PLJ 2023 Cr.C. (Note) 35
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of charas garda--Modification in quantum of sentence--So far as quantum if sentence awarded to appellant is concerned, that appellant suffered rigours 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--In interest and for safe administration of justice, sentence already undergone by appellant would be adequate in view of dictum laid down by august Supreme Court of Pakistan--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--Appeal dismissed. [Para 13 & 14] B, D & E
PLJ 2017 SC 660, 2007 SCMR 206, 2015 SCMR 308 &
PLD 2017 SC 671.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 29--Burden of proof--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. [Para 12] A
Charas--
----Harmful and dangerous drug--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. [Para 13] C
2011 SCMR 965 & 2015 SCMR 735.
Ms. Farzana Mumtaz, Advocate. (Learned Defence Counsel appointed on State expense) for Appellant
Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General for State.
Date of hearing: 12.11.2020.
PLJ 2023 Cr.C. (Note) 35
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram JJ.
MALANG KHAN--Appellant
versus
STATE --Respondent
Crl. A. No. 285 of 2015, heard on 12.11.2020.
Judgment
Sadiq Mahmud Khurram, J.--The appellant namely Malang Khan son of Ali Muhammad was tried by the learned Additional Sessions Judge Rawalpindi in case FIR No. 382 of 2013, dated 07.08.2013, 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 22.06.2015, convicted the appellant namely Malang Khan son of Ali Muhammad and sentenced him as infra:
Malang Khan son of Ali Muhammad
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 Malang Khan son of Ali Muhammad (convict) lodged the instant Criminal Appeal No. 285 of 2015 assailing his conviction and sentence.
3. Precisely, the necessary facts of the prosecution case are that on 07.08.2013, the appellant was apprehended and 2010 grams of "Charas Garda" (Ex.P-1) was recovered from his possession which was taken into possession through recovery memo (Exh.PC).
4. On the above stated facts FIR No. 382 of 2013 (Exh. PB), dated 07.08.2013, 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 24.09.2013 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 Waqar Ali 6562/HC (PW-4) and Muhammad Imran Abbas S.I. (PW-5) examined as witnesses of recovery of the "Charas Garda" (P-1) from the appellant. Riaz Hussain S.I. (PW-1) stated that he recorded the formal FIR (Exh. PA) on 07.08.2013. Muhammad Bashir 516/HC (PW-2) stated that on 07.08.2013, he received two parcels said to contain "Charas Garda" from the Investigating Officer and on 28.08.2013, he handed over one sealed parcel said to contain sample drawn from the recovered "Charas Garda" to Muhammad Raeef 4912/C (PW-3) for its onward transmission to the office of the Chemical Examiner to Government of the Punjab, Rawalpindi.
7. On 11.04.2015, the learned Deputy District Public Prosecutor gave up PW Khawar Ali 6400/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Chemical Examiner to Government of the Punjab, Rawalpindi (Exh. PE).
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 2010 grams of "Charas Garda" (P-1) from the possession of the appellant. We have also noted that Waqar Ali 6562/HC (PW-4) and Muhammad Imran Abbas S.I. (PW-5) were examined as witnesses of recovery of the "Charas Garda" (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 Garda" was duly exhibited in their evidence as Exh.P-1 which was taken into possession through recovery memo (Exh. PC). 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 the Chemical Examiner to Government of the Punjab, Rawalpindi (Exh. PE) was also tendered in evidence which confirms the nature of recovered substance. Nothing a 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 the Chemical Examiner to Government of the Punjab, Rawalpindi 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 rigours 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 Superintendent Central Jail Rawalpindi dated 28.7.2015 the appellant has undergone two years four months and twenty eight 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 Rawalpindi vide judgment dated 22.06.2022 15, dismiss the instant Crl. Appeal No. 285 of 2015, 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
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