NAZIR AHMAD BHATTI, J.---This criminal appeal, filed by the State, challenges the judgment dated 3-11-1991 of Additional Sessions Judge --II, Swabi whereby he acquitted Jamshed Ali, Ghazanfer Ali and Amjad Ali respondents herein of the charge under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The State appeal with regard to Ghazanfar Ali and Amjad Ali respondents Nos.2 and 3 was dismissed by a learned Division Bench of this Court on 12-10-1992. It was not disposed of in so far as Jamshed Ali respondent No.1 was concerned.
2. The facts of this case are very simple. Jamshed Ali respondent No.1 herein, was apprehended by ASI Jehanzaib Khan of Police Station Topi at Gandaf road about 2 k.Ms. Away from the police station on 20-1-1991 at about 10-00 a.m. While he was driving a Suzuki motor-car bearing No.PRM-8673.
Besides the respondent No.1, his three sons Irshad aged about 7/8 years, Asif aged about 5/6 years and Dilshad aged about 4/5 years were also travelling in the same car. After the search of the secret cavities of the motor-car 20 plastic bags each containing one kilogram of heroin were recovered therefrom. The investigating officer separated one gram of powder from each bag for chemical analysis and arrested the respondent No.1 and sent Murasila to Police Station Topi where F.I.R. No.9 was recorded on the same day.
3. The respondent No.1 made a confessional statement on 26-1-1991 before Mr. Mohsin Shah, Magistrate 1st Class/Resident Magistrate, Kalu Khan wherein he stated that Ghazanfar Ali and Amjad Ali respondents Nos.2 and 3 herein, had engaged him as a driver on payment of Rs.500 for taking the said powder to Gandaf road but he was apprehended by the police in the way. The respondent No.1 also admitted that his sons were travelling with him in the same car at that time.
After the confessional statement of the respondent No.1, Ghazanfar Ali and Amjad Ali were also implicated in the case.
4. After investigation all the three respondents were sent up for trial before the Additional Sessions Judge, Swabi who charged them under Articles 3 and 4 of the Prohibition Order to which all the respondents pleaded not guilty and claimed trial.
5. During the trial 4 witnesses were produced by the State for the prosecution. P.W.1 Saidul Ibrar DSP was present on Gandaf road along with Jehanzaib Khan ASI. They stopped the Suzuki motor-car and took it to police station. This witness further stated that the search of the motor-car was carried out in the police station and 20 packets of contraband were recovered from the secret cavity between the switch board and the engine. This witness further stated that the investigating officer prepared the recovery memo. And separated one gram of powder from each packet and made one bulk and prepared recovery memos. This witness attested the recovery memo. As a marginal witness. P.W.2 Jehanzaib Khan ASI is the investigating officer. He had stated that after stopping the car it was taken to Police Station Topi where search was carried out and from the aforesaid secret cavity 20 bags of plastic weighing 20 kilograms of heroin were recovered. This witness further stated that he had separated one gram of heroin from each packet as a sample for chemical analysis and made 20 parcels of match boxes. He also prepared recovery memo. In the presence of the marginal witnesses. P.W.3 Muhammad Nazir Khan was S.H.O. Of Police Station Topi during the days of occurrence. He submitted complete challan after completion of the investigation. P.W.4 Syed Mohsin Shah, Magistrate 1st Class recorded the confessional statement- of the respondent No.1 on 26-1-1991. He stated that he had asked the respondent to sit on the dice and disclosed his identity to him and also informed him that he was not bound to make confession and if he did so the same could be used in evidence against him. This witness further informed the accused that if he refused to make a confession he will not be remanded back to the police but will be sent to the judicial lock-up. He also asked the police officials and Naib Court to go outside the Court-room and after giving him sufficient time to think over it and when he became satisfied that accused was giving the statement voluntarily then he reduced the same into writing. After recording the confessional statement of the respondent it was read over and explained to him and he after admitting the same to be correct signed the same. This witness recorded the confessional statement of the respondent, and sent him to the judicial custody.
6. In their statements recorded under section 342, Cr.P.C. All the respondents denied the commission of the offence but none of them made a deposition on oath.
7. After the conclusion of the trial the learned Additional Sessions Judge acquitted all the three respondents. He came to the conclusion that the confessional statement of respondent No.1 suffered from illegality and there were also discrepancies in the prosecution evidence. The learned Additional Sessions Judge also observed that the provisions of section 103, Cr.P.C. Had not been complied with in carrying out the search of the motor-car.
8. In so far as the confessional statement of respondent Jamshaid Ali is concerned, the learned Additional Sessions Judge found two points; firstly, that it was obtained under duress as the respondent No.1 was in police custody for six days and that some legal formalities were not observed by the learned Magistrate. No doubt respondent No.1 was in police custody for six days but no evidence was brought on the record that it was obtained from him by coercion. The learned Magistrate, who recorded the confession, had clearly stated that he had observed all the legal formalities in recording it and had also explained all the effects of making the statement of the respondent No.1 before recording the same. The wording of the confessional statement is very clear and simple and it points out that it was voluntarily made by the respondent No.1. The learned counsel for the respondent No.1 had contended before us that the confessional statement had lost its efficacy as it was recorded six days after the arrest of the respondent No.1 and in this respect he relied upon the cases of Ghulam Hassan and another v. The State and Liaqat Bahadur and others v. The State PLD 1983 FSC 497 and PLD 1987 FSC 43. Regarding the non---observation of legal formalities the learned counsel relied upon the case of Syed Abid Hussain Shah v. The State (1983 PCr.LJ 882). However, we do not see eye to eye with him because we find that the learned Magistrate had observed all the legal formalities in recording the confession and after satisfying himself that the respondent No.1 was voluntarily making it and after understanding all the consequences of making confession.
9. In so far as discrepancy in the prosecution evidence is concerned, the learned Additional Sessions Judge noted that one witness had said that the balance and weights for weighing the recovered heroin powder were brought from the shop of Ghulam Haider by him while the other had said that he had brought weights and balance from the said shop. It was also observed by the learned trial Judge that the shopkeeper was not examined as a witness and it was discrepancy in the trial. We do not find that this was a discrepancy in the evidence or that it was very material in any way for effectively deciding the acquittal of the respondent No. 1 or otherwise. This was very minor affair and there was no need to record the evidence of the shopkeeper in this respect,
10. In so far as the question of compliance of section 103, Cr.P.C. Is concerned, it may be stated that it was not a search of any place but search of a vehicle. It did not come within the ambit of provisions of section 103, Cr.P.C. The learned Additional Sessions Judge was under some apprehension in this respect.
11. The net result of the above discussion is that the learned Additional Sessions Judge did not correctly apply his mind to the facts of the case and arrived at a wrong conclusion by misreading of evidence. Overwhelming evidence was brought on the record to prove the guilt of the respondent No.1. The latter was driving the car when he was apprehended by the police. Heroin powder was also recovered from the same car in his presence. The respondent No.1 also made a confession which was voluntary and without any legal infirmity. In the confessional statement the respondent No.1 clearly admitted that he had been only engaged to take the powder to Gandaf road and had received an amount of Rs.500 for the said purpose. All these circumstances clearly proved the guilt of the respondent No.1 and he .Was improperly acquitted.
12. We, therefore, accept this appeal, set aside the acquittal of respondent No.1 Jamshed Ali and hold him guilty under Article 3 of the Prohibition Order. He was guilty of transporting such a huge quantity of heroin powder when he was apprehended by the police party. We, therefore, convict Jamshaid Ali respondent No.1 under Article 3 of the Prohibition Order and sentence him to undergo rigorous imprisonment for 10 years, to suffer 15 stripes and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for one year. The respondent No.1. Shall also be entitled to the benefit under section 382-B, Cr.P.C. He shall be taken into custody to serve out the remaining sentence.