MOHAMMAD MUNIR vs The STATE and another

SHEHRAM SARWAR CH. J.---The instant appeal is directed against the judgment dated 10.03.2010, passed by the learned Sessions Judge, Toba Tek Singh, whereby Muhammad Munir, appellant was convicted under Section 9(c) of The Control of Narcotic Substances Act, 1997 in case FIR No .361/2009 dated 11.08.2009, offence under Section 9(c) CNSA, registered at Police Station City Toba District Toba Tek Singh and sentenced to imprisonment for life along with fine of Rs,1,00,000/- (rupees one lakh only) and in default thereof, he was to further undergo (06) six months simple imprisonment. Benefit of Section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him.

2. Precisely the facts necessary for adjudication of instant appeal, as emanates from the statement of complainant Zahid Hussain S.I. (PW-5) are as under:-- "On 8.11.09 I was posted in Special squad Toba Tek Singh. At about 2.30 p.m I along with other police officials was present on the road of DCO House. Informer told me that Munir accused deals in narcotics and he has gone to get the same today. We reached near his house and surrounded 'the same. After short while accused came from the side of Mohallah Mohammad Pura. He was having khakhi bag on his shoulder. He was apprehended by me with the help of other officials. I redhanded his bag and recovered five packets of charas. On weighing every packet was of one kilo. I separated 10 grams sample from every packet and converted them into sealed parcel. I also prepared sealed parcel of recovered charas. I took the recovered charas in possession vide memo Ex.P.C. On personal search of accused A Nokia phone P.2 and two notes P.3/1-2 of Rs,500/- were also recovered. I took these into possession vide memo Ex.P.D. Both the recovery memos were signed by Muhammad Akram ASI and Muhammad Shahid 889-C. I prepared complaint Ex.P.E and send the same to police station for registration of case through Muhammad Nasir constable. After registration of case Suleman SI reached there. I had sent the sample charas and recovered charas to police station through Nasir constable with the complaint. Suleman SI reached the place of occurrence. I handed over accused. He recorded our statements."

' On the basis of above said facts, complaint Exhibit-PE was reduced into writing, which was then transmitted to the police station for registration of case FIR No,361/2009 dated 11.08.2009, offence under Section 9(c) CNSA, registered at Police Station City Toba District Toba Tek Singh.

3. After formal investigation, report under Section 173 of The Code of Criminal Procedure, 1898 was submitted before the learned trial Court and the accused/ appellant was sent to face the trial. The learned trial Court, seized with the matter, framed the charge against the accused under Section 9(b) of The Control of Narcotic Substances Act, 1997 on 21.10.2009 to which he pleaded not guilty and claimed trial.

4. In order to prove the alleged recovery, the prosecution examined five witnesses in toto.

Muhammad Akram ASI (PW.4) witnessed the recovery of charas from the possession of the appellant. Muhammad Suleman S.I. (PW.3) investigated this case and while appearing in the witness box narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. After completion of prosecution evidence, the statement of appellant/accused was recorded under Section 342 of The Code of Criminal Procedure, 1898 wherein he pleaded his innocence and denied the allegations leveled against him. He did not appear in the witness box in terms of Section 340(2) of The Code of Criminal Procedure, 1898, however, he produced documents Exh.DA to Exh.E as well as Mark A in his defence.

5. After completion of evidence and hearing both the sides, the learned trial Court, vide its judgment dated 10.03.2010 convicted the accused/appellant under Section 9(c) of The Control of Narcotic Substances Act, 1997 as mentioned in the opening paragraph of the instant judgment.

6. Despite repeated calls none has appeared on behalf of the appellant. Therefore, we are proceeding with the matter after hearing the arguments of learned Addl. Prosecutor General and going through the record.

7. Learned Additional Prosecutor General has defended the judgment of the learned trial Court awarding the conviction to the appellant.

8. Heard. Record perused.

9. The appellant was arrested in this case on 11.08.2009 and since then he is behind the bars meaning thereby the appellant has already served out more than six years of his substantive sentence and during the said period definitely the appellant must have earned some remissions.

During the tendency of this appeal vide order dated 21.11.2012 of this court, Superintendent Central Jail, Faisalabad was directed to submit his detailed report qua the period of sentence served out/un-served by the appellant including the remissions if any. According to the report dated 30.11.2012, submitted by Superintendent Central Jail, Faisalabad served out/ remaining sentence of the con..Ict Muhammad Munir appellant is as under:-- Detail Y M D Under trial period00 06 24 Substantive sentence02 08 20 Remission earned07 03 25 Remaining Sentence14 04 21 ' It is pertinent to mention here that the said report was called in the year 2012. After going through the record we observe that the appellant was convicted on account of recovery of charas weighing 05 k.g and sentenced to imprisonment for life along with fine of Rs,1,00,000/- (rupees one lakh only) but the sentence awarded to the appellant by the learned trial court is against the guidelines and sentencing policy given in the judgment titled as Ghulam Murtaza and another v.

The State (PLD 2009 Lahore 362) wherein it is mentioned that rigorous imprisonment for 07 years and 06 months with fine Rs,35,000/- or in default SI for 06 months and 15 days would be the normal and standard sentence in the case where the charas is exceeding 04 kilograms and upto 5 kilograms. In the case in hand, the charge against the appellant is of 05 kilograms charas. The appellant has already served out the period of more than 06 years of his substantive sentence excluding the remissions. Therefore, while following the above said celebrated judgment of this Court we are inclined to reduce the sentence of the appellant. Hence, while maintaining the conviction of Muhammad Munir appellant, we reduce his sentence to already undergone. Amount of fine imposed by the learned trial is reduced to Rs,35,000/- (rupees thirty five thousand only) from Rs,1,00,000/- (rupees one lakh only). The appellant is in custody. On payment of fine he shall be released forthwith if not required in any other criminal case. With the above observations, Criminal Appeal No,918 of 2010 is dismissed.