P L D 2011 Lahore 544 (PLP)

SH. AHMAD FAROOQ, J.

Through the instant petition, under section 426, Cr.P.C., the petitioner/Rana Nasarullah has sought suspension of the operation of the impugned judgment dated 12-8-2008, whereby the learned Judge Special Court, Control of Narcotic Substances, Lahore, at the conclusion of the trial in case F.I.R. No.3 of 2004, dated 13-3-2004, registered in Police Station, ANF, Faisalabad, under section 9(c) of the Control of Narcotic Substances Act, 1997, has convicted and sentenced him to imprisonment for life. He has also been directed to pay Rs.10,00,000 as fine, and in case of default, to undergo further simple imprisonment for six months.

2. The learned counsel for the petitioner argued that the impugned judgment is the result of misreading of the evidence available on the record. He further argued that the petitioner is languishing in jail since 13-3-2004 and there is no chance of fixation of his appeal in the near future, as the same pertains to the year 2008. He has also referred to section 426(1-A)(c), Cr.P.C, to contend that the petitioner has become entitled for the suspension of his sentence, on statutory ground of delay in decision of the appeal. He finally, submitted that as the petitioner has no previous criminal history, his case does not fall within the ambit of 1st proviso to section 426(1A)(c) of the Cr.P.C., which excludes "hardened", "desperate" or "dangerous criminal" from being extended the benefit of the above provision of law.

3. Conversely the learned Special Prosecutor, ANF assisted by learned Deputy Prosecutor General, Punjab, vehemently opposed the instant petition, by arguing that the allegation of possession of 15 k.g. of 'charas' has successfully been proved by the prosecution against the present petitioner. He further argued that the moment the impugned judgment was announced by the learned trial Court; it had made the initial presumption of innocence of the petitioner redundant. He contended with vehemence that the petitioner is not entitled to the benefit of section 426(1-A), Cr.P.C. as his case falls within the definition of "dangerous criminals

4. Arguments heard. Record perused.

5. During the hearing of the instant petition, the learned counsel for the petitioner has mainly stressed upon the suspension of the sentence, on the ground of statutory delay in decision of the appeal. Prior to determining the applicability of subsection (IA) of section 426, Cr.P.C. to the present case, it would be advantageous to reproduce hereunder the relevant provision of law: 426(1A)

An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced-- (a) ??.. (b) ??. (c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction: Provided that the provisions of the foregoing paragraph shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who in the opinion of the Appellate Court, is a hardened-desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. (Underlining is for emphasis). From the bare perusal of the proviso of subsection (1-A) of section 426, Cr.P.C., it is revealed that a person, who, in the opinion of the Appellate Court, is a "hardened"/"desperate" or "dangerous criminal", is not entitled to get benefit from the aforesaid provision of law. In the case of Omair Ahmed Siddiqui v. State (1996 PCr.LJ. 22), it was held that the legislature used three adjectives hardened, desperate or dangerous independently and accused should be denied bail if he falls within clutches of one or more adjectives. In this context, prior to adjudging fitness of the case of a convict/appellant, involved in drug trafficking, for the suspension of his sentence, on statutory ground, the Court has to examine all his acts and deeds so as to satisfy itself that he is not a "hardened", "desperate" or "dangerous criminal". In order to determine whether the present petitioner is a "hardened" or "desperate" or "dangerous criminal", we would like to first dilate upon the characteristics of persons falling within the above said three categories. A "hardened criminal" is one who has developed rigid behavioral pattern toughened through experience and not likely to change. All those persons, who have become rigid and devoid of any compassion could also be termed as "hardened". Similarly, a criminal could be considered "desperate", if he is willing to take risk fearlessly out of helplessness and despair. A "desperate criminal" could commit an act as a last resort without realizing its consequences. However, the word "dangerous criminal" connotes a person, who is able to cause harm and injury having horrible effects against the society. The definition of "dangerous criminal" can also be ascertained with reference to conduct of an accused at the time he was arrested, his previous conduct, nature of offence with reference to its effect on society, his faithfulness or betrayal with reference to moral or official duties. This expression could also be extended to a person from whom society at large is unsafe or who is involved in acts, which are squeezing the beauty of humanity. So, it is the gravity of an offence of whatsoever nature, which brings an offender within the category of a "dangerous criminal". When viewed on this touchstone, even the first offender may be treated as a "dangerous criminal". That is why the Legislature has excluded this category of criminals/offenders from the benefit of suspension of sentence as provided in subsection (1A)(c) of section 426 of the Cr.P.C.

6. Now adverting to our basic moot point i.e. whether the present petitioner falls within the definition of "hardened", "desperate" or "dangerous criminal", we have gone through the case of the present petitioner with an analytical approach. Admittedly, there is no previous criminal history of the present petitioner/appellant, and he is a first offender. As such, he cannot be termed a "hardened criminal". Similarly, as the convict/petitioner is involved in drug. trafficking, he cannot be considered a "desperate person" for the reason that commission of such an offence requires pre-planning and meditation. However, the circumstances of the instant case have led us to hold the present petitioner a "dangerous criminal" as he was found in possession of a huge quantity of 15 kg. of 'Charas' . He seems to be involved in drug trafficking at a large scale. He has committed an offence which has a direct impact on the public at large, especially the young generation of this country. Keeping in view its impact, it cannot be equated with other offences, like "theft" or "hurt", which have an impact on individuals alone and have no bearing on public at large. A drug peddler is so dangerous that he chooses drug trafficking as a source of his income knowingly that such an activity is not only strictly prohibited by law but is also against the norms of morality and the injunctions of Islam as have been ordained in the Holy Quran and ' Sunnah'. Needless to mention here that such an illegal activity not only results in destroying the physical and mental abilities of an individual, but also causes serious repercussion on the fabric of social life of innocent people of a country. A person dealing in narcotics is so callous that just for gaining huge monetary benefit in an easy way and in a short period of time, he spreads dangerous drugs for consumption of innocent citizens, even with whom he has no personal grudge or enmity. The tendency of adopting drug trafficking as a profession is speedily increasing day by day and it is proving to be a great menace to the whole nation. To save innocent citizens to be the victims of drug traffickers, this tendency must be curbed and persons involved in such like a heinous offence should be dealt with iron hand. In the circumstances, we hold that case of the present petitioner falls within the ambit of proviso to subsection (1-A)(c) of section 426, Cr.P.C. Hence, he is not entitled to be released on bail by way of suspension of his sentence.

8. For the foregoing reasons, the instant petition has no force and the same is accordingly, dismissed. H.B.T./N-57/L???????????????????????????????????????????????????????????????????????? Petition dismisse