Imran Khan Versus State
Order
Qazi Jawad Ehsanullah, J .--- Imran Khan son of Shah Wazir has called in question his conviction under Sections 9(d) and 11(c) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (the Act) recorded by learned Judge Special Court (CNS), Peshawar vide judgment dated 14.03.2024, whereby he has been respectively sentenced to undergo (i) 6 years rigorous imprisonment (RI) with fine of Rs.500,000/-, and in default of payment of fine further 2 years of simple imprisonment ( Si ) and (ii) 14 years RI with fine of Rs.700,000/-; in default of payment of fine he has been directed to undergo further three years SI. Both these sentences are held to run consecutively and benefit of section 382-B of the Criminal Procedure Code, 1898 (the Code) has also been ordered to be extended.
2. According to the story of prosecution mentioned in the FIR, the appellant was apprehended at car parking of Bagh-e-Naran Peshawar on 12.11.2021 at 1800 and a recovery of (i) 3 KGs of Amphetamine (ICE) and (ii) 02 KGs of Heroin was effected from underneath the rear seat of Toyota Corolla motorcar bearing No. LWA-2350 driven by him. He was booked in case FIR No. 67 dated 12.11.2021 initially under section 9(c) of the Control of Narcotic Substances Act, 1997 lodged in Folic Station ANF (RD) Khyber and was arrested on the spot. Challan in the said case was submitted for trial in the court of Judge Special Court (ANF), Peshawar followed by framing of charge on 09.04.2022. Upon conclusion of evidence of prosecution, the statement of accused was recorded under section 342 of the Code and ultimately the appellant was found guilty of the offence he was charged with and was convicted and sentenced as noted in the preceding paragraph of this judgment.
3. At the very outset, the learned counsel for the appellant has stated that he would not argue this appeal on merits and would only press for reduction of sentences on the grounds that the appellant has been indicted for recovery of only 03 KGs of Ice and 02 KGs of Heroin for which he has been awarded the aforesaid sentences which were too harsh and long. Besides, he contends that the order of learned trial court for running of sentences consecutively for offences under sections 9(d) and 11(c) of the Act was also not warranted in law. He submits that at the time appellant was arrested, he was only 22 years of age and was a first offender with no criminal record, so he deserved to be treated with mercy.
4. Conversely, Mr. Tariq Kakar, the learned Special Prosecutor for ANF opposed the submissions made by learned counsel for the appellant at the bar and stated that huge quantity of contraband has been recovered from the appellant for which he was convicted, and so the sentences awarded to him commensurate to the nature of offence committed by him and he deserved no leniency for reduction of his sentence.
5. Arguments heard and record perused.
6. There are two different aspects of this case which fall for determination by this court. One is with regard to the quantum of sentence awarded to the appellant and its consideration for reduction as prayed for and; second part is as to whether the sentences awarded to the appellant are to run consecutively or concurrently? Both these issues are taken up for discussion separately under distinct headings as below;
A) Quantum of Sentence
According to the impugned judgment, the appellant has been found guilty and convicted for recovery of 02 KGs of Heroin and 03 KGs of Ice, for which he has been respectively convicted and sentenced as under:
(i) Under section 9(d) of the Act
06 years RI with fine of Rs.500,000/-. In default of payment of fine he has been directed to undergo further 02 years SI.
(ii) Under section 11(c) of the Act
14 Years RI with fine of Rs.700,000/-, in case of default to undergo further 03 years S.I.
7. While sentencing an accused in any criminal case generally it has been held that sentence of imprisonment awarded in terms of its duration should always be commensurate to the gravity of offence proven and other attending circumstances like age of the convict, previous history and involvement in crime and chances of reformation etc. [1] The issue of quantum of sentence in narcotics cases has also been dealt with by the superior courts in quite a good number of cases. It has been settled by the apex Court that in cases of recovery of narcotics, the quantum of sentence should be dependent upon the nature of the contraband recovered as well as the quantity of the recovery made from the accused person. Reference may in this regard be made to the judgment of the apex court rendered in the case of Khuda Bakhsh v. The State' reported in 2015 SCMR 735. In this judgment, while dealing with an issue of quantum of sentence, the apex court has ruled as follows;
"7. The quantum of sentence in narcotic substances cases depends upon the quantity of the recovered substance. However, the samples that were stated to have been taken from different packets were not separately sealed and sent for separate analysis to the chemical examiner. In the present case, two kilograms were sent together in one sealed parcel, therefore, the appellant could at best be held liable for the said two kilograms. The prosecution however had succeeded in establishing its case against the appellant to the extent of two kilograms of narcotics; consequently, we uphold the conviction of the appellant under section 9(c) of the Act. The conduct of the prosecution, in so far as it did not send to the chemical examiner separately sealed samples from the different seized packets, is to be deprecated.
8. That we now consider the question of the sentencing of the appellant, but before doing so it would be appropriate to reproduce section 9 of the Act:
"Whoever contravenes the provisions of section 6, 7 or 8 shall be punished with" (a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life." Section 9 of the Act provides for progressively greater punishments depending on the quantity of narcotics. The present case comes within the ambit of section 9(c), since the quantity of narcotics is in excess of one kilogram. The said provision contemplates a number of sentences "death", "imprisonment for life", "imprisonment for a term which may extend to fourteen years", and also a "fine which may be up to one million rupees". The proviso to the said section, however, provides that if the quantity exceeds "ten kilograms the punishment shall not be less than imprisonment for life." Section 9(b) is attracted when the quantity, "does not exceed one kilogram" and provides for "imprisonment which may extend to seven years" and an unspecified amount of "fine". Therefore, if we consider sections 9(b) and 9(c) together, then it is clear that for a quantity exceeding one kilogram an imprisonment for a period exceeding seven years is mandated, and if it exceeds ten kilograms it cannot be less than imprisonment for life. Section 9(c) also provides for imprisonment "which may extend to fourteen years", which would mean that the period of imprisonment in respect of narcotics weighing more than one kilogram, but less than ten kilograms, should be for a period greater than seven years to anything less than fourteen years.
9. In determining the quantum of sentence it would also be appropriate to consider the nature of the narcotic substance, since some narcotics are more dangerous and harmful than others. We are cognizant that the Act does not explicitly state that the type of narcotic substance determines the quantum of sentence, however, the fact that the Act provides for a range of sentences implies as much.
In this very context, one may also refer to another pronouncement of the Lahore High Court in the case titled Ghulam Murtaza and another v. The State reported in PLD 2009 Lahore 362 in which a sentencing policy was approved and devised. The table specifying the nature, quantities and quantum of sentences provided in paragraphs 7 and 8 of the aforesaid judgment runs into so many pages but only relevant portion thereof pertinent to the case in hand is reproduced for the sake of clarity;
Recovered substance
Quantity
Normal sentence
Heroin
Exceeding 01 kilogramand upto 2 kilograms
Imprisonment: RI for 6 years and
Fine: Rs.30,000/ or indefault SI for 6 months
8. For seeking further guidance, one may also refer to the recent judgments of this court passed in Criminal Appeal No. 1624-P/2023 decided on 01.04.2024 and Criminal Appeal No. 1627-P/2023 decided on 18.03 .2024 where age of the accused and clean past record both were considered to be factors relevant for favorably considering the plea of the convict for reduction of sentence. Keeping all that in mind, when one checks that the appellant is arrested and has been convicted for the offence in hand at quite a young age. As per card of arrest he was just 22 years of age when he was arrested. He is admittedly having no past criminal record to his discredit. I have also noted that the primary object behind punishment for an offence should be to reform the individual as well apart from retribution and deterrence. Foregoing in view, the young age of the appellant coupled with the fact that he has no previous history of his involvement in criminal cases are such glaring factors which are sufficient to attract favorable consideration for reducing the quantum of sentence awarded in the instant case. Reliance is placed on Faiz Ahmad and another v. Shafiq ur Rehman reported in 2013 SCMR 583.
9. Resultantly, the sentence of 6 years RI awarded to the appellant for offence under section 9(d) of the Act for recovery of 2kg of Heroin is ordered to be maintained as having been found to be in consonance with the sentence policy as approved in the case-law [2] . Sentence of fine of Rs. 500,000/- imposed under this section is also ordered to be maintained as having been proclaimed in accordance with the minimum level envisaged in the said section of law, however, the 2 years SI awarded for default of payment of fine is reduced to 6 months SI. Likewise, the sentence of 14 years RI upon conviction of appellant under section 11(c) is reduced to 6 years RI and fine is also brought down to Rs. 300,000/-, whereas in default of payment of said fine he shall further undergo 6 months of SI. As already held by the trial court, benefit of section 382-B of the Code is also extended to the appellant.
B) Whether sentence is to run consecutively or concurrently?
10. Apart from above, there is yet another aspect of the case which is necessary to be dealt with and that is the directions of the learned trial court qua running each sentence awarded to the appellant consecutively. In order to understand when multiple sentences awarded in a single trial are to run consecutively or concurrently (as the case may be), appraisal of the provisions of section 35 of the Code is utmost relevance, which read as follows;
"35. Sentence in cases of conviction of several offences at one trial. (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Pakistan Penal Code (XLV of 1860)] sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:
Provided as follows:
Maximum terms of punishment
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) if the case is tried by a Magistrate, the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence."
The above provision of law is abundantly clear that more than one sentences awarded in a single trial are to run one after the other, i.e. consecutively, unless specifically directed by the court for them to run concurrently. With that, the above section of law also provides that in no case the consecutive sentence awarded in multiple offences should be beyond a period of 14 years. And whenever a consecutive sentence awarded in a particular case is found to last beyond the period of 14 years, the same has been held to be bad in law and superior courts have directed the sentences in those cases to run concurrently. Besides, it has also been held that award of sentences in criminal cases and direction for them to run consecutively or concurrently was the discretion of the court which it may exercise judiciously keeping in view the over-all circumstances of each case [3] . Reference is made to the case of Shah Hussain v. The State reported in PLD 2009 SC 460 where it was found that the sentences awarded to the appellant in more than one offences were falling beyond the maximum limit of 14 years as fixed by section 35 ibid and so it was ordered that all such sentences were to run concurrently instead. Similar view was followed by the apex court while deciding the cases of Ishfaq Ahmad v. The State reported in 2017 SCMR 307, MA Zubaid v. Falak Sher and others reported in 2007 SCMR 548, Muhammad Sharif v. the State reported in 2014 SCMR 668 and in the case of Faiz Ahmad and another v. Shafiq ur Rehman reported in 2013 SCMR 583 where young age of the accused was also considered a mitigating circumstance for reducing the sentences and also for ordering them to run concurrently. So much so that in another case, [4] while interpreting the similar provisions of section 397 of the Code for sentence of various offence at different trials, the apex court has ruled as follows;
"12. The aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. However, the position of an accused person is different who while already undergoing a sentence of imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of section 397, Cr.P.C. would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run concurrently with the previous sentence. It is clear from section 397, Cr.P.C. that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently. In that eventuality, the Court has wide power to direct that sentences in one trial would run concurrently. The provision of section 397, Cr.P.C. confers wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one. Thus extending the beneficial provision in favour of the appellant, would clearly meet the end of justice. We, therefore, observe that there is nothing wrong in treating the sentences of imprisonment for life of the convict/appellants on three counts to run concurrently, in view of facts and circumstances discussed above.
This Court in the case of Ghulam Haider v. The State (1984 SCMR 887) while extending the benefit of section 382-B, Cr.P.C. directed that the life imprisonment on three counts of the convict be run concurrently in view of the circumstances of the said case as there was no previous enmity between the parties. In the case of Faiz Ahmed and another v. Shafiq-ur-Rehman and another (2013 SCMR 583) this Court while reducing the sentence of death of the convict to imprisonment for life directed that the sentences awarded in the said case to the convict be run concurrently as the Court had inadvertently omitted ordering running of sentences of imprisonment concurrently. In the case of Mst. Zubaida v. Falak Sher (2007 SCMR 548), the complainant filed petition for obtaining a direction that the life imprisonment awarded to the convict on four counts be run consecutively but this Court dismissed the said petition on the ground that from the facts and circumstances of the case, the imprisonment of life on four counts be run concurrently. Likewise in the case of Muhammad Sharif v. The State (2014 SCMR 668) in suo motu review petition observed as under:-
"It appears that in the judgment under review this aspect of the matter had escaped the notice of this Court. The Suo Motu Review is, therefore, allowed and it is ordered that all the sentences of imprisonment passed against the petitioner shall run concurrently to each other."
11. In another most important pronouncement of the apex court rendered in the case of `Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others' reported in PLD 2015 SC 15 it was authoritatively ruled as under;
"8. Besides the provisions of section 35, Cr.P.C. the provisions of, section 397, Cr.P.C. altogether provide entirely a different proposition widening the scope of discretion of the Court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successively, shall run concurrently. Once the Legislation has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minimize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S.397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus, construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same.
9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two equal interpretations are possible then the favourable to the accused and his liberty must be adopted and preferred upon the contrary one.
10. In the cases of Khan Zaman v. The State (1987 SCMR 1382), Juma Khan v. The State (1986 SCMR 1573) and Muhammad Ittafaq v. The State (1986 SCMR 1627) similar benefit was given to the accused while construing the provision of section 35(2) Cr.P.C.
11. The Peshawar High Court widened this scope on sound reasons in the case of Altaf Hussain v. The State [1987 PCr.LJ 2169] extending the same benefit to an accused, who was already undergoing life imprisonment, awarded by the Special. Military Court and directed that subsequent sentence of 5 years' R.I. awarded by the Judge Special Court Anti-Corruption shall run concurrently with the life imprisonment.
12. Likewise, about the competence of Appellate or Revisional court to order running of sentences concurrently Supreme Court of Pakistan, in the case of Rahib Ali v. The State reported in 2018 SCMR 418, has ruled as follows;
"16. Before parting with this judgment, we may well observe that section 35, Cr.P.C. subject to section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several Punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence may run concurrently (per proviso thereto, in no case be more than 14 years in aggregate) even the Appellate Court while hearing the appeal against the conviction may direct several sentences/punishment handed down in same trial; to run concurrently. Whereas section 397, Cr.P.C.; enables and empowers the trial, and or Appellate/Revisional court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from. In case earlier, conviction was not brought to the notice of the at the time of handing down the subsequent conviction sentence the Trial or Appellate/ Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. read with section 397, Cr.P.C., provided of course, where the trial, or superior courts of appeal have specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively.
17. In the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561-A read with section 35 and or section 397, Cr.P.C. as the case may to ordered such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently.
In this particular case, the apex court has also ruled that "Courts in Pakistan generally take charitable view in the matters of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling powers under section 35 and section 397, Cr.P.C., respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial." [5]
13. Foregoing in view, as the court has already taken a lenient view while reducing substantive sentences awarded to the appellant owing to his young age, clean past and bright chances of reformation, it is further ordered and held that both the sentences awarded to him upon conviction under sections 9(d) and 11(c) of the Act are to run concurrently and not consecutively.
14. For what has been discussed above, the appeal in hand is partially accepted / allowed. The impugned judgment dated 14.03.2024 of the learned Special Court (CNS), Peshawar is modified to the extent as mentioned herein and the present appeal is decided on the terms noted herein above.
JK/114/P Order accordingly.
1. Faiz Ahmad and another v. Shafiq-ur-Rahman and another (2013 SCMR 583)
2. Ghulam Murtaza and another v. The State (PLD 2009 Lah. 362)
3. Zaid Shah alias Jogi v. The State reported in 2020 SCMR 497
4. Sajjad Ikram and others v. Sikandar Hayat and others reported in 2016 SCMR 467
5. Paragraph 13 in the case-law reported in 2018 SCMR 418