' MRS. IRSHAD QAISER, J.---This judgment shall dispose of Criminal Appeal No,632 of 2011 filed by Mian Khan under section 410, Cr.P.C. Read with section 48, C.N.S.A., 1997 against the order and judgment dated 3-10-2011 passed by Muhammad Arshad Khan, learned ASJ-VIII/Judge Special Court, Peshawar whereby the appellant was convicted and sentenced under section 9(c), C.N.S.A., 1997 for life imprisonment along with fine of Rs,50,000 in default of payment of fine to undergo further imprisonment of 3 months. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. In the backdrop of case F.I.R. No,37 dated 11-6-2010 under section 9(c), C.N.S.A., 1997 registered at P.S. ANF, Peshawar accused along with incriminating report drawn by local Police of P.S. ANF were forwarded to the Special Court, Peshawar to face trial on charge under section 9(c) of C.N.S.A., 1997.
3. The capitulated facts culminating in the registration of the case and trial of accused are that the local Police of P.S. ANF, on prior information regarding the smuggling of narcotics through Motorcar (Suzuki Mehran) bearing Registration No,LRB-9339 from Bara Tribal territory to Punjab, made Nakabandi under the command of Mushtaq Ahmad S.I. Bear Pishtakhara Chowk. In the meanwhile at about 9-00 a.m. On 11-6-2010 the said motorcar was sighted coming from tribal territory. Which was signalled to stop but the driver ignored the signal and tried to escape but was forced to stop by blocking the road through official vehicle and the driver was overpowered. During interrogation he disclosed his name Mian Khan son of Aulas Khan resident of Daulat Khel Nala Khawra Bara Khyber Agency. During the search of the car, accused himself disclosed that there are contraband which are concealed in the petrol tank of the car. On the pointation of accused the petrol tank was opened through plas in the presence of marginal witnesses. On search of the same car 11 packets charas garda wrapped in plastic were recovered from the petrol tank of the car which was weighed on the spot. The weight of each packet came out 1200 grams. Thus total 13.200 kg was recovered from the petrol tank of the car. I.O. Separated 10/10 grams from each packet for chemical examination and sealed in to 11 parcels having monogram of M.A. While the remaining was sealed in another bag. The recovered narcotics, personal belonging and vehicle No,9339 Suzuki etc. Were taken into possession through recovery memo Exh.P.W.4/1. Accused was arrested and murasila Exh.P.W.5/1 was drafted and sent to P.S. For registration of case. After completion of investigation the complete challan was submitted before trial Court, whereafter recording the statements of 5 P.Ws. And statement of accused under section 342, Cr.P.C., the impugned judgment was passed.
4. Learned counsel appearing on behalf of appellant by highlighting various minor and insignificant discrepancies tried to make out a case for acquittal of the appellant. Specially that prosecution badly failed to establish the conscious knowledge of the appellant regarding the concealment of the contraband in the vehicle in question. Whereafter he straightaway asked for remand of the case on this legal score that the punishment has not been awarded in accordance with the relevant provisions of Juvenile Justice System Ordinance 2000 and the sentence awarded to juvenile is too harsh. These arguments were denied by State counsel.
5. We have gone through the record carefully and considered the submission of the learned counsel for the parties.
6. A perusal of the evidence on record would reveal that all the witnesses consistently deposed that appellant was apprehended on the spot along with vehicle bearing No,9339 which was under his control as he was driving the same at the relevant time. Appellant had conscious knowledge of the narcotics concealed in the tank of the petrol of the vehicle because when he was signalled to stop he tried to escape but he A was forced to stop by blocking the road through official vehicle. After his arrest he himself disclosed the presence of narcotics in the car under his control and on his pointation the tank of petrol was opened which led to the recovery of huge quantity of narcotics.
The ocular account is furnished by P.W.4 Azhar Rehman, marginal witness of recovery memo.
Exhs.P.W.4/1 and P.W.5 Mushtaq Ahmed who is the complainant and seizing officer. Both P.Ws. Gave a vivid account of the occurrence in the Court. There is no discrepancies in the statement of any of the witnesses as could create dent/doubt in the prosecution version, notwithstanding, they were subjected to a searching cross-examination. There is also nothing on record as could even remotely suggest that the incriminating substance was either planted or the accused was falsely charged. Moreover the accused being driver of the vehicle was in exclusive control of the vehicle in which narcotics was kept in secret cavity, would be deemed to have been in the exclusive possession of the charas recovered from the car. In this regard reference is made PLD 2010 SC 1052.
The relevant portion of which is reproduced as under:-- ---Person on driving seat of the vehicle shall be held responsible for transportation of the narcotics, having knowledge of the same, as no condition or qualification has been made in S.9(6) of the Control of Narcotic Substances Act, 1997, that the possession should be an exclusive one and can be joint one with two or more persons---When a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence whatever articles lying in it would be under his control and possession.
Samples taken from the suspected substance were sent to FSL which were found to have contained charas. When this is the state of evidence we have no doubt in our mind that the charge against him stands proved beyond any shadow of reasonable doubts. Accused in circumstances has no legal ground to disturb the conviction and sentence awarded to him by the trial Court.
7. The crucial question for determination would be that whether the sentence given to the juvenile is harsh or not? There is no dispute that the appellant accused is juvenile because on 20-7-2011, at the time of framing of charge by learned ASJ-III/Judge Juvenile Court Peshawar the age of Mian Khan was about 17/18 years. Similarly this age of about 18 years had been recorded in the statement of accused under section 342, Cr.P.C. Which was recorded on 6-3-201.1, after about 9 months of the occurrence while the occurrence had taken place on 11-6-2010.
8. Learned trial Judge though conscious of the fact that accused is juvenile but because of huge quantity of charas declined to extend him the benefit of Juvenile Justice System.
9. Juvenile Justice System Ordinance, 2000 which was promulgated on 1-7-2000 carries the preamble that the same is promulgated to provide protection to the children involved in criminal litigation and to rehabilitate them in the society. The circumstances for a "Juvenile" to be released on probation has been provided in section 11 of the Ordinance which reads as under:-- Section 11. 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 a 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 of probation in the case where the Court is satisfied that further. Imprisonment or probation shall be unnecessary.
10. The plain reading of section 11 of the Ordinance provides that the Juvenile Court, after it has decided that, that the accused Juvenile has committed the offence may "if it thinks fit", pass appropriate order 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 legislation has bestowed the final authority upon the Juvenile Court to decide the same but by not exercising the said discretion or the in-action the Juvenile Court would be offending the dictates of Law.
Reference is made to 2006 PCr.LJ 1862 where in it is held:-- "The general principle of criminal jurisprudence is that all criminal statutes shall be interpreted in favour of offender and that benefit of any discretionary power cannot be withheld".
11. 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 appellant and committed an illegality which requires judicial correction.
12. Thus keeping in view the above facts and circumstances of the case, this appeal is partially allowed, the conviction and sentence awarded to appellant 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 reason, regarding the exercise of the discretion, as provided under section 11 of, the Ordinance to release the appellant on probation and the terms thereof.