2022 Y L R Note 99
[Balochistan (Turbat Bench)]
Before Jamal Khan Mondokhail and Rozi Khan Barrech, JJ
AADIL ---Appellant
Versus
The STATE and another ---Respondents
Criminal Appeal No. (T) 146 of 2019, decided on 24th February, 2020.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Sentence--- Scope --- Accused was sentenced to
imprisonment for 15 years for having been found in possession of 15 kilograms of charas ---
Law provided a sentence for the offence not less than imprisonment for life but the command
of law escaped the notice of Trial Court ---Impugned judgment was set aside and the case was
remanded to the Trial Court for decision afresh.
State through Director General ANF Peshawar v. Muhammad Ramza n and others
2019 SCMR 1295; State through Regional Director ANF Peshawar v. Sohail Khan 2019
SCMR 1288 and State through Director ANF Peshawar v. Fakhar Zaman 2019 SCMR 1122
ref.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Preamble & Ss. 7 , 8 & 9 ---Object and purpose ---Sentence, quantum of ---Import or export
of narcotic/drugs, trafficking or financing the trafficking of narcotics/drugs ---Scope ---Object
and purpose as mentioned in the Preamble of Control of Narcotic Substances Act, 1997 was to consolidate and amend the laws relating to narcotic drugs and psychotropic substances ---
Object and purpose was also to regulate the treatment and rehabilitation of narcotic addicts and the matters connected and incidental therewith---Section 7 prohibite d the import into,
export from and transporting within Pakistan of any narcotic drug and psychotropic substance or controlled substance, save in accordance with the Rules made under S.7(2) of the Act ---Trafficking or financing the trafficking of narcotic drugs was prohibited under S. 8-
--Section 9 described distinct punishments for contravention of the prohibition contained in Ss. 6, 7 & 8 of the Control of Narcotics Substances Act, 1997 ---Punishments were divided
into three categories i.e. in cls. (a), (b) & (c) of S.9 ---Clause (a) of S.9 prescribed punishment
of imprisonment which might extend to two years or with fine or with both if the quantity of narcotic drugs and psychotropic substances or controlled substance was one hundred grams or less ---Clause ( b) of S.9 was in respect of narcotic drugs and psychotropic substances or
controlled substances which exceeded one hundred grams but did not exceed one kilogram and prescribed a punishment of imprisonment which might extend to 7 years besides
imposition of fine---Likewise cl. (c) of S.9 was in respect of quantity which exceeded the
limit specified in cl. (b) i.e. more than one kilogram and the punishment prescribed was death
or imprisonment for life or imprisonment for a term which might extend to 14 years and the person would also be liable to fine upto rupees one million--- Proviso to S. 9 provided that if
the quantity exceeded 10 kilogram then the punishment would not be less than imprisonment
for life.
Khalil Ahmed Lehri for Appellant.
Sudheer Ahmed, De puty Prosecutor General for the State.
Date of hearing: 6th February, 2020.
ORDER
ROZI KHAN BARRECH, J .--- This criminal appeal is directed against the
judgment dated 01.11.2019 (hereinafter "the impugned Judgment") passed by learned Special
Judge, CNSA (MCTC) Turbat, (hereinafter "the trial Court") in MCTC (CNS) Case No.18 of
2019, FIR No.90 of 2019 Police Station Turbat, whereby the appellant Aadil son of Abdul Rauf has been convicted under section 9- c of the Control of Narcotic Substances Act, 1997
("the Act") and sentence to suffer RI for fifteen (15) years with fine of Rs.50,000/ - (Rupees
Fifty Thousand Only) or in default of payment of fine to further undergo SI for five (05) months. Benefit of section 382(B), Cr.P.C., was extended in favour of the a ppellant.
2. Briefly stated the facts of the case are that on 29.06.2019 the complainant Abdul
Sattar Dashti IP/SHO along with other police officials were patrolling the area under the supervision of DSP Muhammad Qasim. During patrolling, they received sec ret information
that Aadil son of Abdul Rauf (appellant) is selling drugs along with his companions in his quarter/house situated at Sami Para Singani Sar Turbat. On such information, they raided the house of the accused/ appellant at about 12:30 a.m., and found a person present in a room.
On inquiry, he told his name as Aadil (appellant) and on checking 15 packets of Charas were recovered from the room which were taken into possession. On checking of other room, two persons were found who told their names as Nizam son of Islam and Shahzaib son of Malik Mazar. On their personal search, pistols and rounds were recovered from their possession which was also taken into possession. On weighing, each packet of Charas came to 1000 grams, total 15000 grams. The IP/ SHO sent Marasila to Police Station City Turbat District
Kech. On the Marasila of complainant IP/SHO vide FIR No.90 of 2019 for an offence under section 9 -c of the Act was registered on 19.06.2019 at Police Station City Turbat District
Kech.
3. After compl etion of investigation, challan was submitted before the trial Court.
Charge was framed and read over to the accused to which he pleaded not guilty and claimed justice through trial.
4. At the trial, the prosecution examined as many as four (04) witnesses. On completion
of prosecution's evidence the appellant was examined under section 342, Cr.P.C., wherein
the accused denied the allegations made against him. The appellant did not record his
statement on oath nor lead any witness in his defence.
5. On concl usion of the trial, the trial Court convicted and sentenced the appellant vide
impugned judgment dated 01.11.2019. Hence this appeal.
6. We have heard the learned counsel for the parties and have gone through the record
with their able assistance. It has alleged against the appellant/accused that 15000 grams of Charas were recovered from his possession, while the learned trial Court convicted the accused/appellant under section 9 -c of the Act i.e. 15 years RI. The relevant portion of the
impugned judgment of the trial Court is reproduced herein below: -
"Since the prosecution has succeeded to prove its case against the accused without any shadow of doubt and point No.1 has been resolved in affirmative, therefore, the accused is liable to be convicted and sentenced. However, keeping in view the mitigating circumstances that police neither associated any private person as witness nor obtained search warrant, therefore, a lenient view is taken in favour of accused while awarding sentence to h im. Hence, the accused Aadil son of Abdul Rauf is
convicted under section 9(c) of the CNS Act, 1997 and sentenced to suffer fifteen (15) years RI and fine of Rs.50,000/ - (Rupees Fifty Thousand Only) or in default of
payment of fine, he shall further suffer SI for five (05) months. Benefit of section
382- B Cr.P.C., is extended in favour of accused"."
7. The question arises here that whether a sentence less then imprisonment of life can be
awarded to a convict with contraband exceeded 10 kg in weight. The Act was enacted and
notified in the official gazette of 11.07.1997. The object and purpose, as mentioned in the
preamble, was to consolidate and amend the laws relating to narcotic drugs and psychotropic substances. Moreover, the object and purpose was also t o regulate the treatment and
rehabilitation of narcotic addicts and the matters connected therewith and incidental therewith. Section 7 prohibits the import into, export from and transporting within Pakistan of any narcotic drug, psychotropic substance or controlled substance, save in accordance with the rules made under subsection (2) ibid. Trafficking or financing the trafficking of narcotic drugs is prohibited under section 8. Section 9 describes distinct punishments for contravention of the prohibition contained in sections 6, 7 and 8 of the Act. Punishments are
divided into three categories i.e. in clauses (a), (b) and (c) of section 9. Clause (a) of section 9 prescribes punishment of imprisonment which may extend to two years or with fine or with both if the quantity of narcotic drugs, psychotropic substance or controlled substance is one
hundred grams or less. Clause (b) of section 9 is in respect of narcotic drugs, psychotropic substances or controlled substances which exceed one hundred grams but do not exceed one kilogram and prescribes a punishment of imprisonment which may extend to seven years besides imposition of fine. Likewise clause (c) of section 9 is in respect of a quantity which exceeds the limit specified in clause (b) i.e. more than one kilogram and the punishment prescribed is death, or imprisonment for life or imprisonment for a term which may extend to 14 years and the person shall also be liable to a fine up to rupees one million. The proviso of section 9 provides that if the quantity exceeds ten kilogram, then the punishment shall not be
less than imprisonment for life.
8. In the case in hand, the recovery allegedly was effected from the accused/appellant is
exceeded of 10 kg and it was 15 kg, the law provide it sentence not less than imprisonment
for life. Command of law escaped notice
of the learned trial Judge. The learned DPG who is appearing on behalf of the State has
contended that the learned Special Court, by adopting an extremely lenient and stereotype
approach, has defeated the object and purpose of the enactment of the Narcotic Substances Act, 1997 (hereinafter the Act of 1997").
9. When confronted with the above, the learned counsel appearing on behalf of the
appellant was not able to give any plausible explanation for the mode adopted by the learned Special Judge for determining the quantum of sentence in the case.
10. We are afraid that the methodology adopted by the learned Special Judge in the
context of handing down sentences in the appeals is not in consonance with the broad
guidelines and law enunciated by the august Supreme Court. Reliance is placed on a case State through Director General ANF Peshawar v. Muhammad Ramzan and others 2019 SCMR 1295, State through Regional Director ANF Peshawar v. Sohail Khan 2019 SCMR 1288 and State through Director ANF Peshawar v. Fakhar Zaman 2019 SCMR 1122.
For the above reasons, the impugned judgment dated 01.11.2019 passed by the
learned Special Judge, CNSA (MCTC) Turbat, is set aside and the case is remanded to the learned trial C ourt who after affording opportunity of hearing to the parties shall decide the
case according to law.
SA/138/Bal. Case remanded.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,
let us know.