Muhammad Amjad alias Bholli vs The State

SADIQ MAHMUD KHURRAM, J. The appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees was tried by the learned Sessions Judge, Bahawalnagar in case FIR No. 157 of 2017 dated 01.05.2017 registered at Police Station Dunga Bunga, District Bahawalnagar , in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. The learned Sessions Judge, Bahawalnagar vide judgment dated 15.03.2018 convicted Muhammad Amjad alias Bholli son of Muhammad Idrees (appellant) and sentenced him as infra: Muhammad Amjad alias Bholli son of Muhammad Idrees: Rigorous Imprisonment for four years and six months under section 9 (c) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs.20,000/- ; in default thereof, was directed to further undergo simple imprisonment for five months.

The appellant was however , extended benefit available under Section 382 B of Code of Criminal Procedure, 1898.

2. Feeling aggrieved, Muhammad Amjad alias Bholli son of Muhammad Idrees (convict) lodged the instant Criminal appeal No. 201-J of 2018 through jail, challenging the judgment dated 15.03.2018 passed by the learned Sessions Judge, Bahawalnagar , whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997, as mentioned above.

3. At the very outset, the learned couns el for the appellant has apprised the Court that the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees died on 16.08.2021 and has submitted a Death Registration Certificate as issued by the Govt. of Punjab, Pakistan. The learned Deputy Prosecutor General has also submitted a report on behalf of the SHO Police Station Dunga Bunga, Bahaw alnagar according to which the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees died on 16.08.2021. With this report submitted by the learned Deputy Prosecu tor General, a copy of the Death Registration Certificate as issued by the Govt. of Punjab, Pakistan has been appended which reflects the same information with regard to the death of the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees. In view of the matter , it is proved that the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees died on 16.08.2021.

4. The learned counsel for the appellant submits that as the appellant has already died, therefore, the instant appeal may be disposed of.

5. The learned Deputy Prosecutor General submits that as the appellant has died hence, the appeal stands abated.

6. We have thoroughly considered the respective arguments of learned counse l for the appellant, the learned Deputy Prosecutor General and have examined the entire record.

7. The section 431, Code of Criminal Procedure, 1898 mandates that every appeal under section 411-A subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter i.e. Chapter XXXI of the Code of Criminal Procedure, 1898 , except an appeal from a sentence of fine, shall finally abate on the death of the appellant. For the sake of convenience and ready reference, section 431, Code of Criminal Procedure, 1898 is reproduced below:- "431.Abatement of Appeals:- Every appeal under section 411-A subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant".

In this view of the matter , the instant appeal stands abated under section 431, Code of Criminal Procedure, 1898 to the extent of the sentence of rigorous imprisonment awarded to the appellant. We have, therefore, examined the case of the appellant with regard to the sentence of fine awarded to him by the learned trial court.

We find that the prosecution has undoubtedly established the factum of recovery of 1160 grams of "Charas" (P-1), from the possession of the appellant. Ata Muhammad ASI (PW-2) and Rizwan Yousuf 761/HC (PW-3) were examined as witnesses of recovery of the 1160 grams of Charas (P-1) from the appellant and made their statements in this regard before the learned trial court. While going through the statements of these witnesses, we have examined that the recovered "Charas" was duly exhibited in their evidence as P-1 which was taken into possession through recovery memo (Exh. PA). Both the witnesses have given each and every detail of the recovery proceedings and were cross examined at length. Nothing fruitful cropped up during the said cross examination. The theme of cross-examination also reveals that the facts in issue were not being challenged seriously . We are also conscious of section 29 of the Control of Narcotic Substances Act, 1997 which provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise. The report of Punjab Forensic Science Agency , Lahore, (Exh.PD) was also tendered in evidence which confirms the nature of recovered substance. Nothing is available on record which could establish that these witnesses deposed against the appellant and implicated him in this case due to previous enmity , grudge or malice or to fulfill some ulterior motive. The prosecution also successfully proved the safe deposit of the narcotic substance from the place of occurrence to the police station and from the police station to the office of Punjab Forensic Science Agency , Lahore by producing witnesses in support of this. Therefore, we are persuaded to hold that the appellant was rightly convicted by the learned trial court.

8. We, as a result of the above discussion, dismiss this appeal to the extent of the sentence of fine awarded to the appellant and uphold the impugned judgment dated 15.03.2018 passed by the learned Sessions Judge, Bahawalnagar . The sentence of the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees (since dead) was suspended by this Court vide order dated 11.04.2018. The surety of the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees (since dead) shall stand discharged from his liability and the bail bonds submitted by the appellant namely Muhammad Amjad alias Bholli son of Muhammad Idrees (since dead) are hereby cancelled.

9. The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately .