PLJ 2023 Cr.C. (Note) 271
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 231365 of 2018, heard on 30.9.2021.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Allegation of--Recovery of charas--As such, it appears that appellant has undergone major portion of her sentence coupled with fact that appellant is first offender as no report/record whatsoever has been produced to show that appellant is previously convicted or involved in cases of similar nature, therefore, case of appellant calls for a lenient view--While considering fact that contraband attributed by prosecution to accused-lady being not in excess of 10-kg has reduced sentence of accused to period already undergone by her--W hen there is no challenge to vires of judgment qua recording of conviction of appellant, we, being persuaded with contention of counsel for appellant which is supported from record as well as case law reproduced above, we think it appropriate that ends of justice will be served by maintaining conviction off appellant, but reducing her sentence to period already undergone by her--However, amount of fine and sentence a in default thereof will remain intact--Benefit of Section 382-B, Cr.P.C. shall remain intact--With this modification, instant appeal is hereby dismissed.
[Para 8 & 9] A, B & C
2011 SCMR 965 & 2021 SCMR 109.
Mr. Nasir Mahboob Tiwana, Advocate for Appellant.
Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.
Date of hearing: 30.9.2021.
Judgment
Sardar Muhammad Sarfraz Dogar, J.--Convict Mst. Sonia daughter of Amanat Ali (appellant herein) was tried by the learned Additional Sessions Judge/Judge Special Court (CNS), Sargodha in case FIR No. 303/2017, dated 6.7.2017, registered with the Police Station City Sargodha, in respect of an offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 (hereinafter referred as “C.N.S.A., 1997”) and the learned trial Court seized with the matter in terms of judgment dated 11.07.2018, convicted the appellant under Section 9(c) of “CNSA, 1997” and sentenced her to undergo Simple Imprisonment for eight years with a direction to pay Rs. 1,00,000/- as fine and in case of default thereof, to further undergo Simple Imprisonment for eight months. Benefit of Section 382-B, Cr.P.C. was also bestowed upon her.
2. Being aggrieved by the above-said conviction and sentence, the appellant has preferred the captioned appeal which is being disposed of through this judgment.
3 The contrite story as demystified by complainant Amara Akram, TSI (PW2) in complaint (Ex.PA) as well as FIR (Ex.PA/1) is that on 6.7.2017 at 7.00 a.m., the complainant along with other police officials was present at Patha Mandi Chowk in connection with patrolling duty and to arrest the drug peddlers, where she received spy information that the accused Mst. Sonia, a notorious drug peddler was waiting for transport at Mission School Road near the gate of Mission School and she could be arrested, if raid be conducted. On that spy information, the complainant (PW2) with raiding party and informer reached at the alleged place at 7.10 a.m. The accused was pointed out by the informer. The accused appearing to have heavy shoppers in her both hands, standing at the side of the road, on seeing the police party started running. The accused was caught with the help of Rabia Amanat 2040/LC not produced) and other members of the raiding party. The accused was searched through lady constable and from a shopper in the right hand of the accused, wrapped in a plastic envelope, heroin weighing 7130 grams (P1) and from the white coloured shopper holding by her in left hand, a white coloured computerized scale (P2), an electronic machine, for checking currency notes (P3), a packing machine (P4), 20 white coloured shopper (P-5/1-20) raqam watak Rs. 8260/- (P6) with the denomination of 05 currency notes of Rs. 1000/- each (P-7/1-5), 04 currency notes of Rs. 500/- each (P-8/1-4), 08 currency notes of Rs. 100/- (P-9/1-8) and 15 currency notes of Rs. 20/- (each (P-10/1-20) and 16 currency notes of Rs. 10/- each (P-11/1-16) got recovered. Out of the recovered heroin 357 grams was separated for chemical analysis and sealed parcels with the monogram of MI were prepared. The recovered heroin was taken into possession through recovery memo. (Ex. PB, whereas weighing machine (P2), one electronic machine for checking currency notes (P3), packing machine (P4), 20 shoppers (P-5/1-20), sale proceeds Rs. 8260/- (P6) with the denomination of five currency notes of RS. 1000/- each (P-7/15), four currency notes of Rs. 500/- each (P-8/1-4), eight currency notes of Rs. 100/- each (P-9/1-8), 15 currency notes of Rs. 20/- each (P-10-/1-20) and 16 currency notes of Rs. 10/ each (P-11/1-16) were taken into possession through recovery memo. (Ex. PC).
4 After culmination of investigation, report u/S. 173, Cr.P.C. was prepared and submitted in the concerned Court of competent jurisdiction for trial and the learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which she pleaded not guilty and claimed trial.
5 In order to prove the charge against the appellant, prosecution examined five witnesses and also tendered certain documents. On completion of prosecution evidence, statement of the appellant was recorded under Section 342 of “Cr.P.C.” through which she denied all the allegations levelled against her and professed her innocence. Neither the appellant had opted to record her statement under Section 340 (2) of “Cr.P.C.” nor she produced any defence evidence. On culmination of trial, the appellant was convicted by way of impugned judgment as is referred here-in-above.
6. Learned counsel for the appellant after arguing the appeal on merits by tooth and nail made an alternate prayer at the end of his arguments that if this Court is not persuaded to acquit the appellant then he would not press the instant appeal on merits and would only pray for reduction of quantum of sentence upto the period of incarceration already underwent by the appellant. It has been added that appellant having no criminal antecedents is first offender and faced the agony of prosecution since registration of case, coupled with the fact that the quantity of recovered contraband was less than 10-kg, thus, the sentence imposed by the learned trial Court upon the appellant appears to be harsh one, which may be reduced to the period already undergone by the appellant. Reliance in this regard is placed on “Mst. Sughran and another vs. The State” (2021 SCMR 109).
7. Learned Deputy Prosecutor General for the State did not seriously oppose the prayer so made by the learned counsel for the appellant.
8. Since, the learned counsel for the appellant has not challenged the conviction and sentence of the appellant and only prays for the reduction of sentence as has already undergone by the appellant, so without dilating upon the merits of the case, it has been straightaway noticed that as per report submitted by the Superintendent District Jail, Faisalabad dated 05.04.2021, the appellant as on the said date, had remained under-trial prisoner for about 1 year and five months. Till then, the substantive period of sentence of the appellant was two years eight months and 25 days and she earned remissions of two months whereas the unexpired portion of her sentence was four years and one month. As such, it appears that the appellant has undergone major portion of her sentence coupled with the fact that the appellant is the first offender as no report/record whatsoever has been produced to show that the appellant is previously convicted or involved in cases of similar nature, therefore, the case of the appellant calls for a lenient view. Wisdom is sought from the judgment of Hon’ble Supreme Court of Pakistan in a case titled, “Abdul Rehman v. The State” (2011 SCMR 965), wherein it has been held infra:
“After perusal of the record in 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 in Charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view.”
Furthermore, the Hon’ble Supreme Court of Pakistan in the case reported as Mst. Sughran and another versus The State” (2021 SCMR 109), while considering the fact that the contraband attributed by the prosecution to the accused-lady being not in excess of 10-kg has reduced the sentence of the accused to the period already undergone by her. The relevant paragraph for the sake of ready reference is reproduced as under:
“A considerable cache of contraband, nonetheless, attributed by the prosecution to the appellant, being not in excess of 10-kg, brings her case out of the barriers of statutory sealing of lowest mandated sentence and, thus, for reasons valid and just, her plea for reduction of sentence can be visited thoughtfully; her apparent status of a hapless carrier has not seriously been controverted by the learned Law Officer who otherwise, nonetheless, faithfully defended the impugned judgment and opposed the reduction of sentence in view of the grace already shown by the High Court.”
9. Thus in view of stance taken by learned counsel for the appellant when there is no challenge to the vires of judgment qua recording of conviction of the appellant, we, being persuaded with the contention of learned counsel for the appellant which is supported from the record as well as the case law reproduced above, we think it appropriate that the ends of justice will be served by maintaining the conviction of the appellant, but reducing her sentence to the period already undergone by her. However, the amount of fine and sentence a in default thereof will remain intact. Benefit of Section 382-B, Cr.P.C. shall remain intact. With this modification, instant appeal is hereby dismissed.
(A.A.K.) Appeal dismissed
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