for trafficking in violation of section 6 which is punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 and within my cognizance."
3. At the trial Inspector Abdul Waheed was first witness. He, narrated story as narrated in the F.I.R.
P.W. 2 was Muhammad Hassan Head Constable. He supported prosecution case. P.W.3 was A.S.-I.
Nisar Ahmed of the police station. Thereafter statement under section 342, Cr.P.C. Was recorded.
Appellant denied all the charges and all the suggestions. He stated that he was passing by the bungalow-in-question to enquire an address of another house in the area. He rang at the bungalow in-question when all of a sudden two persons came from inside and forcibly pushed him into the bungalow. On his resistance some members of raiding party who were in civil dress arrested him. After trial, the trial Court vide judgment dated October 3, 2009 held the appellant guilty. It further observed that under the provision contained in section 12 of the Juvenile Justice System Ordinance, 2000 death penalty cannot be imposed on appellant. Consequently, appellant was ordered to undergo life imprisonment. A fine of Rs,50,000 was also imposed on the appellant.
4. Learned counsel for the appellant made the following submissions:--
(1) Appellant is a menial worker and even if what is stated by prosecution is admitted as true, the appellant never owned nor purchased nor was carrier- of the narcotics substance.
(ii) Appellant had not attained age of 18 years at the time of alleged offence and he has been falsely involved in the alleged offence.
(iii) In F.I.R. As well as in the statement of witnesses it is that from the bag which the appellant was packing 10 packets were recovered and all of them weighed 1.25 Kg. However, trial Court in the charge framed by it and in the judgment has held the appellant guilty of entire quantity of charas and heroin which were stated to have been found in the room where appellant was present with other three persons. Appellant in any case could not be said to be having custody of heroin or other material alleged to be lying on the floor.
(iv) In the F.I.R. It is not stated that at what time spy information was received. Raid was conducted at 8-00 p.m. There is no statement whatsoever as to why search warrants were not obtained and presence of Magistrate was not requested.
(v) While concluding his arguments learned counsel for appellant submitted that Jail Roll submitted by the Superintendent District Prison Malir on 21-3-2011 states that as on that date, including remissions, the appellant has already undergone 17 years and 6 days of incarceration.
Learned counsel submitted that appellant is a juvenal person and purpose of imprisonment in such cases is neither punitive nor retributive but, is reformative. He, therefore prayed that appellant be released on probation subject to his providing appropriate security.
(vi) Learned counsel submitted that if appellant is ordered to be released on probation he would not press this appeal.
5. Mr. Hussain Bux Baloch learned Special Prosecutor ANF opposed the request of learned counsel for appellant for release. On probation and submitted that there was huge quantity of narcotic substance not only charas but also heroin and therefore appellant does not deserve any leniency.
He stated that in view of the statement by learned counsel for appellant he has restricted himself only to the probation question.
6. We have considered submissions made by the learned counsel and have gone through the record.
7. Section 11 of the Juvenile. Justice System Ordinance, 2000 provides as under:- "ll. Release on probation:---Where on conclusion of an inquiry or trial, the Juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in 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 behaviour and well-being of the 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 time 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 eighteen 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 further imprisonment or probation shall be unnecessary. " -8 A perusal of the above provision indicates that after a child has been proved guilty of an offence notwithstanding anything, to the contrary contained in any law for the time being in force, the Court can order that the child be released on probation for good conduct and place such child under the care of a guardian br any suitable person executing bond with or without surety as the Court may require, for the good behaviour and well-being of the child for any period not exceeding the period of imprisonment awarded to such child. It further provides that such child released on probation may be ordered to be produced before the Juvenile Court periodically on such dates and times as it may direct.
9. Facts of the present case are that the appellant was child at the time when alleged offence took place. He was found in a room where narcotic substance was being packed. From the bag in which he was packing 10 packets of charas were recovered and from the floor and bags of other persons were recovered 80 packets or so of charas and four packets of heroin were recovered. From present appellant what was recovered were 10 packets of charas each weighing 1.25 kilograms.
Appellant was a menial worker who came from Balochistan and was hired by someone for packing the stuff. Trial record is absolutely silent as to who is person who owned the narcotic substance or the house. In fact it could not be otherwise because trial of appellant was separated from trial of other offenders, Appellant has been in jail since the date of incident in 2004. The Jail Superintendent has submitted jail roll. It is stated in the jail roll that as on 21-3-2011 appellant had served period of 17 years and 6 days, including remissions, and a period of 9 years, 11 months and 24 days remained. Jail Superintendent has also stated that conduct of appellant.Has been satisfactory all along.
10. The purpose of trial of a juvenile is not punitive or retributive but it is basically reformation.
Juvenile must learn lesson certainly the hard way and, therefore, reform himself to become a useful and responsible member of the society. Entire Judicial System and enforcing State mechanism must be directed in that direction. As has been held by the Peshawar High Court in Rabat Bibi's case (2006 PCr.LJ 1562) general principle of criminal jurisprudence is that all the statutes shall be interpreted in favour of offender and if any discretionary powers are vested in Court same would not be withheld.
11. Having looked at jail roll we are of the opinion that if appellant is kept in jail for long time, by the time comes out from the jail he would probably cross the threshold of age after which reformation would become less and less probable. We, therefore, in view of the above, hold that while conviction of the appellant is maintained, he deserves leniency and benefit of section 11. We, therefore, direct that the appellant be released on probation to the custody of his guardian or other respectable person from the area or village of his residence who stands surety in the sum of Rs,5,00,000 (Rupees five Lacs) to the satisfaction of Nazir of this Court. The appellant shall be kept on probation for a period of 5 years and shall be duty bound to report to the trial Court on first Monday of every month till expiry of the period of probation. If first Monday happens to be a holiday, the appellant shall appear before the trial Court on first working day after such Monday.
Appeal, subject to the observation and modification mane above, is dismissed. Listed application is disposed of.