PLJ 2021 Cr.C. 1413 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 48--Conviction and sentence--Challenge to--Recovery of charas--Benefit of extenuating circumstances--On basis of reliable/trustworthy evidence, available on record, prosecution has succeeded in proving that appellant’s firm (Noor Haq & Company) was hired for purpose of export of consignment in question and all relevant documents such as, Goods Declaration Forms, Packing Invoices, Undertaking of Company, Application for Export Approval/Import Authorization, Certificates of Origin, Declaration Form furnished by Exporter, Air Waybill also relate to said company--Both material witnesses i.e. PW-3 and PW-4 belonged to Anti-Narcotics Force who remained consistent on all relevant facts of this case and no significant contradiction in their statements has come on record--A positive report was received from Chemical Examiner in response to sixteen sample parcels of heroin sent for chemical analysis--Trial Court, after considering all pros and cons of matter, has delivered a well-reasoned judgment while holding appellant guilty of charge and discarding defence plea being not substantiated through cogent evidence--However, as regards question of sentence of appellant, we have been persuaded to reduce his sentence keeping in view facts that no previous criminal history of appellant has been brought record, hence he is deemed to be first offender warranting lessor sentence--Held: It is well settled by now that benefit of an extenuating circumstance should be considered while deciding question of sentence of a convict--Appeal was dismissed. [P. 1415] A & B
2014 SCMR 1034.
M/s. Khawaja Muhammad Ajmal and Naveed Afzal Basraa, Advocates for Appellant.
Mr. Zafar Iqbal Chohan, Special Prosecutor for A.N.F for State.
Date of hearing: 7.6.2021.
PLJ 2021 Cr.C. 1413 (DB)
[Lahore High Court, Lahore]
Present: Anwaarul Haq Pannun and Muhammad Amjad Rafiq, JJ.
NOOR ELAHI--Appellant
versus
STATE--Respondent
Crl. A. No. 682 & C.S.R. No. 30-N of 2015, heard on 7.6.2021.
Judgment
Anwaarul Haq Pannun, J.--The appellant faced trial in case F.I.R No. 01/2011 dated 16.08.2011, in respect of an offence under Sections 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station A.N.F. Lahore. According to the prosecution’s case, upon receiving a spy information that a gang of drug peddlers would try to smuggle huge quantity of heroin, the consignment consisting of 16 iron boxes containing stones booked by the appellant was checked by A.N.F officials at P.I.A Cargo Area of Allama Iqbal International Airport, Lahore and from that consignment, heroin concealed in stones weighing 46.800 kilograms was recovered.
2. After framing of formal charge against the accused/ appellant, to which he pleaded not guilty and claimed trial, the prosecution examined four witnesses to prove charge against the appellant. Ghulam Hussain, HC (PW-1) chalked out the formal FIR in this case, he was also handed over the case property for safe custody in Malkhana and onward transmission of sample parcels of heroin to the office of Chemical Examiner. Asif Iqbal, Constable (PW-2) deposited the sample parcels of heroin in the office of Chemical Examiner. Ahmad Aftab, Constable (PW-3) is the witness of recovery memos. Azhar Hamesh, Inspector (PW-4) is the complainant/Investigating Officer of this case. The documentary evidence was produced by the prosecution in the shape of memo of possession of heroin (Ex.PB), memo of possession of consignment documents (Ex.PC), memo of personal search (Ex.PD), memo of possession of car (Ex.PE), memo of possession of motorcycle (Ex.PF), report of Chemical Examiner (Ex.PJ) and site plan (Ex.PH). Statement of the accused under Section 342, Cr.P.C. was recorded, wherein he while professing his innocence and false involvement in this case, had refuted all the allegations levelled against him. The accused/appellant neither opted to appear as his own witness under Section 340(2), Cr.P.C. nor produced any defence evidence.
3. On conclusion of trial, the learned Judge Special Court CNS/Additional Sessions Judge, Lahore, vide his judgment dated 06.4.2015 has convicted the appellant under Section 9(c) of CNS.A, 1997 and sentenced him to death along with a fine of Rs. 5,00,000/- and in default of payment of fine to undergo two years R.I. The titled appeal of the convict (Criminal Appeal No. 682 of 2015) and the case submitted by the learned trial Court (Capital Sentence Reference No. 30-N of 2015) for confirmation or otherwise of the death sentence, are being disposed of through this single judgment.
4. Heard. Record perused.
5. We have noted that on the basis of reliable/trustworthy evidence, available on record, the prosecution has succeeded in proving that the appellant’s firm (Noor Haq & Company) was hired for the purpose of export of the consignment in question and all the relevant documents such as, Goods Declaration Forms, Packing Invoices, Undertaking of the Company, Application for Export Approval/Import Authorization, Certificates of Origin, Declaration Form furnished by the Exporter, Air Waybill (P2/1-38) also relate to the said company. Both the material witnesses i.e. PW-3 and PW-4 belonged to Anti-Narcotics Force who remained consistent on all the relevant facts of this case and no significant contradiction in their statements has come on the record. A positive report (Ex.PJ) was received from the Chemical Examiner in response to sixteen sample parcels of heroin sent for chemical analysis. We find that the learned trial Court, after considering all pros and cons of the matter, has delivered a well-reasoned judgment while holding the appellant guilty of the charge and discarding the defence plea being not substantiated through cogent evidence.
6. However, as regards the question of sentence of the appellant, we have been persuaded to reduce his sentence keeping in view the facts that no previous criminal history of the appellant has been brought on the record, hence he is deemed to be the first offender warranting lessor sentence. It is well settled by now that benefit of an extenuating circumstance should be considered while deciding the question of sentence of a convict. Reliance is placed on the dictum reported as Ghulam Mohy-ud-Din alias Haji Babu and others vs. The State (2014 SCMR 1034).
7. Therefore, while maintaining the conviction of the appellant (Noor Elahi s/o Fateh Muhammad) under Section 9(c) of the Control of Narcotic Substances Act, 1997, his sentence is altered from death to Imprisonment for Life with the benefit of Section 382-B, Cr.P.C., but the penalty of fine of Rs. 500,000/- and the sentence in default thereof awarded to him by the learned trial Court are maintained. With the above modification in the quantum of sentence, Criminal Appeal No. 682 of 2015 is dismissed.
8. Death sentence of the convict Noor Elahi is not confirmed and Capital Sentence Reference No. 30-N of 2015 is answered in the Negative.
(A.A.K.) Appeal dismissed
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