2008 PLP 710 (MLD)

ASIF SAEED KHAN KHOSA, J.

Zahid Hussain appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment, dated 19-10-2004 delivered by the learned Additional Sessions Judge, Multan and was sentenced to imprisonment for life and a fine of Rs.3,00,000 or in default of payment thereof to undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal.

2. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. At the outset it has been submitted by the learned counsel for the appellant that they do not challenge the conviction of the appellant recorded by the learned trial Court but keeping in view the peculiar circumstances of this case they only pray for reduction of the appellant's sentence. As against that the learned counsel appearing for the State have maintained that as long as the conviction of the appellant recorded by the learned trial Court is not disturbed by this Court they have nothing much to say regarding the appellant's sentence as the said matter lies within the discretion of the Court.

3. According to the prosecution the appellant had been apprehended red-handed while in possession of heroin weighing five kilograms and subsequently samples of the recovered substance were found by the Chemical Examiner to contain heroin. The recovery of narcotic substance from the possession of the appellant was proved before the learned trial Court by two officials belonging to the Anti-Narcotics Force who had not only made consistent statements but they also had no background of ill-will or bitterness against the appellant so as to prompt them to falsely implicate the appellant in a case of this nature. In these circumstances the learned trial Court had felt convinced that the prosecution had succeeded in establishing the appellant's guilt to the hilt and we have not been able to take any legitimate exception to the said conclusion of the learned trial Court. In this view of the matter we have found the learned counsel for the appellant to be quite justified in not challenging the appellant's conviction recorded by the learned trial. Court.

4. We have adverted to the question of sentence of the appellant with the care it deserves and we have noticed in this context that admittedly the appellant is a young man and is a first offender. The proviso to section 9(c) of the Control of Narcotic Substances Act, 1997 indicates the sentencing scheme contemplated by legislature and according to the same if the quantity of the narcotic substance recovered in a case exceeds ten kilograms then the punishment for the offender cannot be less than imprisonment for life. The said proviso suggests that for a quantity of narcotic substance less than ten kilograms the sentence to be awarded to the offender can be less than imprisonment for life. As a matter of fact the provisions of section 9(c) expressly provide that in cases attracting the said provisions the sentence may also extend to fourteen years' imprisonment which clearly suggests that in an appropriate case, depending upon the quantity of the recovered substance, a sentence of imprisonment for a period of less than fourteen years can also be passed by a Court.. In the case in hand the recovered substance weighed five kilograms and the appellant is a young man and first offender and, therefore, we have felt persuaded to suitably reduce his sentence of imprisonment as well as of fine.

5. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 recorded by the learned trial Court but the same is partly allowed to the extent of the appellant's sentence which is reduced to rigorous imprisonment for ten years and a fine of Rs.1,00,000 (Rupees one hundred thousand only) or in default of payment thereof to undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. has already been extended to the appellant by the learned trial Court. This appeal is disposed of in these terms. H.B.T./Z-2/L Order accordingly.