2023 P Cr. L J 1619
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
ALI SHER ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 63 of 2022, decided on 16th June, 2023.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 48 [as amended by the Control of Narcotic Substances (Amendment) Act,
2022] --- Constitution of Pakistan, Art. 12--- Possession of 3000 grams of charas ---Conviction
and sentence as per (Amending Act) ---Retrospective effect ---Scope ---Trial Court convicted
and sentenced the appellant/accused under S. 9(c) of CNSA, 1997, to suffer nine years' rigorous imprisonment with a fine of Rs. 80,000 as per the new scheme of penalties inserted by the Control of Narcotic Substances (Amendment) Act, 2022---Validity ---New scheme of
penalties under Control of Narcotic Substances (Amendment) Act, 2022 ('the Amending Act 2022') had provided that when the quantity of Charas weighed 1000- grams to 4999- grams ,
the imprisonment might extend to fourteen years which would not be less than nine years
along with a fine up to Rs. 400,000 but not less than Rs. 80,000---Trial Court had misconceived and mis -interpreted the Amending Act, 2022 as the amendment was
promulgated after about three months of offence having been commitment in the present case , therefore, new amendment could not be applied and enforced retrospectively; and the sentence awarded by the Trial Court was in utter violation of Art. 12 of the Constitution---High Court observed that the sentence awarded to the appellant, being a first offender, was harsh , who had no previous criminal record, therefore, the appellant deserved leniency---Impugned judgment was modified by reducing the sentence of the appellant from nine years to three years and the fine of Rs. 80,000 to Rs. 30,000 with the premium of 382- B of
Criminal Procedure Code, 1898---Appeal was partly allowed, in circumstances.
State v. Sultan Ahmed PLD 2007 SC 48; Asghar Ali v. State 1986 PCr.LJ 1953 and
Arshad Mehmood v. The Government of Pakistan PLD 1998 Lah. 152 ref.
Nisar Hussain Mastoi for Appellant.
Habibullah Gul, Additional Prosecutor General for the State.
Date of hearing: 29th May, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Appellant Ali Shair has put in the captioned
appeal to assail the judgment dated 26.09.2022 ("impugned judgment") rendered by learned
Special Judge constituted under the Control of Narcotic Substances Act, 1997- Additional
Sessions Judge -I Hub ("Trial Court"), whereby, he was convicted and sentenced under
section 9(c) of The Control of Narcotic Substances Act, 1997 ("Act of 1997") to suffer nine
years RI with a fine of Rs.80,000/ - or in default to further suffer for a period of six months'
SI, extending the premium of section 382- B of Criminal Procedure Code, 1898 ("Cr.P.C.") in
a case vide FIR No.198 of 2022 (Ex.P/4- A) registered within the remits of police station Hub
City, by complainant SI Abdul Wahab (PW -1) against the appellant for possessing 3000-
grams of charas recovered from a polythene bag held by the appellant.
2. After necessary investigation, the appellant was sent up to the Trial Court to face
deeds of his culpability, where on commencement of the trial, the appellant entered the plea
of denial, thus, the prosecution in order to bring home the charge, produced as many as four witnesses, and after close of the prosecution side, the appellant refuted the allegations so brought and confronted with the allegations as envisaged under section 342 of Cr.P.C., whereafter, the appellant neither stepped into the witness box to depose on oath nor produced any evidence in his defence, hence on conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in the para supra.
3. Learned counsel for the appellant inter alia contended that the impugned judgment
deserves to be set at naught as the same is result of misreading of evidence. Added further that learned trial judge has failed to appreciate the evidence in its true perspective, particularly, failure of the prosecution to establish safe custody and transmission of the contraband, but the Trial Court did not consider such essential aspect of the case and has drawn its conclusion contrary to the evidence, which has made the impugned judgment a
nullity in the eyes of law, as such, prayed to allow the appeal and acquit the appellant.
Conversely, learned APG vigorously resisted the arguments advanced by the counsel
for the appellant and urged that the Trial Court has well appreciated the evidence on record, which does not call for interference. He augmented his arguments that the safe custody and
transmission has also been proved beyond any shadow of doubt, which does not in any manner vitiate the trial and as such requested for dismissal of the appeal.
4. Heard. Record sussed out.
5. Complainant SI Abdul Wahab (PW -1) reiterated what he had reported in FIR (Ex.P/1-
A). According to him, on 12.06.2022 at 4:45 p.m., he was on patrol duty along with other police officials and when they reached at Balochabad Hub, they saw a person in the street, who while seeing the police party tried to escape but was apprehended. He was searched holding a polythene sack, wherein three packets of charas, each containing 1000- grams, total
weighing 3000 -grams were recovered from the appellant, which were taken into possession
through recovery memo (Ex.P/2 -B), 10 -grams of charas from each packet was separated for
chemical analysis and sealed in parcel Nos. 1 to 3. He was cross -examined at length but no
favourable answer could be extracted.
Recovery witness Karamullah Constable (PW -2) came up with a similar story as
narrated by SI Abdul Wahab (PW -1) regarding recovery of the aforesaid narcotics from the
possession of the appellant, which was taken into possession through recovery memo
(Ex.P/2 -B). He produced memo of arrest as Ex.P/2 -A and recovery memo of charas as
Ex.P/2- B. He produced sealed parcel No.4 as Art.P/1, sample of narco as Art.P/2 and 3 -
packes of charas as Art.P/1. His testimony was not shaken by the defence during cross -
examination. He remained firm and consistent to his examination -in-chief.
6. Both the above witnesses have proved the recovery of narcotics from the possession
and control of the appellant without any doubt.
7. The prosecution to substantiate the safe custody and transmission produced
Inayatullah ASI (PW -3) Malkhana in- charge. According to him, on 12.06.2022 SI Abdul
Majeed IO (PW- 4) handed over parcel Nos.1 to 4, whereof he made entry in Register No.19
for onward transmission and on 14.06.2022 he sent the sealed parcel Nos.1 to 3 to the office of Director Laboratories and Chemical Examiner, Government of Sindh Karachi for chemical analysis and received the FSL report (Ex.P/4 -D) on 27.06.2022. During cross -examination,
he replied that he handed over parcels of samples for chemical analysis to Abdul Majeed IO (PW -4). Statement of IO (PW -4) has been analyzed, which has been found by us to be
consistent with the deposition of complainant (PW -1), recovery witness (PW- 2) and
Malkhana in -charge (PW- 3).
8. After critical analysis, we have arrived at a conclusion without any doubt in mind that
the prosecution has successfully proved the case to the hilt. The evidence on record has rightly been appreciated by the Trial Court while drawing the judgment impugned herein, suffering from no error of fact, except the quantum of sentence.
9. The Trial Court has misconceived and misinterpreted the Control of Narcotic
Substances (Amendment) Act 2022 ("Act of 2022") promulgated on 06.09.2022, whereby the appellant was convicted and sentenced under the new scheme of penalties inserted therein, which provides that when the quantity of charas exceeds 1000- grams to 4999- grams, the
imprisonment may extend to fourteen years and it shall not be less than nine years along with a fine, which may be up to Rs.400,000/ - but not less than Rs.80,000/ -. As the amendment
was brought on 06.09.2022 and the offence was committed on 12.06.2022 prior to the promulgation of the amendment, therefore, the newly inserted amendment made through the Act of 2022 could not be retrospectively applied and enforced, as such, the sentence awarded by the Trial Court is in utter violation of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, the judgments of the apex Courts as well the High Courts. For ease of reference, Article 12 of the Constitution is reproduced hereunder;
"12. (1) No law shall authorize the punishment of a person
(a) for an act or commission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts or
abrogation or subversion of a Constitution in force in Pakistan at any time since the
twenty -third day of march, one thousand nine hundred and fifty- six, an offence."
10. The Hon'ble Supreme Court of Pakistan in the case of 'State v. Sultan Ahmed' (PLD
2007 SC 48) held that an offence inserted through amendment cannot be enforced retrospectively to cover the occurrence which has taken much earlier. Similarly, the High Court of Karachi (Sindh) in case of 'Asghar Ali v. State' (1986 PCr.LJ 1953) observed that the offences in respect of Banks (Special Courts) Ordinance (IX of 1984) with regard to minimum punishment would not apply with retrospective effect. The Lahore High Court in the case of 'Arshad Mehmood v. The Government of Pakistan' (PLD 1998 Lahore 152)
reiterated the aforesaid dictum and held that the laws containing penalty and liability cannot
be retrospectively enforced and that any act once not an offence, cannot be taken as offence
by law promulgated later on.
11. Keeping in view the legality of the sentence discussed hereinabove and considering
the peculiar circumstances of the case, we are of the considered view that the punishment awarded to the appellant is harsh for a first offender, who has no previous criminal record, therefore, the appellant deserves leniency.
12. As a sequel to the above, the appeal is partly allowed and the impugned judgment
dated 26.09.2022 of the Trial Court is modified by reducing the sentence of the appellant from nine years to three years and fine of Rs.80,000/ - to Rs.30,000/ - with the premium of
section 382- B, Cr.P.C.
The Registrar of this Court is directed to transmit copy of this judgment to all the
learned Sessions Judges, Additional Sessions Judges and Judicial Magistrates of Balochistan.
MQ/95/Bal. Sentence reduced.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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