' Muhammad Tariq Abbasi, J.--By way of this appeal, a portion of order dated 28.8.2007, passed by the learned Additional Sessions Judge, Multan has been called in question, whereby Respondents No. 2 & 3, namely, Mst. Rani and Muhammad Ashiq alias Kali (hereinafter referred to as the respondents) have been sent on probation, for a period of three years and given under the supervision of Probation Officer, Multan, appointed under the Probation of Offenders Ordinance, 1960 (hereinafter referred to as the Ordinance).
2. The facts are that the respondents were challenged in case FIR No. 17, dated 22.11.2005, registered under Section 9(b) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as ' the Act), at Police Station, ANF, Multan, with the allegations that Heroin weighing 450-Grams was recovered from Mst. Rani respondent, whereas 300-Grams from Muhammad Ashiq alias Kali, respondent. During tendency of the trial, on 28.8.2007, the respondents opted to make confessional statements, hence recorded by the learned trial Court, whereby both admitted that the above- mentioned quantities of narcotic were, respectively recovered from their possession. However, they requested for pardon with an undertaking that in future they would never indulge in such like activity. On the basis of above said confessional statements, the learned trial Court passed the order dated 28.8.2007, whereby convicted the respondents under Section 9(b) of the Act and sentenced them to RI for two years and nine months, each, with fine of Rs. 20,000/-each, in default to further undergo SI for three months each. Benefit of Section 382-B Cr.PC was also extended to them. Instead of sending them to prisons, they were dealt with under Section 5 of the Ordinance and given under the supervision of the Probation Officer, for a period of three years, with the reasoning that Mst. Rani respondent was of young age and household lady, whereas Muhammad Ashiq alias Kali respondent was a juvenile being less then eighteen years old and also sole earning member of his family.
3.The learned Special Prosecutor for ANF has objected the impugned order to the extent of sending the respondents on probation, with the contention that a Court constituted under the Act was not at-all competent to send the respondents on probation.
4.Arguments heard. Record perused.
5.The only point before us is, whether in narcotic cases registered under the Act, a convict can be dealt with under the Ordinance and sent on probation or otherwise.
6.Under Section 3 of the Ordinance, a High Court a Court of Sessions, a Magistrate of 1st Class and any other Magistrate especially empowered in this behalf, may exercise powers under the Ordinance, whether the case comes before it for original hearing or in appeal or in revision.
7.Section 47 of the Act has made the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code), applicable, in a trial or appeal before a Special Court in the following terms:- "47. Application of the Code of Criminal Procedure, 1898.--Except as otherwise provided in this Act, the provisions of the Code would be applicable during trial and appeals, in the narcotic cases.
8.When the Code is applicable in narcotic cases then Section 562 of the Code could not be brushed-aside, which speaks as under:- "56. Powers of Court to release certain convicted offenders on probation of good conduct instead of sentencing to punishment. When any person not under twenty one years of age is convicted of an Offence punishable with imprisonment for not more than seven years, or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or [imprisonment] for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be good behavior ode of Criminal Procedure, 1898 (Act v. Of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence) shall apply, to trials and appeals before a Special Court under this Act." From the above-mentioned provision, it is clear that until and unless not expressly excluded, provisions of the C Provided that, where any first offender is convicted by a Magistrate of the third class, or a Magistrate of the second class not specially empowered by the Provincial Government in this behalf and the Magistrate is of opinion that the powers conferred by this section should be exercised he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class [x x x] forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in manner provided by Section 380."
9. In this way, it can safely be held that even in narcotic cases, , where the Court would deem it proper, for betterment of an offender, instead of sending him to imprisonment can send him on probation.
10. Resultant, the above-mentioned objection being misconceived is rejected and consequently the appeal having no force-or merit is dismissed.