PLJ 2024 Cr.C. (Note) 38
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ.
NIZAM DIN--Appellant
versus
STATE and another--Respondents
Crl. A. No. 353 of 2022, heard on 26.10.2022.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 29--Conviction and sentence--Challenge to--Allegation of--“Heroin” and “Charas” were recovered--Quantum of sentence--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 substances--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 narcotic substance 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--While maintaining while maintaining conviction of appellant but taking into consideration above mentioned mitigating circumstances, reduce sentence of rigorous imprisonment from eight years to that of rigorous imprisonment for three years--The punishment of fine of Rs. 30,000/-to be paid by appellant is maintained, however, period of simple imprisonment, to be undergone by appellant in default of payment of fine, is reduced from six months to two months--Therefore, Court while maintaining conviction of appellant recorded by Additional Sessions Judge (MCTC), Khanewal vide judgment dismiss instant Criminal Appeal with above modification in quantum of sentence awarded to appellant under Section 9 (c) of Control of Narcotic Substances Act, 1997--Appeal dismissed. [Para 12 & 14] A & C
PLJ 2017 SC 660.
Administration of Justice--
----Mitigating circumstances, Court is persuaded to take a lenient view, as such, in interest and for safe administration of justice, sentence of rigorous imprisonment for three years, would be adequate in view of dictum laid down by august Supreme Court of Pakistan.
[Para 14] B
2021 SCMR 1771, 2021 SCMR 109, 2015 SCMR 308, PLD 2017 SC 671 and PLJ 2017 SC 660.
Mr. Aftab Abbas Khan, Advocate for Appellant.
Malik Mudassar Ali, Deputy Prosecutor General for State.
Date of hearing: 26.10.2022.
Judgment
Sadiq Mahmud Khurram, J.--Nizam Din son of Usman (convict), was tried by the learned Additional Sessions Judge (MCTC), Khanewal in case F.I.R. No. 318 of 2021, dated 20.10.2021, registered at Police Station Makhdoompur, District Khanewal, in respect of an offence under Section 9(c) of Control of Narcotic Substances Act, 1997. The learned trial Court vide judgment dated 18.03.2022, convicted Nizam Din son of Usman (convict) and sentenced him as infra:-
Nizam Din son of Usman:-
Rigorous Imprisonment for eight years under Section 9(c) of Control of Narcotic Substances Act, 1997 and directed to pay fine of Rs. 30,000/-and in default of payment thereof to further undergo Simple Imprisonment for six months.
The convict was, however, extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898.
2. Feeling aggrieved, Nizam Din son of Usman (convict) lodged the instant Criminal Appeal No. 353 of 2022, assailing the judgment dated 18.03.2022, passed by the learned Additional Sessions Judge (MCTC), Khanewal, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 as mentioned above.
3. Precisely, the necessary facts of the case, as divulged through the statements of the prosecution witnesses, are that the appellant namely Nizam Din son of Usman was arrested on 20.10.2021 and one packet (P-1) having Heroin weighing 1000 grams and the second packet (P-2) having Charas weighing 1100 grams were recovered from his possession, which was taken into possession through recovery memo (Exh.PA).
4. On the above stated facts, case F.I.R. No. 318 of 2021 (Exh.PB/1), dated 20.10.2021, was registered at Police Station Makhdoompur, District Khanewal in respect of an offence under Section 9(c) of Control of Narcotic Substances Act, 1997.
5. After formal investigation of the case, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court and the appellant namely Nizam Din son of Usman was sent to face trial. The learned trial Court framed the charge against the accused on 23.12.2021 under Section 9(c) of the Control of Narcotic Substances Act, 1997. The accused 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 six witnesses examined. The prosecution got Muhammad Hussain, ASI Muhammad Abu Zar 674/C (PW-2) and Ghulam Abbas 1023/C (PW-5) examined as witnesses of recovery of the one packet (P-1) having Heroin weighing 1000 grams and the second packet (P-2) having Charas weighing 1100 grams from the possession of the appellant. Ghulam Sarwar 779/HC (PW-3) stated that on 20.10.2021 he got recorded the formal F.I.R. (Exh.PB/1) and on the same day, Muhammad Ijaz, SI (PW-6), the Investigating Officer of the case, handed over to him two sealed parcels said to contain samples drawn and separated from the recovered packets of “Heroin” and “Charas” and two sealed parcels said to contain the remaining recovered “Heroin” and “Charas” and on 22.10.2021, he handed over the two sealed parcels said to contain samples drawn and separated from the recovered “Heroin” and “Charas” to Muhammad Hussain, ASI (PW-1) for their onward transmission to the office of the Collection Centre, Punjab Forensic Science Agency, Multan. Muhammad Ijaz, ASI (PW-6) investigated the case from 20.10.2021 till the preparation of report under Section 173 of the Code of Criminal Procedure, 1898 and detailed the facts of his investigation in his statement before the learned trial Court.
7. On 15.03.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Khalid Abbas 79/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PD).
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 the question 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 subordinates of the complainant of the case. 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 the 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. The learned Deputy Prosecutor General has contended that the prosecution case is proved and the appeal merits dismissal.
11. We have thoroughly considered the respective arguments of the learned counsel for the appellant, the learned Deputy Prosecutor General 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 the recovery of one packet (P-1) having Heroin weighing 1000 grams and the second packet (P-2) having Charas weighing 1100 grams from the possession of the appellant. Muhammad Hussain, ASI (PW-1), Muhammad Abu Zar 674/C (PW-2) and Ghulam Abbas 1023/C (PW-5) were examined as witnesses of recovery of the one packet (P-1) having Heroin weighing 1000 grams and the second packet (P-2) having Charas weighing 1100 grams, from the appellant who 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 packets of “Heroin” and “Charas”“ were duly exhibited in their evidence as P-1 and P-2 respectively which were taken into possession through recovery memo (Exh.PA). All the three prosecution witnesses namely Muhammad Hussain, ASI (PW-1), Muhammad Abu Zar 674/C (PW-2) and Ghulam Abbas 1023/C (PW-5) gave 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.PD) was also tendered in evidence which confirms the nature of recovered substances. 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 narcotic substance from the place of occurrence to the police station and from the police station to the office of the 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.
13. So far as quantum of sentence awarded to the appellant is concerned, we have observed that this was his first conviction. We have also noticed that the appellant suffered the rigours of a trial. We have also noticed that the appellant was the only source of livelihood for his family at the time of his arrest. We have also observed that it seems likely that the appellant would have mended his conduct in this period. 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 has been placed on case titled “State through Deputy Director (Law) Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi” (PLJ 2017 SC 660).
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 of rigorous imprisonment for three years, would be adequate in view of the dictum laid down by the august Supreme Court of Pakistan in the cases of “Naseem Khan v. The State” (2021 SCMR 1771), My Sughran versus State (2021 SCMR 109)”Niaz ud Din v. The State” (200 SCMR 206), “Shaukat Ali alias Billa v. The State” (2015 SCMR 308), “State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi” (PLD 2017 Supreme Court 671) and “State through Deputy Director (Law) Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi” (PLJ 2017 SC 660). 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 eight years to that of rigorous imprisonment for three years. The punishment of fine of Rs. 30,000/-to be paid by the appellant is maintained, however, the period of simple imprisonment, to be undergone by the appellant in default of payment of fine, is reduced from six months to two months. Therefore, we, while maintaining the conviction of the appellant recorded by the learned Additional Sessions Judge (MCTC), Khanewal vide judgment dated 18.03.2022, dismiss the instant Criminal Appeal No. 353 of 2022, with the above modification in the quantum of sentence awarded to the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997.
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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