Muhammad Shahbaz alias Chamma Tinda vs The State
The petitioner sought the suspension of his sentence and release on bail during the pendency of his criminal appeal against his conviction under Section 9(c) of the Control of Narcotic Substances Act, 1997, whereby he was sentenced to rigorous imprisonment for six years for the recovery of 1350 grams of Charas. The core legal question was whether the petitioner's sentence ought to be suspended and bail granted pending appeal, considering the period already undergone and the quantum of sentence awarded vis-a-vis established sentencing policies. The Lahore High Court allowed the petition, holding that the petitioner had already undergone a substantial portion of his sentence (two years and ten months), that the early hearing of the appeal was unlikely rendering the appeal potentially infructuous, and that the sentence awarded exceeded the settled sentencing policy for the quantity of narcotics recovered. The court laid down the principle that post-conviction bail may be granted where the applicant has served a significant part of the sentence with little prospect of an early disposal of the appeal, and where the quantum of sentence requires serious reconsideration in light of binding judicial precedents.
- Whether post-conviction bail can be granted when the accused has already undergone a substantial period of imprisonment and the appeal is unlikely to be heard in the near future?
- Does the quantum of sentence for the recovery of Charas exceeding one kilogram and up to two kilograms require reconsideration if it deviates from established sentencing policies?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 382(b), Code of Criminal Procedure 1898
ORDER
C.M. No. 1 of 2020.
Muhammad Shahbaz alias Chamma Tinda petitioner-appellant by way of the instant petition has sought for suspension of his sentence and release on bail during the pendency of his appeal.
2. The petitioner was tried in case FIR No.151/2017, dated 01.04.2017, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Burewala, District Vehari and vide judgment dated 28.03.2018, passed by the learned Additional Sessions Judge, Burewala, the petitioner has been convicted and sentenced as under:- Under section 9(c) of CNSA, 1997 to rigorous imprisonment for six years with fine of Rs.20,000/- and in default thereof to suffer simple imprisonment for five months.
Benefit of section 382(b), Cr.P.C. was also extended to the petitioner.
3. Arguments heard. Record perused.
4. As per prosecution case, on 01.04.2017, the petitioner was apprehended by the police and Charas weighing 1350 grams was recovered from his possession. It is evident from paragraph No.1 of impugned judgment dated 28.03.2018, passed by the learned trial Court that the petitioner was arrested in this case on 01.04 2017.
Paragraph No.13 of the impugned judgment further reveals that the petitioner was under custody at the time of announcement of the said judgment. The petitioner is behind the bars since the date of his arrest i.e., 01.04.2017 and as such he has already undergone a period of two years and ten months of his imprisonment.
There is no prospect of early decision of the main appeal of the petitioner in the near future as the same pertains to the year 2018, therefore, possibility cannot be ruled out that the petitioner may serve out his entire sentence before the decision of his main appeal on merits. In that eventuality, purpose of filing of appeal by the petitioner before this Court shall become infructuous.
5. It is further noteworthy that the sentence awarded by the learned trial Court to the petitioner on recovery of 1350-grams Charas, is against the sentencing policy, settled by this Court in the case of "Ghulam Murtaza and another v. The State" (PLD 2009 Lahore 362) and affirmed by the Hon'ble Supreme Court of Pakistan, in the case of "Ameer Zeb v. The State" (PLD 2012 Supreme Court 380), according to which in the case of recovery of Charas exceeding 1 K.G and unto 2 K.G, an accused is to be convicted and sentenced to four years and six months rigorous imprisonment with fine of Rs.20,000/- and in default to further undergo five months simple imprisonment. The quantum of sentence awarded by the learned trial Court to the petitioner also requires serious reconsideration.
6. In the light of above discussion, this miscellaneous petition is allowed, the sentence of the petitioner Muhammad Shehbaz alias Chamma Tinda is suspended and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. The petitioner is directed to appear before this Court on each and every date of hearing of his appeal.