2002 PLP 3843(2) (YLR)

Noor Alam Khan for Appellant. Tariq Khan Kakar for the State. Date of hearing: 27th August, 2002. TARIQ PARVEZ KHAN, J.‑‑ Miskeen, resident of Pir Ghaib Baba, Peshawar is accused of trafficking in narcotics when on 1‑9‑1996 from a Truck bearing registration No. 1159‑GLTA driven by him, was stopped by the staff of ANF (Anti‑Narcotics Force) and from its secret cavities 507 k.gs. 'Charas' was recovered. F.I.R. Exh.PA bearing No.15 of Police Station, ANF was registered and investigation commenced. About 200 grams were taken from different packets of the recovered narcotics, different for chemical analysis and report Exh. PL1 was received in positive.

2. Contention of the counsel for the appellant are both on facts and legal premises including that there is no independent witness to the recovery that from all 507 packets, from each packet samples should have been separated; that neither the Truck was produced at the trial nor certificate of the Sessions Judge regarding destruction of the remaining case property; that the case property was allegedly destroyed without notice to the accused by a Magistrate who was not a Judicial Magistrate. It is also argued that charge was framed by Sessions Judge, Peshawar. One P.W. was examined, whereas the remaining evidence was recorded and trial concluded before Sessions Judge, Nowshera. Such would be an illegality which should vitiate the trial. Main contention of the counsel for the appellant is that as the offence was committed on 1‑9‑1996, on which date Ordinance LIX of 1996 was in force but because C.N.A. (Act XXI of 1997) promulgated on 11‑7‑1997 has not given protection to the Ordinance referred above, the trial of the appellant under the Ordinance, not given protection by the Act, would be a nullity.

3. Learned counsel for the State has relied on PLD 2002 SC 26, wherein almost similar legal background certain proceedings had commenced under the Ehtesab Ordinance CXI of 1996. Later such Ordinance was repealed by Ordinance XX of 1997 but was verbatum copy of the earlier Ordinance and the latter Ordinance was ultimately adopted by the parliament with nomenclature of Ehstesab Act, 1997, it was ruled by the August Supreme Court of Pakistan that where intention of the law giver remained to promulgate and re‑promulgate Ordinance on the same subject and ultimately makes an enactment on the same subject, this continue intention on part of the Legislature shall be deemed to protect all proceedings that have commenced under the repealed Ordinance notwithstanding if proceedings were not expressly protected in the saving clause of the Act. August Supreme Court while so holding have relied on provision of section 6 of General Clauses Act read with section 24 of the Act (ibid) and Article 264 of the Constitution of Islamic Republic of Pakistan.

4. The cognizance in the first instance was taken by the Sessions Judge, Peshawar and when he found himself to be deficient on the territorial jurisdiction, referred the matter to the High Court and it was under the orders of the High Court that case was sent for trial to the learned Sessions Judge at Nowshera. Under section 529 read with section 537 of the Criminal Procedure Code no conviction shall be invalid on the ground of error or omission in the charge unless an accused can show that he has been prejudiced in his defence. In the instant case no prejudice could be pointed out as the transferee Judge proceeded on the same charge without making any amendment therein which could have caused any prejudice to the accused.

5. The Magistrate who physically participated in the destruction of the case property had so acted under the orders of the Sessions Judge who was competent under section 516‑A, Cr.P.C. and there is no statutory provision entitling accused to a prior notice. However, where defence has any objection to the report of Chemical Examiner or intends to challenge that the retraining case property was not narcotics, he is/was not stopped by requesting the trial Judge to have again sent some narcotics for test out of the preserved samples taken at the time of destruction of the remaining case property.

6. Learned counsel for the appellant finally argued that appellant at best can be held to be a carrier and not a direct beneficiary. We doubt that at such belated stage and without there being any evidence we can infer what has submitted by learned counsel for the appellant that appellant is a mere carrier. Any defence an accused person intends to take, he is always at liberty but at an appropriate stage i.e. either at the stage of investigation or at any stage but before determination of trial.

7. As huge quantity of 507 k.gs. has been recovered from secret cavities of the Truck, driven by the present appellant, testified by official witnesses with no animosity against the appellant, the charge as levelled is proved. This appeal is, therefore, dismissed. H.B.T./593/P Appeal dismissed.