Elochukwu Tony vs The State
This criminal appeal challenges the conviction and sentence of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, recorded by the Special Court CNS, Lahore, arising out of case FIR No. 49/2002 registered at Police Station ANF, Lahore. The prosecution alleged the recovery of heroin from the possession of the appellant and a co-accused who was subsequently acquitted. Before the Lahore High Court, the appellant did not challenge the conviction itself, seeking instead a reduction in sentence on the grounds of being a first-time offender, a poor carrier exploited by drug lords, and lacking any previous criminal history. The High Court upheld the conviction, noting the absence of any challenge to the merits or the investigation, but exercised discretion to reduce the substantive sentence of rigorous imprisonment and the fine, while extending the benefit of Section 382-B of the Code of Criminal Procedure, 1898. The court also highlighted broader socio-economic concerns regarding drug trafficking and the exploitation of impoverished carriers.
- Can the appellate court reduce the sentence of a narcotics convict while maintaining the conviction when the appellant does not challenge the merits of the case?
- Whether a poor carrier acting on behalf of principal offenders is entitled to a lenient sentence under the Control of Narcotic Substances Act, 1997?
- Is a convict under the Control of Narcotic Substances Act, 1997 entitled to the benefit of Section 382-B of the Code of Criminal Procedure, 1898?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 342, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
ORDER ALI NAWAZ CHOWHAN, J.- Elochukwu Tony appellant was convicted under section 9(c) of the Control of Narcotic Substance Act, 1997 by the learned Judge Special Court CNS Lahore vide judgment dated 27.1.2004 in case FIR No. 49/2002, dated 23.12.2002 registered at Police Station ANF Lahore and sentenced to 12 years' R.I. With a fine of Rs. 4,00,000/- or in-lieu thereof, to further undergo one year's S.I. By the same judgment Fatoumata was acquitted of the charge.
2. Briefly the prosecution case is that on 23.12.2002 Major Shamshad Hussain Dar, Deputy Director ANF Lahore alongwith other officials on a spy information apprehended the accused alongwith Fatoumata from Uganda Hotel and five packets of heroin each weighing 1 Kg were recovered from the shopping bag which the appellant was holding ir^ his hand whereas 500 grams heroin was recovered from the hand bag of Fatoumata.
3. The prosecution to prove its case examined as many as five witnesses. Muhammad Afzal Asim, Inspector PW-1 recorded formal FIR Ex.PA on the basis of the written complaint. Muhammad Yasin HC PW-2 deposed about the safe custody of the sealed parcels containing heroin in the malkhana of the police station. Rashid Mehmood constable PW-3 transmitted the sealed parcels said tp contain heroin to the office of Chemical Examiner Lahore. Rao Zahid Mehmood, Inspector PW-4 and Amir Hamza, Ex-Inspector ANF, Lahore PW-5 are the witnesses of the recovery.
4. The accused were examined under section 342, Cr.P.C. They denied all the allegations and recovery of heroin. They neither opted to appear as their on. Witnesses under section 320(2), Cr.P.C, nor produced any defence evidence.
5. Before this Court the order of conviction was not assailed nor was there any cogent argument against the Investigation Agency. The learned counsel candidly stated that he was more anxious in the reduction of sentence, it is further stated that the appellant has no history of any previous involvement. That he was merely a carrier who out of sheer poverty may have been involved by a principal living in safe havens aboard. That this malady is rampant in the third world because of economic reasons. What he meant was that "poverty was the mother of all crimes."
7 We are, of course, of the view that until and unless there is a social-logical movement through the help of religion and a firm propaganda we may not be able to have an effective check on the production and smuggling of narcotic whether by the locals or the foreigners.
8. We hear every week numerous narcotics cases and we find a mechanical process aimed at arresting the accused. But we never hear of any movement either on behalf of the Narcotics Control Board, the Government of Pakistan (Interior Ministry) or the Ministry of Religious Affairs persuading people to refrain from this nefarious trade or warning the carries and their lords who indulged in this trade. While the rich lords keeping themselves immune from the clutches of law openly exploit the poor for acting as their carriers.
9. This Is happening not only in Pakistan but -in all the third world countries and we are required to* meet the challenge because it is the poor who lose their heads and suffer incarceration. The trade also brings a bad name to Pakistan every time a narcotic case is detected.
10. The Government Ministries afore-mentioned can co-ordinate with our neighbouring country Afghanistan. After all these are Muslim majority areas where the narcotics are being grown contrary to the Injunctions of Islam and we are required to spot this trade.
11. It is said that the appellant was poor carrier and has no previous history.
12. After hearing the learned counsel for the appellant we are upholding the order of conviction and keeping in view the circumstances of the case we are reducing the sentence from twelve years' to seven years' R.I. And also reduce the sentence of fine from Rs. 4,00,000/- to Rs. 3,00,000/- or in lieu thereof to further undergo six months' S.I. He is, however, given the benefit under section 382-B, Cr.P.C. The appeal is disposed of accordingly.
13. In view of what is stated in paragraph Nos. 7 to 10 we think it proper that a copy of this judgment is forwarded to the three agencies referred to in the aforementioned paragraphs in the personal names of their head in sealed covers and in the national interest and welfare of the people.