2010 P Cr (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The local police of the Police Station City, Kohat while present for checking on Peshawar-Bannu bypass road near city "Phatak" (gate) at a distance of 2 km towards west from the police station, intercepted a truck bearing registration No. 1856-C/Peshawar being driven by Abdullah Noor, the appellant, who tried to escape from the spot but was apprehended there and then. The police party recovered 40 packets of charas weighing 40 kg from the special ,portion of the fuel tank made for the purpose and then was booked under section 9 (c), C.N.S.A. 1997. On completion of the investigation, he was sent to the Judge Special Court/Additional Sessions Judge-III, Kohat for trial who on its conclusion, sentenced him to imprisonment for life with a fine of Rs.500,000 and in default of payment of fine to further undergo one year's S.I. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant and the truck was confiscated in favour of the State vide judgment dated 30-4-2009, hence, this appeal.

2. Learned counsel for the appellant contended that nothing was recovered from the immediate possession of the appellant, the alleged recovery was made from the special cavity made in the fuel tank of the truck but the charge framed by the trial Court is silent in this regard. He further submitted that the statements of P.W.3 and P.W.4 are inconsistent to the factum of recovery. Much stress was laid down by the learned counsel that the charge and the trial of the case has been made by the trial Court as an ordinary Court of Additional Sessions Judge and not as a Special Court constituted under C.N.S.A. In support of his submissions, he placed reliance on cases of Mst. Iqbal Bibi v. The State (2000 PCr.LJ 1812), Adil Hussain v. The State (2003 YLR 190), Gul Raeef Khan v. The State (2008 SCMR 865) and Sher Khan v. The State (2003 MLD 259).

3. As on the other hand, the learned State counsel while supporting the case of the prosecution and the impugned judgment submitted that recovery of the huge quantity of 40 kg of charas was proved beyond any shadow of doubt. Statements of the prosecution witnesses in spite of the lengthy cross-examination were not shattered. There was no material contradictions in the statements of the prosecution witnesses. The recovery of the narcotics from the custody of appellant was not only proved but was also certified by the FSL through its report. There was nothing on the record to suggest that the appellant was falsely charged on the basis of enmity or malice and requested for dismissal of the appeal. In reply to the argument of learned counsel for appellant about the status of the trial Court, submitted that the learned Judge of the trial Court was having jurisdiction to try the same.

4. We have heard the learned counsel for the parties and have gone through the record of the case. The record of the case would reveal that the appellant had floated a story that he was simply an employee/the driver of the truck whereas the same at the relevant time was driven by one Baz Gul resident of Dara Adamkhel, the original owner of the truck and he was unaware of the presence of the narcotics in the truck and the police let the said Baz Gul to escape and planted the recovery against the appellant. His baseless and afterthought version is belied by a joint statement of elders of the area duly verified by the political Naib Tehsildar that neither Baz Gul is resident of that area nor they know any person with the name of Baz Gul. The argument of the learned counsel for the appellant that the recovery was effected from the cavity specially made in the fuel tank and the charge framed against the accused does not mention any such cavity, again will have no force as the recovery was made from the fuel tank part and parcel of the truck, so making no reference to the fuel tank in the framing of charge at this stage would be immaterial and this at the most could be termed as an omission having no bearing on the merits of the case and the trial on this score cannot be vitiated.

5. The perusal of the evidence on the record would reveal that all the witnesses are unanimous in their statements as to the factum of recovery. The contradictions pointed out by the learned counsel for appellant in the statements of P.W.3 and P.W. 4 as to the factum of direction wherefrom the truck was coming, is not of so importance which B could vitiate the factum of recovery because the place where the truck was intercepted is near junction of Kohat-Hangu Road and Peshawar-Bannu bypass road and place of recovery in the circumstances cannot be disputed. The recovery has also been supported by FSL report. There is also nothing on the record to suggest that any of the P.Ws. had any animus or ill-will with the appellant which could constitute a reason for his false implication.

6. As far the question of jurisdiction of the trial Court as argued by the learned counsel for the appellant is concerned, that again will have no bearing on the recovery and trial of the case as vide notification S.O.(JUDL)HD/3-10/98, Pesh. Dated 20-3-1998, the Provincial Government in consultation with the Honourable Chief Justice of Peshawar High Court on the direction of the Federal Government had notified all the Sessions Judges and the Additional Sessions Judges in the Province to act as Judges of the Special Courts within the meaning of section 46 of the C.N.S.A., 1997, within their respective 'territorial jurisdiction. Besides, reference could also be made to the case of P.I.A.O. Gul v. The State (PLD 1960 Supreme Court (Pak). 307). The relevant portion from the judgment is reproduced as under:-- "In that view of the matter, the solitary misdescription in the charge, i.e. where the court described himself as District Magistrate would be without effect upon the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstratio non nocat. It would therefore be without effect upon the validity of the proceedings provided that the persons conducting those proceedings possessed in himself the capacity to do so." The misdescription of designation would have no effect on legality of trial when otherwise the Court had jurisdiction to try the same. The learned counsel for the appellant failed to persuade us for intervention. Hence, instant appeal being without force is hereby dismissed. H.B.T./192/P Appeal dismissed.