FAKHAR ZAMAN vs The STATE
This criminal appeal arises from a judgment of the Special Judge (CNS), Peshawar, whereby the appellant was convicted under Section 9(C) of the Control of Narcotic Substances Act, 1997 for possessing a large quantity of narcotics and sentenced to imprisonment for life with a fine. The core legal questions involve the appreciation of evidence regarding the appellant's guilt and the quantum of sentence in light of mitigating circumstances such as the appellant's medical condition as a hepatitis patient and his status as a first-time offender and carrier. The Peshawar High Court held that the prosecution successfully proved its case beyond a shadow of doubt based on consistent witness testimonies, thus maintaining the conviction. However, considering the mitigating factors, the court reduced the sentence from life imprisonment to ten years of rigorous imprisonment, keeping the fine and the benefit of Section 382-B of the Code of Criminal Procedure intact, and issued directions for his medical care. The key principle laid down is that while guilt based on solid evidence warrants conviction, mitigating circumstances like being a first offender, carrier, and medical illness justify a reduction in the quantum of sentence.
- Whether the uncontradicted and consistent testimony of prosecution witnesses is sufficient to prove the charge under Section 9(C) of the Control of Narcotic Substances Act 1997?
- Can the sentence of life imprisonment be reduced to ten years rigorous imprisonment on the grounds of mitigating circumstances such as being a first offender, a carrier, and suffering from a chronic illness like Hepatitis-C?
- Whether the benefit of Section 382-B of the Code of Criminal Procedure 1898 remains intact when an appellate court reduces the quantum of sentence?
- Section 9(C), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
' MAZHAR ALAM KHAN MIANKHEL, J.---Fakher Zaman, appellant herein, was found in possession of 82.600 kilograms of 'Charas Garda' and 7 kilograms of 'Charas Pukhta'. A case under section 9(C) of the Control of Narcotic Substances Act, 1997 was registered against him vide F.I.R. No,23, dated 5- 4-2009 in Police Station Anti-Narcotics Force, Peshawar. After his arrest and completion of investigation, he was sent to the Court of learned Special Judge (CNS), Peshawar for trial, who, on its conclusion, convicted and sentenced him to suffer imprisonment for life with a fine of Rs,50,000 or in default, to further undergo six months S.I vide judgment dated 17-5-2010. Hence, this appeal.
2. The learned counsel appearing on behalf of the appellant in the first instance by referring to a few minor discrepancies in the evidence tried to canvass for outright acquittal of the appellant but when he sensed that he is n't on so strong a wicket, he straightaway asked for reduction in sentence as the appellant is a chronic patient of Hepatitis-C and in this regard he produced his medical reports.
3. As against that, the learned counsel appearing on behalf of the State by highlighting the salient features of the case argued that the witnesses, examined by the prosecution, have consistently charged the appellant; that in the absence of any discrepancy in their evidence, charge against him stands proved beyond any shadow of doubt and that the finding of the learned Trial Court being based on proper appraisal of evidence merits no interference. However, he, in view of the medical condition of the appellant couldn't resist his prayer for the reduction in sentence.
4. We have gone through the record carefully and considered the submissions made by the learned counsel for the parties.
5. The prosecution to prove its case examined as many as five witnesses. All of them gave a vivid account of the occurrence in the Court. There is no .Discrepancy in the statements of any of the witnesses as could create doubt in the prosecution version, notwithstanding, all of them were subjected to a searching cross-examination. There is also nothing on the record as could even remotely suggest that the incriminating substance was either planted or the appellant was falsely charged. When, this being the position, we have no doubt in our mind as to the guilt of the appellant.
6. Now comes the question of quantum of sentence. The appellant, a young man was sentenced to life imprisonment and, admittedly, he besides being a patient of Hepatitis-C is also a first offender having no history of being involved in narcotics cases and, as per material available on the record, he just appears to be a carrier. His role and conduct in the circumstances would call for lesser punishment. The sentence of ten years, in the circumstances, would be sufficient to meet the ends of justice. Reliance in this regard can be placed on the judgments, rendered in the cases of Gul Raeef Khan v. State (2008 SCMR 865); Muhammad Tariq v. State (2009 SCMR 1220) and Mudassir v.
State (2012 YLR (Penh.) 463).
7. For the reasons discussed above, we, while maintaining the conviction of the appellant, reduce his sentence from Life Imprisonment to Ten years R.I. By leaving the fine and benefit of section 382- B, of the Cr.P.C., intact. However, by keeping in mind the medical condition of the appellant, the Jail authorities as well as Medical Officer, Jail are directed to take his extra care and, if need be, he be periodically, shifted to the hospital for medical treatment. With the modifications detailed above, this appeal stands disposed of.
Sentence reduced