' ABDUL SHAKOOR PARACHA, J.---Javed Akhtar son of Allah Razi appellant, impugns the judgment, dated 2-10-2002 passed by the Additional Sessions Judge/Judge Special Court, Anti-Narcotics, Attock whereby he was found guilty under section 9-C of C.N.S.A., 1997 and was convicted and sentenced for life imprisonment with a fine of Rs.4,00,000 (four lac). It was further ordered that in default of payment of fine, he shall further undergo five years R.I. He was also awarded benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that Inspector/S.H.O., Police Station, Attock Khurd on 19-1-2001 along with other police officials apprehended the appellant and his co-accused Manzoor Ahmad, when the Suzuki Pick-up No.4299/AD driven by the Baber Hussain Shah proceeding towards Attock was stopped by Akhtar Baig, S.-I./ Sergeant. Inspector, S.H.O. Who received spy information that two persons would take narcotics in a black box through Suzuki Pick-up No.4299/AD and the destination is Karachi. The raiding party reached in the area of Haji Shah and the said Suzuki Pick- up wherein two persons sitting on the backside with a black coloured wooden box reached there.
S.H.O. Came to know that Javed Akhtar and Manzoor Ahmad were carrying the box in the said Suzuki, and they are going to Karachi through train. The said box was opened; checked and found two black bags with 20 packets of Charas. Garda-numa was weighed and the same become 20 Kgs. Some quantity from every packet total 200 grams was taken and separated and made it into a sealed parcel for chemical analysis. The remaining Charas was also taken into possession along with sample parcel through recovery memo. Exh. P.D. The box along with lock and two bags were also taken into possession. On search of the appellant Javed Akhtar Rs.10,100 N.I.C. And a railway ticket bearing name of the appellant were recovered and taken into possession Exh. P.E. While on personal search of Manzoor Ahmad accused Rs.3,800 a wrist watch, railway ticket. N.I.C. Recovered and taken into possession Exh. P.F. The case was registered against the appellant and the co- accused. Manz'oor Ahmad being Army employee was summoned by the Army and was sentenced for 6 months R.I. And was reduced in rank vide order, dated 20-5-2002. On submission of report under section 173, Cr.P.C. Against the appellant Javed Akhtar charge was framed against him to which he pleaded not guilty and claimed trial.
3. To prove the case against the appellant Javed Akhtar, prosecution produced Muhammad Liaqat Abbasi (Executive Magistrate) who appeared as P.W.4. He recorded the statement of Baber Hussain Shah Exh. P.C.2 on the application of Investigating Officer Exh. P.B. Raja Taifoor Akhtar, S.H.O. P.W.5 Ghulam Rasool, A.S.I. Who along with Mansab Khan, P.W signed the recovery memo. Exh. P.D. And Exh. P.E. Appeared as P.W.6. Chemical Examiner report was produced in evidence as Exh. P.H.
Thereafter, the prosecution closed the evidence.
4. Statement of the accused under section 342, Cr.P.C. Was recorded. He denied all the allegations and recovery of narcotics from him. He stated that he was arrested from village at about 10-00 a.m.; he is innocent; there was enmity of murder with the driver of vehicle and thus he has been falsely involved. He opted to produce evidence and produced report under section 173, Cr.P.C. Exh.
D.A., F.I.R. Exh.D.B., report under section 173, Cr.P.C. Exh.
D.C. Along with F.I.R. Exh. D.D. Photocopy of judgment, dated 9-3-2002 "State v. Farooq Shah etc." mark-D/1 (under objection) and closed his defence. After hearing the parties, learned trial Court proceeded to convict the appellant as aforesaid.
5. Before us, learned counsel for appellant contends that the statement of the prosecution witnesses and the accused under section 342, Cr.P.C. Were recorded by the Court as Additional Sessions Judge and not by Judge, Special Court constituted Under C.N.S.A., 1997, therefore, conviction and sentence of the appellant is void. This contention of the learned counsel has no force. It is not controverted that Additional Sessions Judge was also Judge, Special Court under the C.N.S.A., 1997 and had power to try the case under section 9-C of the Act ibid. Moreover, the objection of the jurisdiction was not raised during the trial and no prejudice has been caused to the appellant. Next he contends that conscious possession of the appellant over the alleged recovered Charas has not been proved by the prosecution. The box from where the alleged Charas was recovered was locked therefore, it cannot be said that the appellant had the possession of the box from where the Charas was recovered. Adds that the prosecution has to establish its case against the accused beyond all reasonable doubts. A plea taken by an accused may fail but he cannot be convicted on such a plea. Reliance is placed on the case reported as Noor-ul-Haq v. The State 1992 SCM R 1451 20 Kgs. Charas which was being carried by the appellant along with Manzoor Ahmad co-accused in Suzuki No.4299/AD driven by Baber Hussain Shah has been proved by the testimony of Raja Taifoor Akhtar, P.W.4 and A.S.-I. Ghulam Rasool P.W.5. On the application of the Investigating Officer statement of Baber Hussin Shah driver was recorded under section 164, Cr.P.C. (Exh. PC/2) shows that it came to the knowledge of the driver that Manzoor Ahmad was an Army man and the appellant along with him was carrying 20-Kgs. Charas. Baber Hussain Shah driver disclosed that near the mosque of Sonobur Shah at local road the army person Manzoor Ahmed with locked box along with small luggage of domestic use boarded in the Suzuki while Javed Akhtar was standing.
Both the accused boarded on the back seat of Suzuki. The Chemical Examiner report Exh. P.H. Is positive, therefore, we are constrained to hold that the appellant had the conscious possession over the alleged Charas along with his co-accused Manzoor Ahmad. The case of Noor-ul-Haq 1992 SCM R 1451 is not applicable in this case, because the trial Court has convicted the appellant on the strength of prosecution evidence and not because he had taken a false plea during the trial.
6. The objection of the learned counsel on the statement of Baber Hussain Shah recorded under section 164, Cr.P.C. By P.W.4 Muhammad Liaqat Abbasi (Executive Magistrate) is that the said driver was not produced during the trial, therefore, the statement recorded under section 164, Cr.P.C.
Could have not been relied upon by the trial Court. However, it is contended that C.W.1 Muhammad Nawaz Process Server was entrusted with the bailable warrants to effect service of Baber Hussain Shah driver. No opportunity of cross-examination to the above said C.W.1 Muhammad Nawaz was afforded to the appellant, therefore, the statement of Baber Hussain Shah could have not been relied upon as per section 265-I, Cr.P.C. Reliance has been placed on case reported as Salehon v.
The State 1971 PCr.LJ 224. To appreciate the contention of the learned counsel for appellant, reading of section 265-J, Cr.P.C. Is relevant which is as under:-- "Statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of Qanun-eShahadat, 1984."
' Article 46 of the Qanun-e-Shahadat Order, 1984, describes the cases in which statements by persons who cannot be called as witnesses are themselves relevant facts. Sub-clause (2) of Article 46 says that, "When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty, or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him." Therefore, on the touchstone of sub-clause (2) of Article 46 the statement of C.W.1. Muhammad Nawaz, process-server, who made report Exh. C/3, signed by him, that driver Baber Shah was not traceable was relevant. Statement of the witness/driver recorded under section 164, Cr.P.C. Was admittedly recorded in presence of the accused, who was given an opportunity to cross-examine. The admissibility of his testimony is subject to section 263- J of the Cr.P.C. And has rightly and legally been relied upon by the trial Court. Therefore, the argument of the learned counsel for the appellant that the statement of Muhammad Nawaz, C.W.1 could have not been relied is repelled. Suffice to say that, firstly the case of Salehoon v. The State 1971 PCr.LJ 224 is not applicable in this case and secondly section 264-J, contained in Chapter XXII, was brought by the Code of Criminal Procedure (Amendment) Act (XLIV of 1976).
6. From all the above said facts and the evidence discussed above, we are of the considered opinion that prosecution was able to prove the case against the appellant beyond reasonable doubt. Since the appellant introduced Manzoor Ahmad as army man to the Baber Hussain Shah driver but it had not on the record that the appellant had the knowledge that box carried by Manzoor Ahmad contained the alleged Charas. Furthermore, he did not touch the box and it is in evidence that the same was put by Manzoor Ahmad in the Suzuki of Baber Hussain Shah for onward transmission to Karachi, therefore, we hold that the appellant was guilty of offence for aiding, abetment or association, facilitation, incitement, inducement or counselling the offence punishable under C.N.S.A., 1997 and therefore, guilty of offence under section 14 of C.N.S.A., 1997 and notwithstanding anything contained in section 116 of the Pakistan Penal Code (Act XLV of 1860), be punishable with the punishment provided for the offence or such lesser punishment as may be awarded by the Court. In this view of the matter, we convict the appellant under section 15 of the C.N.S.A., 1997 and sentence him to seven (7) years' R.I. With a fine of Rs.2,00,000 (Rupees Two Lac) and in default of payment of fine, he shall further undergo one year R.I.
7. For what has been discussed above, we dismissed this appeal and modified the conviction of the appellant from section 9-C of C.N.S.A., 1997 to section 14 of C.N.S.A., 1997 and modified the sentence as aforesaid.
8.. With the above modification in the sentence awarded to the appellant, the appeal stands dismissed.