- سزا میں ترمیم - سزا میں کمی - استغاثہ نے اپنا مقدمہ بخوبی ثابت کیا ہے ، تمام قیدی نہ صرف تفتیش کے دوران بلکہ ٹرائل کورٹ کے سامنے بھی ثابت قدم رہے ، وقت ، جگہ ، طریقہ کار اور..............

 PLJ 2024 Cr.C. (Note) 223
[Lahore High Court, Lahore]
Present: Muhammad Waheed Khan and Miss aalia Neelum, JJ.
MUZAFFAR alias MODI--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 69148 of 2020, heard on 12.4.2022.

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

----S. 9(c)-

1055

گرام چرس برآمد کی گئی - سزا کی سزا - سزا میں ترمیم - سزا میں ترمیم - سزا میں کمی - استغاثہ نے اپنا مقدمہ بخوبی ثابت کیا ہے ، تمام قیدی نہ صرف تفتیش کے دوران بلکہ ٹرائل کورٹ کے سامنے بھی ثابت قدم رہے ، وقت ، جگہ ، طریقہ کار اور درخواست گزار کے قبضے سے ممنوعہ اشیاء کی بازیابی - وہ جرح کی جانچ کے لئے بھی کامیابی سے کھڑے رہے اور دفاع کے وکیل کی بہترین کوششوں کے باوجود ، ان کے ثبوتوں کی اندرونی اہمیت کو ختم نہیں کیا جا سکتا- اپیل گزار پہلے ہی اپنی کل سزا میں سے ایک سال، دس ماہ اور دس دن یعنی چار سال، چھ ماہ اور اس کی رہائی کی ممکنہ تاریخ 27.09.2024 درج کی گئی ہے، اگر جرمانہ ادا کیا جاتا ہے - ریکارڈ پر ایسا کچھ بھی دستیاب نہیں ہے جس سے یہ ظاہر ہو کہ اپیل کنندہ سابق مجرم ہے - وہ صرف اپنے خاندان کا روٹی کمانے والا ہے اور وہ پہلے ہی تفتیش کی اذیت اور سختی کا سامنا کر چکا ہے۔ ٹرائل کورٹ سے پہلے ٹرائل - ٹرائل کورٹ کی طرف سے اپیل کنندہ کو دی گئی سزا کی مقدار میں کمی ، لہذا ، کیس کے ان تمام پہلوؤں کو مدنظر رکھتے ہوئے ، ہماری رائے ہے کہ انصاف کا مفاد پورا ہوگا ، اگر اپیل کنندہ کی سزا کو کم کرکے اس تک کم کردیا جائے جو وہ پہلے ہی گزر چکا ہے - لہذا ، سی این ایس اے کے 9 (سی) کے تحت اپیل کنندہ کی سزا کو برقرار رکھتے ہوئے ، 1997 ء میں ان کی سزا کو چار سال چھ ماہ کی قید بامشقت سے کم کر دیا گیا۔

-1055 grams charas were recovered--Conviction of sentence--Challenge to--Modification in sentence--Reduction in sentence--The prosecution has ably proved its case, all PWs remained consistent not only during course of investigation but also before trial Court qua time, place, mode and manner of occurrence and recovery of contraband from possession of appellant--They also stood successfully to test of cross-examination and despite best efforts made by defence counsel, intrinsic value of their evidence could not be uprooted--Appellant has already served out one year, ten months and ten days, out of his total sentence i.e. four years, six months and probable date of his release has been mentioned as 27.09.2024, if fine is paid--Nothing is available on record to show that appellant is a previous convict--He is only bread winner of his family and he has already faced agony and rigour of investigation and trial before learned trial Court--Reduction of quantum of sentence awarded to appellant by trial Court, therefore, considering all these aspects of case, we are of opinion that interest of justice will be met, if sentence of appellant is reduced to one which he has already undergone--So, while maintaining conviction of appellant u/S. 9 (c) of CNSA, 1997, his sentence is reduced from four years and six months Rigorous Imprisonment, to which he has already undergone--Appeal dismissed.                    [Para 6, 7 & 8] A, B & C

2011 SCMR 965 & 2015 SCMR 735.

Mr. Muhammad Habib Ullah Bhatti, Advocate for Appellant.

Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for Complainant/ State.

            Date of hearing 12.4.2022.

Judgment

Muhammad Waheed Khan, J.--Through the instant appeal, appellant has challenged conviction and sentence awarded to him by the learned Addl. Sessions Judge/Judge Special Court CNS, AhmadpurSial, vide judgment dated 04.12.2020 in case FIR No. 206 dated 01.06.2019 registered u/S. 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Garh Maharaja, whereby on conclusion of trial, learned trial Court convicted the appellant u/S. 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced him to four years and six Months rigorous imprisonment alongwith fine of Rs. 20.000/-, in default thereof, to further undergo five months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. Precisely, the prosecution story as per contents of FIR is that on 01.06.2019 at about 08.50 a.m., when complainant Muhammad Ajmal SI (PW-2) alongwith other police officials was present at Adda Hassu Blail in connection with routine patrol duty, on suspicision, they, apprehended the appellant who held a shopper in his right hand and on search of the said shopper charas weighing 1055 grams was recovered. On further search, sale proceeds of Rs. 2350/-was also recovered from his possession, hence, this case.

3. After registration of case, police investigated the matter and submitted report u/S. 173, Cr.P.C. before the learned trial Court by declaring the appellant as guilty. Learned trial Court after completing codal formalities, framed charge against the appellant, which was denied by him, so, the prosecution evidence was summoned. In order to prove the charge against the appellant, the prosecution produced as many as four witnesses. Mumtaz Ahmad 1760/HC, who chalked out the FIR and Moharrar of the Police Station appeared as PW-1. Muhammad Ajmal SI, complainant of the case appeared as PW-2, Fakhar Abbas 296/C, witness of recovery appeared as PW-3 and Zafar Ali Investigating Officer of the case appeared as PW-4. The prosecution after producing report of Punjab Forensic Science Agency (Ex-PE) closed its evidence. The appellant was examined u/S. 342, Cr.P.C., wherein he denied all the allegations leveled against him. He neither opted to appear u/S. 340(2), Cr.P.C. as his own witness, nor produced any evidence in his defence.

4. During the course of arguments, learned counsel for the appellant submits that he does not press this appeal on merits as the appellant has already served out substantial portion of his sentence and prayed that sentence of the appellant may be reduced to the period, which has already undergone by him. On the other hand, learned Deputy Prosecutor General has submitted that as far as conviction of appellant is not disturbed, he has not much to say qua the reduction in sentence as discretion in this regard exclusively lies with the Court.

5. Arguments heard. Record perused.

6. As the learned counsel for the appellant has opted not to assail the conviction awarded by the learned trial Court against the appellant, therefore, we do not feel it necessary to discuss the prosecution evidence in detail. However, we find that the prosecution has ably proved its case, all the PWs remained consistent not only during the course of investigation but also before the learned trial Court qua the time, place, mode and manner of occurrence and recovery of contraband from the possession of the appellant. They also stood successfully to the test of cross-examination and despite best efforts made by the learned defence counsel, intrinsic value of their evidence could not be uprooted. The report of Punjab Forensic Science Agency (Ex-PE) also confirmed the narcotics characters of the recovered contraband and nothing is available on record that there is any broken link qua the safe custody of parcels and its onward transmission to the Punjab Forensic Science Agency (PFSA) and in the Court.

7. During the pendency of this appeal, a report was requisitioned from the Superintendent District Jail, Jhang. Which is available on record, according to which, appellant has already served out one year, ten months and ten days, out of his total sentence i.e. four years, six months and probable date of his release has been mentioned as 27.09.2024, if the fine is paid. Nothing is available on record to show that the appellant is a previous convict. He is the only bread winner of his family and he has already faced the agony and rigour of investigation and trial before the learned trial Court. Therefore, the case of the appellant calls a lenient view in the light of judgment passed by the august Supreme Court of Pakistan in case titled as “Abdul Rehman v. The State” (2011 SCMR 965), wherein it had been held that;-

“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 is Charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view.”

In another case of “Khuda Bakhsh v. The State” (2015 SCMR 735), the august Supreme Court of Pakistan had held that:

“Charas unlike other narcotics such as hereoin 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 ....”

8. Since, learned counsel for the appellant has not pressed this appeal on merits and prayed for reduction of quantum of sentence awarded to the appellant by the learned trial Court, therefore, considering all these aspects of the case, we are of the opinion that interest of justice will be met, if sentence of the appellant is reduced to the one which he has already undergone.. So, while maintaining the conviction of the appellant under Section 9 (c) of CNSA, 1997, his sentence is reduced from four years and six months Rigorous Imprisonment, to which he has already undergone. However, sentence of fine and in default whereof shall remain intact. Benefit of Section 382-B, Cr.P.C. is extended to him.

9. With the above said modification in the impugned judgment, this criminal appeal is dismissed.

(A.A.K.)          Appeal dismissed