MUHAMMAD ASHRAF Versus State

ALI NAWAZ CHOWHAN, J.--- This judgment will dispose of Criminal Appeal No.1806 of 2002 and Criminal Appeal No.1807 of 2002 filed by Muhammad Ashraf appellant as in both of these appellant was the same and were registered one after the other.

2. The first arise out of F.I.R. No.34 dated 27-2-2002 registered at Police Station Saddar Toba Tek Singh. According to the prosecution story in this case when the appellant was apprehended near Bus Stop of Chak No.383/JB he was found in possession of 100 grams of Charas and 225 grams of opium. The second matter relates to case F.I.R. No.35 dated 27-2-2002 registered at Police Station Saddar Toba Tek Singh and the allegation is that he led to the recovery of Charas weighing 1090 grams and opium 375 grams from his shop which is said to be located adjacent to his house in Chak No.383/JB.

3. In the first case the trial Court convicted and sentenced him to five years' R.I. with a fine of Rs.10,000 or in lieu thereof to further undergo six months' S.I.

4. While in the second case he was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life with a fine of Rs.30,000 or in lieu thereof to further undergo one year's S.I. He was given the benefit under section 382-B, Cr.P.C. in both the cases and the sentences in both the cases were ordered to run concurrently.

5. All the witnesses who supported the story of both the F.I.Rs. are the official witnesses. In the first case i.e. F.I.R. No.34 of 2002 Muhammad Anwar (P. W .1) recorded the formal F.I.R. (Exh. P. A.) on the basis of complaint received by him. According to him the narcotics substance was kept in safe custody at the Malkhana. Khalid Jamil, A.S.-I. (P.W.2) and Shaukat Ali constable (P.W.4) had witnessed the recoveries whereas Atif Imran is the complainant who supported the complaint on the basis of which the F.I.R. has been written during the testimony. The narcotics substance was sent to the Chemical Examiner through Abdul Hameed (P,W.5).

6. In the second F.I.R. i.e. 35 of 2002 Khalid Jamil and Atif Imran A.S.-I. were the witnesses of recovery whereas Muhammad Anwar H.C. had recorded the F.I.R. on the basis of complaint sent by the A.S.-I. Atif Imran. Regarding the storage of the narcotics in safe custody we have the deposition coming from Muhammad Anwar and its transmission to the office of Chemical Examiner the prosecution brought Abdul Hameed (P.W.2) as a witness who carried the material to the office of Chemical Examiner.

7. ? In his statement under section 342, Cr.P.C. the case of the appellant in both these F.I.Rs. was one of denial. He took the following plea:

"Mst. Khadija had married her daughter to his son Iqbal who died and she wanted to marry her other daughter with his son whereas he married him to the daughter of Liaqat Rajput resident of Gojra which enraged Mst. Khadija Bibi who due to her links with the police through S.S.P. Toba Tek Singh involved him in this case."

He did not opt to appear as his own witness under section 340(2), Cr.P.C. nor did he produce any evidence in defence.

8. We quite appreciate that the witnesses of recovery rather the entire prosecution evidence consists of official witnesses. The plea taken by the appellant in both these cases is not cogent and we find no grounds for his false involvement because of his dispute with a private person and because of the influence of a senior police official. The witnesses remained steadfast in their testimonies and their credibility also remained unimpeached with respect to the recovery of the narcotics. We, therefore, are of the view that the prosecution did prove its case as far as the recovery aspect of the narcotics is concerned.

9. In such-like cases where the narcotics recovered is not of a huge quantity and is around the weight as has been given by the prosecution side in both these cases a duty is also cast upon the Court to have it weighed in front of its own eyes because it is a general public complaint that the testimonies of the recovery witnesses besides on the factum of recovery are also believed with respect to whatever weight they may be suggesting regarding the seized narcotics. Whereas, a little difference in the weight can take the case out of the ambit of one subsection to another of section 9 of the Control of Narcotic Substances Act, 1997 and which then has a bearing on the quantum of the sentence. It is also the general public complaint that besides exaggerating weight the seizing authorities do add some quantity of narcotics from their own to make the offence look more serious and this addition is possible because of the stocks of narcotics already available with them.

10. What then should be the precaution? Under the circumstances it is the duty of the Court to ensure that the parcels it receives were duly sealed. It is also the duty of the office of the Chemical Examiner to ensure likewise. The trial Courts have also to further ensure that they do not take the word of the prosecution witnesses with respect to the weight as a gospel truth.

11. Of course, an argument from prosecution side can always be that in case of any doubt with respect to weight the accused can take an objection before the Court. But the misfortune is that most of the accused involved in this trade are poor carriers or addicts totally unaware of their fundamental rights and about the obligations which the prosecution has to fulfill. Because of their object poverty they are unable to get assistance from good counsel and their cases, therefore, also suffer on this account. Many of the persons apprehended are children, persons in early youth and illiterate and unlettered women. Seeing this situation and the miserable condition of the accused we think it proper to direct the trial Court to ensure that weighing of the seizing narcotics is done in the open Court so that specially in borderline cases an accused is charged correctly and convicted and sentenced correctly.

12. We find that the Court below believed the prosecution case with respect to the weight of the narcotics recovered in the case without verification of the weight under its view.

13. In F.I.R. No.34 of 2002 the total weight of the narcotics recovered amounts to 325 grams and the case fell clearly under section 9-B of the Control of Narcotic Substances Act, 1997. So the conviction appears to be correct. However, we have to see whether the sentence awarded by the learned trial Court was in proportion to the recovery and also in accordance with the usual punishments awarded by the Courts.

14. But as we proceed further in the matter of F.I.R. No.35 of 2002 we find that against a recovery of 1470 grams of narcotics as per the prosecution story and which was believed the appellant was sentenced to life imprisonment. It was the harshest possible sentence a Court could award against the recovery as aforementioned. We also find it to be extremely unusual.

15. The Courts are not supposed to be mechanical at the time of awarding sentence. They are supposed to think and consider what a proper sentence ought to be. They should also use their perceptions keeping in view the circumstances of the case, the society and the hardships which confront an accused. The fact that the investigation is often dishonest is another factor to be kept in the mind besides, the abject poverty of the accused which makes him vulnerable to the exploitation at the hands of the drug barons. Many of our young men are indulging in this nefarious activity because there are no jobs. There is no sociological movement to stop 'them becoming victims at the hands of the drug barons. There is no effective awareness campaign at the end of the Government disseminating information about the ills of this trade and he punishments. Many amongst the accused are first offenders and the Courts are required to show consideration to this aspect as well. Particularly, so in cases where only small quantities of narcotics are recovered as has happened in the present case.

16. We must also take inspiration from an order of great Caliph Hazrat Umar Bin Khatab (may Allah be please with him) during the time of famine suspending the sentence of Hadd while stating that until he was able to improve the conditions the State was not justified in inflicting Hadd sentences.

17. But we are sorry to observe that the learned trial Court was insensitive to what is said above and a very harsh sentence was awarded to the appellant in case of F.I.R. No.35 of 2002. While doing so the learned trial Court did not even bother to appreciate the rationale behind section 18 of the Control of Narcotic Substances Act, 1997.

18. After going through the record and while keeping in view all the circumstances and our own experience of dealing with narcotics cases we are reducing the sentence in case F.I.R. No.34 of 2002 from five years to two years' R.I. and fine from Rs.10,000 to Rs.2,000 or in lieu thereof to further undergo S.I. for two months and in the second case i.e. F.I.R. No.35 of 2002 from life imprisonment to three years' R.I. the amount of fine in view of the object poverty of the appellant is also reduced from Rs.30,000 to Rs.5,000 or in lieu thereof he is to further undergo three months' S.I. These sentences will run concurrently. The appellant is given the benefit under section 382-B, Cr.P.C. in both these cases and both these appeals are disposed of in these terms.

19. We would ask the Member Inspection Team of this Court to forward a copy of this judgment to the learned Judge by name for his rethinking on this subject. A copy be also sent to the Registrar of this Court for permission of the Honourable Chief Justice for circulation of this judgment amongst the subordinate Courts.

H.B.T./M-313/L ????????????????????????????????????????????????????????????????????????????????? Order accordingly.