' RAJA SHAHID MEHMOOD ABBASI, J.---The petitioner through instant revision petition under section 435 read with section 439 of the Code of Criminal Procedure, 1898 assails the vires of judgment dated 07-07-2010 passed by the learned Judge, Special Court (CNS) Rawalpindi, in case FIR No, 92 dated 27-12-2008, under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Rawalpindi, whereby on the confessional statement of the respondent/accused Nasir Khan, convicted him under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 09 years' R.I. With fine of Rs,5,00,000/- or in default thereof to further undergo S.I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to the respondent.
' Aggrieved of this decision, the petitioner has challenged the same before this Court through the present criminal revision.
2. Succinctly, the prosecution story as per complaint, Ex.PA made by Waqar Ahmad S.I. PW.4 is that on 27-12-2008, he was posted as S.I. At Police Station ANF, Rawalpindi. On that day, he alongwith other ANF officials was present at ANF counter in the International Departure Hall of BBI, Airport, Islamabad and were busy in checking the passengers of Flight No, PK-775. They were being supervised by Major Fayyaz Hussain, DD/Incharge of the PS. At about 12.30 p.m. a passenger came at the ANF Counter along with a porter trolly carrying two suitcases thereon and a handbag. He disclosed his name as Nasir Khan accused/respondent and he was proceeding to Leads, the UK.
His bag and suitcases when checked, ostensibly they contained used garments but when checked minutely, the lower layers of both the suitcases were found double. The same were cut with the help of a cutter and recovered there from 2 packets each containing heroin off-white colour. The said packets when weighed, three packets contained three kilograms heroin each while the fourth packet contained four kilograms of heroin. Thus the total heroin recovered in this case came to 13 kilograms. One gram heroin was separated from each packet for the purpose of sample and four parcels containing one gram heroin each were prepared while the remaining heroin was also made into four separate parcels. On the personal search of the accused, his British Passport, Air- ticket, Mobile phone Nokia, cash amounting to Rs,1973/-, misc. Visiting cards, two rings, two lockets, one chain, phone diary, bag of black colour, misc. Garments, photo album and misc. Photographs were also recovered. Samples were drawn for chemical analysis; such memo of arrest and recovery was prepared in presence of two ANF official witnesses.
3. After formal investigation, the respondent was sent for trial before learned Judge, Special Court (CNS), Rawalpindi vide report under section 173, Cr.P.C. The respondent was indicted under section 9(c) of the Control of Narcotic Substances Act, 1997 dated 20-04-2009 to which he pleaded not guilty and claimed trial. After framing of charge the prosecution in order to prove the charge against the respondent got examined four witnesses as PW.1 to PW.4.
4. On 07-07-2014 after recording the statement of PW.4, the accused/respondent had made confessional statement, the relevant part of which is reproduced as under:- "Stated that the statement of Waqar Ahmad SI has been recorded in my presence. During his statement, he has admitted that sample was not taken from a packet containing four kilograms of heroin. In view of the said admission of Waqar Ahmad SI, the said four kilograms heroin cannot be used against me under the law. As such, only 9 kilograms heroin remains which can be legally considered against me. I am ready to take responsibility of the said 9 kilograms of heroin and I do hereby confess my guilt to that extent. I am suffering from Spinal Cord disease and I am a British National. Keeping in view my confessional statement, it is urged that I may be treated leniently in the matter of sentence. Having remained in jail for quite some time I have realized that what I had done was not only an illegal act but a sin. I repent upon my act and seek forgiveness from Al- Mighty Allah and leniency from this Court".
5. Keeping in view the above confessional statement of the respondent/accused and statement of Waqar Ahmad, SI (PW.4) in which he admitted the fact that samples were only taken from three parcels Containing 3 kilograms heroin each, the learned trial court convicted the respondent/accused as mentioned above.
6. Learned Special Prosecutor for ANF/p etitioner has argued that the impugned judgment is against the law and facts; that learned Court while awarding the sentence to the accused/respondent has completely failed to appreciate the law and did not apply its judicious mind to the facts of the case. He further maintained that the impugned judgment is based on conjectures and surmises; that the learned trial Court has awarded a lesser sentence to the accused on flimsy grounds. At the end, he prayed that the impugned judgment of the trial Court be set aside and the sentence awarded to the accused be enhanced as provided under the law.
7. We have anxiously considered the arguments of the learned Special Prosecutor and have gone through the record and observed that the criminal revision petition against the judgment which is called in question is not maintainable under the provisions of the Control of Narcotic Substances Act, 1997. There is no specific provision in the Act for challenging the order of Special Court (CNS) by way of revision. Only section in the Act is section 47, which makes the provision of Criminal Procedure Code, 1898 available for certain purposes.
8. For considering the question of applicability of sections 435 and 439, Cr.P.C., the Court has to consider the effect of sections 47 and 48 of the Control of Narcotic Substances Act, 1997 and for convenience of reference, the provisions of 47 and 48 of the Control of Narcotic Substances Act, 1997 are reproduced as under:- "Section 47. Application of the Code of Criminal Procedure, 1898. ---Except as otherwise provided in this Act, the provisions of the Code 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.
"Section 48. Appeal.---(I) An appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by a Bench of not less than two judges of that Court.
(2) An appeal against the order of a Special Court comprising a Judicial Magistrate shall lie to a Special Court comprising a Sessions Judge or an Additional Sessions Judge."
The plain reading of section 47 of the Control of Narcotic Substances Act, 1997 shows that the said section has made the Code of Criminal Procedure,1898 applicable to trial and appeals before a Special Court under this Act and has not transposed any remedy of appeal or revision from the Code of Criminal Procedure, 1898 to the Act of 1997 whereby the provision of section 48(1) of the Control of Narcotic Substances Act, 1997 contemplates an appeal to a High Court against an order passed by a Special Court comprising a Sessions Judge or an Additional Sessions Judge and in the case in hand the learned Judge, Special Court (CNS), trying the respondent was a Sessions Judge.
Thus, sections 435 and 439, Cr.P.C. Are inconsistent to the above provisions of A the Control of Narcotic Substances Act, 1997, therefore, order passed under the Control of Narcotic Substances Act, 1997 cannot be assailed by invoking revisional jurisdiction of this Court. The reasons for the same are that according to section 48 supra only appeal is provided against the judgment of conviction or order of acquittal. The provisions of sections 47 and 48, the Control of Narcotic Substances Act, 1997 cannot be read in isolation but those are to be read in conjunction with each other, which do not allow the impugned order passed by Special Court to be challenged in revisional jurisdiction vested in this Court. Here we are guided by the dictum laid down by the honourable Supreme Court of Pakistan while dealing such like legal propositions in the case of "Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi" (PLD 2013 SC 361) wherein at page 364 it was enunciated as under:- "4....The right of appeal conferred by section 48(1) of the Control of Narcotic Substances Act, 1997 is all pervasive catering for every kind of appeal from every kind of order passed by such a Special Court and the provision of section 48(1) of the Control of Narcotic Substances Act, 1997 do not make any distinction between appeal against a conviction, an appeal of acquittal or an appeal seeking enhancement of a sentenced passed against a convict..."
9. For the reasons stated hereinabove, and keeping in view the guidelines by the honourable Supreme Court of Pakistan, we are of the considered view that criminal revision. Petition under section 435 read with section 439 of the Code of Criminal Procedure, 1898 for the enhancement of the sentence of respondent/accused is not maintainable under the law. Consequently, the criminal revision petition is dismissed.