Case LAw ("Charas" is less harmful and dangerous a drug unlike other narcotics such as Heroin--As such, case of appellant calls for a lenient view)

 PLJ 2021 Cr.C. (Lahore) 146 (DB)

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Conviction and sentence--Challenge to--Recovery of charas--Quantum of sentence--Prosecution has undoubtedly established factum of recovery of 1900 grams of "Charas" (P-l) from possession of appellant--PW-2 and S.I. (PW-3) were examined as witnesses of recovery of "Charas" from appellant and made their statements in this regard before trial Court--While going through statements of these witnesses, Court have examined that recovered "Charas" was duly exhibited in their evidence which was taken into possession through recovery--Both witnesses have given each and every detail of recovery proceedings and were cross examined at length--Nothing fruitful cropped up during said cross examination--The theme of cross-examination also reveals that facts in issue were not being challenged seriously--Section 29 of Control of Narcotic Substances Act, 1997 which provides that once prosecution is able to bring on record evidence to discharge initial onus of proof then burden shifts upon accused to prove otherwise--The report of Punjab Forensic Science Agency, Lahore, was also tendered in evidence which confirms nature of recovered substance--Nothing is available on record which could establish that these witnesses deposed against appellant and implicated him in this case due to previous enmity, grudge or malice or to fulfill some ulterior
motive--The prosecution also successfully proved safe deposit of case property from place of occurrence to police station and from police station to office of Punjab Forensic Science Agency, Lahore by producing witnesses in support of this--Therefore, Court is persuaded to hold that appellant was rightly convicted by trial Court--Thus see no infirmity in impugned judgment and as such, we find no ground or justification to warrant interference in same--So far as quantum of sentence awarded to appellant is concerned that appellant suffered rigors of a protracted trial--It seems likely that appellant would have mended his conduct in these years--Counsel for appellant on appellant's instructions, has earnestly and humbly prayed that appellant may be given a chance to rehabilitate
himself--Mitigating circumstances, as such, in interest and for safe administration of justice, sentence already undergone by appellant would be adequate--Consequently, while maintaining conviction of appellant but taking into consideration above mentioned mitigating circumstances, reduce sentence of rigorous imprisonment from four years and six months to that of already undergone by appellant--However, sentence of fine of Rs. 20,000/- to be paid by appellant shall remain intact but period of simple imprisonment, to be undergone by appellant in default of payment of fine, is reduced from five months to fifteen days--Therefore, Court while maintaining conviction of appellant recorded by Additional Sessions Judge/Model Criminal Trial Court/Judge Special Court CNS, Rawalpindi vide judgment dismiss instant Criminal Appeal with above modification in quantum of sentence.          

                                                               [Pp. 149, 150 & 151] A, B & D

PLJ 2017 SC 660, 2011 SCMR 965, 2015 SCMR 735, 2015 SCMR 308, 2007 SCMR 206 and PLD 2017 SC 671.

Charas--

----Moreover, "Charas" is less harmful and dangerous a drug unlike other narcotics such as Heroin--As such, case of appellant calls for a lenient view.                                      [P. 150] C

Raja Haseeb Sultan, Advocate for Appellant.

Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General for State.

Date of hearing: 12.11.2020.

 PLJ 2021 Cr.C. (Lahore) 146 (DB)

[Rawalpindi Bench, Rawalpindi]

Present: Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ.

NAZAKAT ALI--Appellant

versus

STATE--Respondent

Crl. A. No. 689 of 2019, heard on 12.11.2020.

Judgment

Sadiq Mahmud Khurram, J.--The appellant namely Nazakat Ali son of Liaqal Ali was tried by the learned Additional Sessions Judge/ Model Criminal Trial Court/ Judge Special Court (CNS), Rawalpindi in case FIR No. 504 of 2019, dated 01.07.2019, registered at Police Station Naseer Abad, District Rawalpindi, in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997. The learned trial Court vide judgment dated 27.09.2019, convicted the appellant namely Nazakat Ali son of Liaqat Ali and sentenced him as infra:

Nazakat Ali son of Liaqat Ali

Rigorous Imprisonment for four years and six months under Section 9(c) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs. 20,000/-, in default thereof was directed to further undergo simple imprisonment for five months.

The appellant was extended the benefit provided under Section 382-B of the Code of Criminal Procedure, 1898.

2. Feeling aggrieved Nazakat Ali son of Liaqat Ali (convict) lodged the instant Criminal appeal No. 689 of 2019 assailing his conviction and sentence.

3. Precisely, the necessary facts of the prosecution case are that on 01.07.2019, the appellant was apprehended and 1900 grams of "Charas" (Ex.P-1) was recovered from his possession which was taken into possession through recovery memo (Exh.PA).

4. On the above stated facts FIR No. 504 of 2019(Exh. PD), dated 01.07.2019, was registered at Police Station Naseer Abad, District Rawalpindi in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997.

5. After the formal investigation of the case, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court. The learned trial Court framed the charge against the accused on 21.08.2019 under Section 9(c) of the Control of Narcotic Substances Act, 1997. The appellant pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.

6. In order to prove the facts, the prosecution got as many as five witnesses examined. The prosecution got Imran Akhtar 6578/HC (PW-2) and Ameer Gondal S.I. (PW-3) examined as witnesses of recovery of the "Charas" (P-l) from the appellant. Muhammad Aslam S.I. (PW-4) recorded the formal FIR (Exh. PD) on 01.07.2019. Mohsin Abbas 6359/HC (PW-1) stated that on 01.07.2019, he received two parcels said to contain "Charas" from Masood Iqbal S.I./NIU (PW-5) and on 04.07.2019, he handed over one sealed parcel said to
contain sample drawn from the recovered "Charas" to Ameer Gondal S.I. (PW-3) for its onward transmission to the office of Punjab
Forensic Science Agency, Lahore. Masood Iqbal S.I. NIU (PW-5) investigated the case from 01.07.2019 till 06.07.2019 and detailed the facts of the investigation in his statement before the learned trial Court.

7. On 12.09.2019, the learned ADPP gave up PW Ali Shad 6462/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency (Exh.PF).

8. After closing of prosecution evidence the statement of the appellant was recorded under Section 342 of Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate to the Investigating Officer. The appellant opted not to appear in terms of Section 340(2) of the Code of Criminal Procedure, 1898 and did not adduce any evidence in his defence.

9. After completion of evidence and hearing both the parties the learned trial Court held the appellant guilty of offence and sentenced the appellant as referred to above.

10. At the outset, learned counsel for the appellant contends that he would not press the instant appeal in case this Court, while maintaining the conviction of the appellant, reduces the sentence of the appellant to the period already undergone by him. The learned Deputy Prosecutor General has not opposed the contention raised on behalf of the appellant and stated that he has no objection if the sentence of the appellant is reduced to the period already undergone by him.

11. We have thoroughly considered the respective arguments of learned counsel for the parties and have examined the entire record.

12. Although the learned counsel for the appellant has not opted to assail the conviction recorded by the learned trial Court against the appellant still we have gone through the evidence on the record. We find that the prosecution has undoubtedly established the factum of recovery of 1900 grams of "Charas" (P-l) from the possession of the appellant. Imran Akhtar 6578/HC (PW-2) and Ameer Gondal S.I. (PW-3) were examined as witnesses of recovery of the "Charas"
(P-1) from the appellant and made their statements in this regard before the learned trial Court. While going through the statements of these witnesses, we have examined that the recovered "Charas" was duly exhibited in their evidence as Exh.P-1 which was taken into possession through recovery memo (Exh. PA). Both the witnesses have given each and every detail of the recovery proceedings and were cross examined at length. Nothing fruitful cropped up during the said cross examination. The theme of cross-examination also reveals that the facts in issue were not being challenged seriously. We are also conscious of Section 29 of the Control of Narcotic Substances Act, 1997 which provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise. The report of Punjab Forensic Science Agency, Lahore, (Exh.PF) was also tendered in evidence which confirms the nature of recovered substance. Nothing is available on record which could establish that these witnesses deposed against
the appellant and implicated him in this case due to previous
enmity, grudge or malice or to fulfill some ulterior motive. The prosecution also successfully proved the safe deposit of the case property from the place of occurrence to the police station and from the police station to the office of Punjab Forensic Science Agency, Lahore by producing witnesses in support of this. Therefore, we are persuaded to hold that the appellant was rightly convicted by the learned trial Court. We, thus see no infirmity in the impugned judgment and as such, we find no ground or justification to warrant interference in the same.

13. So far as quantum of sentence awarded to the appellant is concerned, we have observed that the appellant suffered the rigors of a protracted trial. We have also observed that it seems likely that the appellant would have mended his conduct in these years. Learned counsel for the appellant on appellant's instructions, has earnestly and humbly prayed that the appellant may be given a chance to rehabilitate himself. Reliance is placed on case titled "State through Deputy Director (Law) Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLJ 2017 SC 660) Moreover, "Charas" is less harmful and dangerous a drug unlike other narcotics such as Heroin. As such, the case of the appellant calls for a lenient view. Guidance is sought from a judgment of august Supreme Court of Pakistan titled Abdul Rehman v. The State' (2011 SCMR 965), wherein it had been held that:

"After perusal of the record in the light of the arguments advanced before us, it appears that there is no previous
record of the conviction of the petitioner in any offence. The recovery effected is charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view."

In the case of 'Khuda Bakhsh v. The State' (2015 SCMR 735) the august Supreme Court of Pakistan had held as under:

"Charas unlike other narcotics such as heroin is less harmful and dangerous in the present case, keeping in mind the quantity (two kilograms), type of narcotic substance (charas) and as this was the appellant's first offence, the sentence of imprisonment for life awarded to the appellant appears to be excessive. The imprisonment for life or death is attracted when the threshold of ten kilograms (proviso to Section 9) is reached. Section 9(c) also provides for imprisonment for a term of up to fourteen years."

14. In view of above noted mitigating circumstances, we are persuaded to take a lenient view, as such, in the interest and for the safe administration of justice, the sentence already undergone by the appellant would be adequate in view of dictum laid down by the august Supreme Court of Pakistan in the case of "Niaz ud Din v. The State" (2007 SCMR 206), "Shaukat Ali alias Billa v. The State" (2015 SCMR 308) and "State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi" (PLD 2017 Supreme Court 671). Consequently, we, while maintaining the conviction of the appellant but taking into consideration the above mentioned mitigating circumstances, reduce the sentence of rigorous imprisonment from four years and six months to that of already undergone by the appellant (According to the report of the Superintendent of the Central Jail Rawalpindi dated 05.10.2020 the appellant has undergone one year six months and ten days of his sentence). However, the sentence of fine of Rs. 20,000/- to be paid by the appellant shall remain intact but the period of simple imprisonment, to be undergone by the appellant in default of payment of fine, is reduced from five months to fifteen days. Therefore, we while maintaining the conviction of the appellant recorded by the learned Additional Sessions Judge/Model Criminal Trial Court/Judge Special Court CNS, Rawalpindi vide judgment dated 27.09.2019, dismiss the instant Criminal Appeal No. 689 of 2019, with the above modification in the quantum of sentence.

15. The case property shall be dealt with as directed by the learned trial Court. The record of the learned trial Court be sent down immediately.

(A.A.K.)                                                                    Appeal dismissed.