2003 PLP 1017 (SCMR)

MUNIR A. SHEIKH, J.

This appeal by leave of the Court is directed against the judgment, dated 21-2-1999 of the Lahore High Court, Lahore through which the appeal filed by the appellant against his conviction under section 9 of the Control of' Narcotic Substances Ordinance, 1996 and sentence of life imprisonment recorded and awarded by the trial Court through judgment, dated 16-10-1996, has been dismissed.

2. Leave was granted to consider whether any benefit of the change of law made during the pendency Of the appeal before the High Court prescribing lesser punishment could be given to the appellant and compliance of provisions of section 103, Cr.P.C. were necessary in this case.

3. Learned counsel for the appellant submitted that the occurrence took place when Narcotic Substances Ordinance, 1996 was in force which prescribed punishment for the offence with which the appellant was charged, life imprisonment or death whereas through Act XXV of 1997 (Control of Narcotic Substances Act, 1997) which was promulgated later on, during the pendency of the appeal, the punishment for such an offence could be lesser than the life imprisonment, therefore, as per the rule laid down in a Division Bench judgment of the High Court reported as Muhammad Arshad v. The State (1999 P.Cr.R. 438), the appellant is entitled to the benefit of the said law and awarded lesser punishment.

4. In support of his this contention, he made reference to judgments reported as Hafiz Muhammad Abdullah v. Imdad Ali Shah and another (1972 SCMR 173) and The Province of East Pakistan v. Muhammad Hossain Mia (PLD 1965 SC 1).

5. In these judgments, it was held that any amendment made during the pendency of appeal, in a criminal case as regards procedural matters would be applicable to such cases, therefore, the rule laid down in these judgments is not applicable to the present case in which we are dealing with the change of law as regard substantive provisions of the law or altering the quantum of, punishment from the one which was prescribed at the time of occurrence under the law which was in force at that time by a subsequent law enforced during the pendency of the appeal. It is well-settled law that in a criminal case, the accused could be awarded punishment as prescribed under the law in force when the offence was committed, for repeal of such law would not affect the legal proceedings already commenced under the repealed laws which could be decided and punishment awarded as prescribed under the said law. The Division Bench judgment of the High Court in the case of Muhammad Arshad (supra) relied upon by the learned counsel for the appellant in our view in .the facts and circumstances of this case does not lay down the law correctly, for while delivering the said judgment, the provisions of section 73 of Act XXV of 1997 were not brought to the notice of the Court, which provides that penalty or sentence greater than the penalty or sentence prescribed under any other law would not be affected by the provisions of this Act, therefore, if there was any ambiguity about the applicability of the subsequent law prescribing lesser punishment as against the punishment prescribed under the law which stood repealed, the same has been removed by this express provision of Act XXV of 1997.

6. Learned counsel then submitted that the contraband item was admittedly recovered at a busy place in the Bazar, therefore, no witness from the locality having been joined in the recovery, therefore, the same was violative of section 103, Cr.P.C. and was of no legal consequence as in this case only two police officials were produced who had allegedly witnessed the recovery. He attempted to bring his case within the purview of rule laid down in the case of Mushtaq Ahmad v. The State (PLD 1996 SC 574) to contend that where the recovery is to be used as corroborative evidence in a case the requirements of section 103, Cr.P.C. of joining two respectable persons of the locality may be dispensed with but in a case where recovery is the substantive evidence to prove guilt of the accused, the provisions of section 103, Cr.P.C. are required to be complied with strictly.

7. Each and every case is to be viewed and examined on its own peculiar facts and circumstances. The recovery in this case was not made from any building or vehicle but from the person of the appellant. In such an event, there is no material on the record to even indirectly suggesting that the huge quantity of heroin weighing one kg. was planted on the appellant falsely involving huge amount. There is also no evidence on the record as to why these police officials would involve the appellant falsely in this case. In our considered view, the non-joining of the persons from the locality in the facts and circumstances of this case had not in any manner adversely affected the case of the prosecution against the appellant. Both the Courts below did not commit any illegality in coming to the conclusion that the prosecution had succeeded in establishing its case against the appellant beyond reasonable shadow of doubt which findings are not based on any illegality such as misreading or non-reading of the evidence on the record.

8. For the foregoing reasons, we find no force in this appeal which is hereby dismissed. N.H.Q./M-740/S Appeal dismissed.