2021 P Cr (PLP)

CH. ABDUL AZIZ, J.

Zulfiqar Ali (appellant) involved in case FIR No.146/2017 dated 16.04.2017 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as ("CNSA, 1997") at Police Station City Mailsi, was tried by learned Additional Sessions Judge, Mailsi. Trial court vide judgment dated 06.06.2018 proceeded to convict and sentence the appellant in the following terms:- "Under section 9(c) of CNSA, 1997 to suffer rigorous imprisonment for 04-years and 06-months with the direction to pay fine of Rs.20,000/- and in default whereof to further undergo 5-months' SI. Benefit of section 382-B. Cr.P.C. was also extended in favour of the appellant". Challenging his conviction and sentence, appellant filed the instant appeal.

2. Briefly stated the case of the prosecution as unveiled by Muhammad Hanif ASI (PW.4) in FIR (Exh.PB) is to the effect that on 16.04.2017 he along with Mazhar Hussain 1487/C, Waseem Abbas 1295/C and Altaf Hussain 1456/C was present in an official vehicle at Multan Road Mailsi in connection with patrolling duty; that in the meantime he received secret information that Zulfiqar Ali (appellant) having Charas with him was standing at Minor Road near Madrassa Abu Horerah, if raided, could be arrested; that upon receipt of such information, Muhammad Hanif ASI along with the afore-mentioned officials conducted raid and apprehended the appellant; that from the shopping bag in his right hand, Charas weighing 1090 grams was recovered, out of which 55 grams were separated for chemical analysis. Thereafter, Muhammad Hanif ASI drafted complaint (Exh.PA) and sent the same to the police station through Altaf Hussain 1295/C for the registration of formal FIR.

3. Subsequent to the registration of formal FIR (Exh.PB), Muhammad Afzal SI (PW.3) conducted investigation of this case. He visited the spot, prepared rough site plan (Exh.PD) and formally arrested the appellant. He also recorded the statements of prosecution witnesses under section 161, Cr.P.C. and finding the appellant involved in the case got submitted report under section 173, Cr.P.C. Before the trial court, prosecution in order to prove its case against the appellant produced four PWs, namely, Ijaz Hussain 225/HC (PW.1) who was serving as Station Clerk/Moharrar at the eventful time, Mazhar Hussain 1487/C (PW.2) and Muhammad Hanif ASI (PW.4) who are the witnesses of recovery and Muhammad Afzal SI (PW.3) who is Investigating Officer of the case. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and involvement in the case. Appellant neither made statement under section 340(2) of Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.

4. At the very outset, learned counsel for the appellant has opted not to object conviction of the appellant but prayed for the reduction in his sentence.

5. On the other hand, learned Additional Prosecutor General has opposed the contention raised on behalf of the appellant and supported the impugned judgment.

6. Arguments heard. Record perused.

7. Though learned counsel for the appellant has not challenged the conviction awarded by the learned trial court and rather prayed for the reduction of sentence, however, in order to satisfy ourselves we have meticulously reviewed the record of the case. It is borne out from the record that in order to prove the recovery of Charas weighing 1090 grams, Mazilar Hussain 1487/C (PW.2) and Muhammad Hanif ASI (PW.4) appeared in the dock. It evinces from their statements that they successfully provided the detail of events pertaining to the arrest of appellant, recovery of Charas and its securing through parcel. Though the prosecution witnesses were cross-examined at length by the defence, however, they remained consistent and gave no leverage to the defence. The positive report from the office of PFSA (Ex.PE) with regard to parcel sent for chemical analysis is yet another factor to prove the guilt of the appellant. No doubt the recovery was effected from a public place and none from there was associated in the proceedings but the appellant cannot get benefit out of it as according to section 25 of CNSA, 1997, the provisions of section 103, Cr.P.C. are made inapplicable. Therefore, we are persuaded to hold that the appellant was rightly convicted by the learned trial court under section 9(c) of CNSA, 1997.

8. As far as quantum of sentence of the appellant is concerned, it is noticed that the appellant is first offender as no report/record has been produced during trial to show that the appellant was previously convicted or involved in cases of like nature. Perusal of the record also shows that appellant was arrested at the spot on the day of recovery i.e. 16.04.2017 and he was released on post-arrest bail by learned Additional Sessions Judge, Mailsi vide order dated 06.11.2017. According to record, the appellant was again taken into custody upon passing of the impugned judgment on 06.06.2018 and since then he is behind bars. From this aspect, it manifests that, even without calculating the remissions, appellant is incarcerated for the last three years. Even otherwise, the appellant has suffered a lot due to the pendency of this case. In these circumstances, while relying upon the cases reported as Khuda Bakhsh v. The State (2015 SCMR 735) and State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi (PLD 2017 Supreme Court 671), we take a lenient view qua the sentence of the appellant in order to meet the ends of justice. Consequently, by dismissing Criminal Appeal No.107 of 2019, we maintain conviction of Zulfiqar Ali (appellant) under section 9(c) of CNSA, 1997, but reduce his sentence to the period already undergone by him. However, the appellant shall pay the amount of fine on the same terms and conditions as fixed by the learned trial court. SA/Z-11/L Sentence reduced.