AADIL Versus State
ORDER
ROZI KHAN BARRECH, J .--- This criminal appeal is directed against the judgment dated 01.11.2019 (hereinafter "the impugned Judgment") passed by learned Special Judge, CNSA (MCTC) Turbat, (hereinafter "the trial Court") in MCTC (CNS) Case No.18 of 2019, FIR No.90 of 2019 Police Station Turbat, whereby the appellant Aadil son of Abdul Rauf has been convicted under section 9-c of the Control of Narcotic Substances Act, 1997 ("the Act") and sentence to suffer RI for fifteen (15) years with fine of Rs.50,000/- (Rupees Fifty Thousand Only) or in default of payment of fine to further undergo SI for five (05) months. Benefit of section 382(B), Cr.P.C., was extended in favour of the appellant.
2. Briefly stated the facts of the case are that on 29.06.2019 the complainant Abdul Sattar Dashti IP/SHO along with other police officials were patrolling the area under the supervision of DSP Muhammad Qasim. During patrolling, they received secret information that Aadil son of Abdul Rauf (appellant) is selling drugs along with his companions in his quarter/house situated at Sami Para Singani Sar Turbat. On such information, they raided the house of the accused/ appellant at about 12:30 a.m., and found a person present in a room. On inquiry, he told his name as Aadil (appellant) and on checking 15 packets of Charas were recovered from the room which were taken into possession. On checking of other room, two persons were found who told their names as Nizam son of Islam and Shahzaib son of Malik Mazar. On their personal search, pistols and rounds were recovered from their possession which was also taken into possession. On weighing, each packet of Charas came to 1000 grams, total 15000 grams. The IP/SHO sent Marasila to Police Station City Turbat District Kech. On the Marasila of complainant IP/SHO vide FIR No.90 of 2019 for an offence under section 9-c of the Act was registered on 19.06.2019 at Police Station City Turbat District Kech.
3. After completion of investigation, challan was submitted before the trial Court. Charge was framed and read over to the accused to which he pleaded not guilty and claimed justice through trial.
4. At the trial, the prosecution examined as many as four (04) witnesses. On completion of prosecution's evidence the appellant was examined under section 342, Cr.P.C., wherein the accused denied the allegations made against him. The appellant did not record his statement on oath nor lead any witness in his defence.
5. On conclusion of the trial, the trial Court convicted and sentenced the appellant vide impugned judgment dated 01.11.2019. Hence this appeal.
6. We have heard the learned counsel for the parties and have gone through the record with their able assistance. It has alleged against the appellant/accused that 15000 grams of Charas were recovered from his possession, while the learned trial Court convicted the accused/appellant under section 9-c of the Act i.e. 15 years RI. The relevant portion of the impugned judgment of the trial Court is reproduced herein below:-
"Since the prosecution has succeeded to prove its case against the accused without any shadow of doubt and point No.1 has been resolved in affirmative, therefore, the accused is liable to be convicted and sentenced. However, keeping in view the mitigating circumstances that police neither associated any private person as witness nor obtained search warrant, therefore, a lenient view is taken in favour of accused while awarding sentence to him. Hence, the accused Aadil son of Abdul Rauf is convicted under section 9(c) of the CNS Act, 1997 and sentenced to suffer fifteen (15) years RI and fine of Rs.50,000/- (Rupees Fifty Thousand Only) or in default of payment of fine, he shall further suffer SI for five (05) months. Benefit of section 382-B Cr.P.C., is extended in favour of accused"."
7. The question arises here that whether a sentence less then imprisonment of life can be awarded to a convict with contraband exceeded 10 kg in weight. The Act was enacted and notified in the official gazette of 11.07.1997. The object and purpose, as mentioned in the preamble, was to consolidate and amend the laws relating to narcotic drugs and psychotropic substances. Moreover, the object and purpose was also to regulate the treatment and rehabilitation of narcotic addicts and the matters connected therewith and incidental therewith. Section 7 prohibits the import into, export from and transporting within Pakistan of any narcotic drug, psychotropic substance or controlled substance, save in accordance with the rules made under subsection (2) ibid. Trafficking or financing the trafficking of narcotic drugs is prohibited under section 8. Section 9 describes distinct punishments for contravention of the prohibition contained in sections 6, 7 and 8 of the Act. Punishments are divided into three categories i.e. in clauses (a), (b) and (c) of section 9. Clause (a) of section 9 prescribes punishment of imprisonment which may extend to two years or with fine or with both if the quantity of narcotic drugs, psychotropic substance or controlled substance is one hundred grams or less. Clause (b) of section 9 is in respect of narcotic drugs, psychotropic substances or controlled substances which exceed one hundred grams but do not exceed one kilogram and prescribes a punishment of imprisonment which may extend to seven years besides imposition of fine. Likewise clause (c) of section 9 is in respect of a quantity which exceeds the limit specified in clause (b) i.e. more than one kilogram and the punishment prescribed is death, or imprisonment for life or imprisonment for a term which may extend to 14 years and the person shall also be liable to a fine up to rupees one million. The proviso of section 9 provides that if the quantity exceeds ten kilogram, then the punishment shall not be less than imprisonment for life.
8. In the case in hand, the recovery allegedly was effected from the accused/appellant is exceeded of 10 kg and it was 15 kg, the law provide it sentence not less than imprisonment for life. Command of law escaped notice of the learned trial Judge. The learned DPG who is appearing on behalf of the State has contended that the learned Special Court, by adopting an extremely lenient and stereotype approach, has defeated the object and purpose of the enactment of the Narcotic Substances Act, 1997 (hereinafter the Act of 1997").
9. When confronted with the above, the learned counsel appearing on behalf of the appellant was not able to give any plausible explanation for the mode adopted by the learned Special Judge for determining the quantum of sentence in the case.
10. We are afraid that the methodology adopted by the learned Special Judge in the context of handing down sentences in the appeals is not in consonance with the broad guidelines and law enunciated by the august Supreme Court. Reliance is placed on a case State through Director General ANF Peshawar v. Muhammad Ramzan and others 2019 SCMR 1295, State through Regional Director ANF Peshawar v. Sohail Khan 2019 SCMR 1288 and State through Director ANF Peshawar v. Fakhar Zaman 2019 SCMR 1122.
For the above reasons, the impugned judgment dated 01.11.2019 passed by the learned Special Judge, CNSA (MCTC) Turbat, is set aside and the case is remanded to the learned trial Court who after affording opportunity of hearing to the parties shall decide the case according to law.
SA/138/Bal. Case remanded.