' ROOH-UL-AMIN KHAN, J.---This appeal is directed against the judgment/order of the Judge Special Court/Juvenile Court, Banda Daud Shah Karak dated 8-4-2011, in case F.I.R. No,61 dated 28- 5-2009, registered at Police Station Banda Daud Shah Karak, whereby appellant was convicted under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life and to pay a fine of Rs,2,00,000 or in default thereof to undergo 2 years' R.I. Benefit of section 382-B, Cr.P.C. Has been extended in his favour.
2. The prosecution case evident from the contents of the F.I.R. Registered on the basis of murasila is that, Muhammad Amin Khan S.H.O. On the night of incident, on receipt of spy information qua smuggling of huge quantity of narcotics as well as arms and ammunitions through a Motorcar No,3625-B Kohat organized a policy contingent, consisting of police officials Muzafar Khan, Shafiullah, Syed Usman, Ghani ur Rehman, Muhammad Tariq, fenced the road at "Spina". In the meantime, he was informed by the informer regarding change of route by the above-said motorcar towards moza Zonaka, on which, Muhammad Amin Khan S.H.O. Along with police officials, named above, rushed to "Zonaka" situated on Highway. In the meanwhile, the motorcar arrived, which was signalled to stop, but the driver accelerated its speed, which was chased by the police party. The accused in order to built pressure on the police contingents, started firing from the motor car. At Meer Kalam Band, the motorcar went out of the control of its driver and met with an accident. The accused deboarded from the car and resorted to firing at the police party. The police party in their self defence also retaliated, however, the accused were arrested. During search of accused Usman Ghani, a Kalashnikov without number along with fitted magazine containing 16 live rounds of 7.62 bore was recovered while from possession of accused Khalid Usman a 30 bore pistol No,5813 along-with fixed charger containing 6 live rounds of the same bore was recovered.
Similarly, on the search of the motorcar, inter se rear and front seats, baked charas total weighing 3 maunds was recovered, out of which 4/4 grams charas as samples were separated for the purpose of chemical analysis. The accused were formally arrested. The vehicle and recovered charas were taken into possession vide recovery memo. Accused Usman Ghani, Khalid Usman and Naseebullah being injured, their injury sheets were prepared and were shifted to KD hospital for the purpose of treatment. Murasila was drafted and sent to Police Station for registration of case, on the basis of which case F.I.R mentioned above was registered.
3. On completion of investigation, appellant being a juvenile, separate challan under the Juvenile Justice System Ordinance, was submitted against him. He was summoned and properly charge sheeted to which he pleaded not guilty and claimed trial. To bring home guilt of the accused- appellant, the prosecution examined five' witnesses. After closure of the prosecution evidence, statement of the accused-appellant under section 342, Cr.P.C. Was recorded wherein he denied the prosecution allegations and professed his innocence. He however, declined to be examined on oath under section 340(2), Cr.P.C. Or to produce evidence in defence. The learned trial Court, on conclusion of trial, convicted and sentenced the appellant as mentioned above, hence this appeal.
4. We have heard the exhaustive arguments of the learned counsel for the appellants and learned D.A.G. For the State and have scanned the record with their valuable assistance
5. As per F.I.R, accused-appellant along with his co-accused was apprehended and took off in pursuit and from the motorcar a huge quantity of Charas weighing 3 maunds, consists of three bundles was recovered. To substantiate the case against the accused, Muhammad Amin S.H.O.
Who had seized/recovered the contraband from the motorcar of the appellant-convict was examined as P.W.S. He in his examination-in-chief reiterated the same version put forth in the murasila. He was subjected to lengthy and searching cross-examination by the defence but his testimony could not be shattered on material aspects of the case. P.W.2 Shafiullah, who is marginal witness of the recovery memo. Exh.P.C, vide which the recovered narcotics were taken into possession by the complainant S.H.O., has fully established his presence on the spot, at the time of arrest and recovery of the contraband A Charas from the motorcar in which the appellant along with his co-accused was travelling at the time of incident. This witness has also been passed through the test of cross-examination, but he remained consistent on all material particulars and fully corroborated the version of the prosecution. Despite exhaustive cross-examination of this witness, nothing advantageous could be elucidated rendering help to the accused. Both, Muhammad Amin S.H.O. Being seizing Officer and P.W. Shafiullah, witness to the recovery memo.
Are the star witnesses of the prosecution. Both have furnished the ocular account of the occurrence and have corroborated each other on all material particulars of the incident, such as the mode and manner of reaching the accused at the spot in a motorcar, its chase by the police party, and later on, recovery of the narcotics from the same. Both have established their presence at the spot at the time of arrest of the appellant and recovery from the vehicle driven by him. imilarly, the recovery of motorcar used in the commission of offence vide recovery memo Exh.PC/1 in accidental condition and arrest of co-accused, Khalid Usman and Usman Ghani in injured condition, out of whom Usman Ghani died later on, also establish the place of incident and the presence of the accused in the motorcar at the time of recovery. It is pertinent to mention here that section 29 of the CNS Act, 1997, cast a duty upon the Court to presume in a trial under the Act ibid that the accused has committed the offence, unless contrary is proved. In the instant case, as above, the prosecution has proved the recovery from the motorcar and the driver along with inmates have been apprehended on the spot. The chemical analysis report depicts that the recovered narcotics are Charas. Thereafter, the burden of proving that they were not in possession or knowledge of the contraband C in the motorcar, was upon the appellants, but the appellant has failed to offer any explanation. In his statement under section 342, Cr.P.C., he has either evasively denied or shown his ignorance about the recovery of huge quantity of narcotics from. The motorcar which was under his use and control being its driver. The incident is nocturnal and took place in the odd hours of the night, thus, travelling of the accused at the time of occurrence prove guilty conscience of his mind, for which he has not furnished any plausible explanation. Appellant and co-accused have furnished different versions regarding their travelling at the odd hours of the night, in their statements recorded under section 342, Cr.P.C., which D does not appeal to a prudent mind. The recovery of arms and ammunitions, detail of which has been given in the muraisla, further supplement the story of the prosecution. If there was nothing illegal in the motorcar, then why the appellant accelerated its speed, after being signalled by the police. All these circumstances run contrary to the versions furnished by the appellant and his co-accused in their statements. Plea of substitution and false implication, raised by the accused, in the peculiar circumstances of the case, is nothing, but merely an attempt to hide their own guilt, thus, defence version being false, fabricated and an afterthought, had rightly been rejected by the trial Court. The accused has failed to attract any circumstance to create a doubt in the prosecution case qua his innocence. It is well settled law that when conscience of the court is satisfied regarding commission of F offence then the technicalities and minor contradictions, which crept in with the passage of time may easily be ignored.
6. Travelling in motorcar No, 3625-B Kohat has not been denied by the accused. At investigation stage, co-accused Khalid Usman had approached the justice of Peace under section 22-A, Cr.P.C.
For registration of case against the S.H.O. Concerned, for commission of murder of his father Usman Ghani. In his application Khalid Usman has categorically admitted that at the fateful time, they were sitting in the said motor car and were going to Peshawar to consult a doctor for treatment of his ailing mother, but needless to say that not a single prescription qua treatment of alleged ailment has been produced. Similarly, co-accused Qimat Gul and others have taken fantastic plea that they being labours by profession were working near the spot of incident and after hearing the fire shots and crash of the motorcar driven by the juvenile accused/appellant, they attracted to the spot wherefrom they were arrested by the complainant S.H.O. The above said plea of the co-accused does not appeal to reason that at such an odd hours of the night what kind of work they were doing near the crime spot, which is admittedly a rocky and hilly area however, it proved the presence of appellant-accused at the spot and the factum of being driver of the motorcar.
7. Admittedly, huge quantity of 3 maunds baked charas has been recovered from the motorcar of the appellant and in the circumstances keeping in view the quantity and the price of the contraband which is definitely in millions, the question of foisting the same against the accused does not appeal to a prudent mind. There is no shred of evidence to show previous ill will, grudge, enmity or rancor of the appellants with the P.Ws. Mere fact that they are police officials would not discard their testimony because, police officials are as good witnesses like others and their testimony can be relied upon unless and until any enmity or ill will is proved on their part by the defence. Moreso, there is no hard and fast rule that only private witnesses tell the truth. All the P.Ws.
Are consistent on the place of occurrence, arrest of the accused and recovery of narcotics from the motorcar being driven by the appellant.. Besides, the recovered charas has been produced before the trial Court and duly exhibited as Exhs.P.1, P.2 and P.3 during the statements of the Seizing Officer and witness of the recovery memo.
8. As manifest from the murasila, after recovery of the narcotics, 4/4 grams charas as samples were separated and sent to the FSL for chemical analysis, report whereof Exh.PK, available on file, is in positive which further supplements the prosecution case. The argument of the learned counsel for the appellants about delay qua samples would be of no significance because there is no bar on the I.O. To send the sample beyond 72 hours of the seizure or receiving the FSL report with delay.
Control of Narcotics (Government Analysts) Rules, 2001, could not control substantive provisions of Control of Narcotics Substances Act, 1997, and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which the Rules were framed. Failure to follow Control of Narcotics (Government Analysts Rules, 2001 would not render the search, seizure and arrest under CNS Act, 1997 an absolute nullity and make entire prosecution case doubtful, except for the consequence provided in said rules. The rules are directory and not mandatory so cannot control the substantive provision of the Control of Narcotic Substances Act, 1997. Belated dispatch of sample for analysis would not be fatal to the prosecution case, in absence of any objection regarding the same having been tampered or manipulated. Reliance may be placed on case, titled, "Gul Alam v. The State (2011 SCM R 624). Moreso, we have to realize the ground realities that the occurrence has taken place in the jurisdiction of Banda Daud Shah, 'a remote area of the province. Police Force of this area is not equipped with sufficient means of communication, manpower and above all, absence of any evidence to presume that because of delay in dispatch of the samples from the recovered contraband, the same were tampered with. Thus, this argument would provide no benefit to the appellant.
9. The argument of the learned counsel for the appellant that S.H.O. Police Station Karak was not legally competent and authorized to enter into the area of Police Station Banda Daud Shah and arrest the accused, is flimsy and unimpressive. From the bare reading of the promptly lodged F.I.R., it is evident that on receipt of spy information, the S.H.O. Police Station Karak/complainant along with other police officials conduced "Nakabandi" at "Spina", during which time, he was informed by the informer regarding change of route by the motorcar towards the Highway proceeding via village "Zonaka", within the criminal jurisdiction of Police Station Banda Daud Shah, on the basis of which, the S.H.O. Along with police contingents started towards "Zonaka", where the said motorcar was seen coming towards them in a high speed. The driver of the vehicle accelerated its speed towards Kohat, when he was signalled by the police. The accused were pursuit and took off, after a long chase. In the above situation there would have been no occasion or opportunity for the complainant S.H.O., to inform the S.H.O. Of the Police Station Banda Daud Shah, in whose territorial jurisdiction the vehicle entered. Had the complainant S.H.O. Remained pause and static at the spot thinking about territorial jurisdiction of his Police Station that would have definitely provided vacuum and exit way to the narcotics peddlers. What more important in the circumstances was not the consideration of territorial jurisdiction of the Police Station but was the arrest of criminals/drugs peddlers. Thus, the complainant S.H.O. Has committed no wrong or illegality in busting the accused without caring for the territorial jurisdiction of the Police Station. The narcotics peddlers are not only the enemies of the parents of innocent youth, who have been indulged in the shocking habit of using narcotics because of these narcotics peddlers but they are also a menace for the entire nation and solidarity of the State. The income get from this shameful business of narcotics is being used for strengthening the network of the miscreants who are active in damaging the status and structure of this country. Thus, this illegal business should be curbed and the drugs peddlers should be met with iron hands particularly keeping in view the prevailing law and order situation in the country.
10. As regard the argument of the learned counsel for the appellant that at the time of incident the appellant was below the age of 18 years and thus being a juvenile, was entitled to be dealt with under section 11 of the Juvenile Justice System Ordinance, 2000, we have observed that admittedly, the appellant at the time of commission of offence was a juvenile, but at the time of arrest and conclusion of his trial and passing the impugned judgment of conviction, he had attained the age of 19/20 years. Section 11 of the Juvenile Justice System Ordinance, 2000, enunciates that where on conclusion of 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, 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 or 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. Similarly, under section 6 of the Juvenile Justice Rules, 2001, if the Juvenile Court on the conclusion of an enquiry or trial, finds that the juvenile has committed the offence, the Court may make an order directing the juvenile to be sent to a borstal institution until he attains the age of eighteen years or for such period of imprisonment as awarded to him by the Court whichever is earlier. To understand the importance of relevant provision, section 11 of the Juvenile Justice System Ordinance, 2000, is reproduced herein below:-- "S.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 think 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 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.
' It is manifest from the above quoted beneficial provision that mere minority or juvenile-ship is not the criteria for grant of relief under section 11 (Supra). In matter of conviction, there may be some minor offences, in which, the sentence may be normally short and if the court passed an order of conviction, in the circumstances the beneficial provision may be exercised in his favour. But, if convict is charged for a heinous offence and sentenced to life imprisonment, his case may not be treated at par with minor offences. The age type and seriousness of the offence and past record of criminal activities of the convict, at the time of conviction, shall also be a relevant factor, which shall also be adhere to Juvenile Justice System, which is certainly meant to treat a child accused with care and sensitivity, no doubt, offering him a chance to reform and settle into the mainstream of society but the same cannot be allowed to be used as a ploy to dupe the course of justice, while conducting trial and treatment of heinous offences. The court must be sensitive in dealing with the juveniles who are involved in cases of serious natures like drug lord, murder, gang rape, terrorism, sexual molestation and host of other offences. The minor/juvenile accused may never be allowed to abuse the statutory protection and concession, rather involvement in a flagitious crime, must be meted out stringent punishment to discourage the involvement of minors by the people for settling their score through them (juveniles). Thus, the above argument of the learned counsel for the appellant is unpersuasive.
11. The prosecution has fully proved the arrest and recovery of huge quantity of contraband narcotics from the vehicle of the appellant, through cogent and confidence inspiring evidence. The learned trial court has properly appreciated the evidence available on the record and has rightly convicted and sentenced the appellant-convict. The learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned judgment which may warrant interference of this Court in its appellate jurisdiction.