P L D 2008 Supreme Court 107 (PLP)

ABDUL HAMEED DOGAR, J.

Through this jail petition, petitioner Iqbal Khan seeks leave to appeal against the judgment dated 27-1-2006 passed by a learned Division Bench of Peshawar High Court Peshawar, whereby, Criminal Appeal No.533/2005 filed by him was dismissed and the conviction and sentence awarded by the trial Court was maintained.

2. Briefly stated, the facts of the case of the prosecution are that on receipt of complaints that petitioner deals in narcotics business a raiding party consisting of Rashid Gul S.H.O, lady constable Mst. Mumtaz Begum and others was constituted under the supervision of A.S.P. Kohat, which on 13-3-2004 at 3-20 A.M. raided the house of the petitioner and recovered charas wrapped in plastic envelops from a residential `kotha'. The said charas consisted of a slab and 40 `purees' were weighed and found to be 1270 grams. Four grams were separated and sent for chemical examination. A case under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be called as `the Act') was registered against petitioner vide F.I.R. No.188 dated 13-3-2004. On completion of investigation, the petitioner was sent up to face trial before the Court of learned Additional Sessions Judge-II, Kohat.

3. The prosecution in order to establish its case examined Sakhiur Rehman A.S.-I (P.W.1) and Rashid Gul S.H.O. (P.W.-2).

4. In his statement recorded under section 342, Cr.P.C, petitioner denied the case of the prosecution and claimed innocence. He neither opted to record statement on Oath as required under section 340(2), Cr.P.C. nor led any evidence.

5. On the conclusion of the trial, petitioner was convicted under section 9(c) of the Act and sentenced to imprisonment for five years and a fine of Rs.5,000 or in default to further undergo simple imprisonment for one year. He was also sentenced under section 75, P.P.C. to rigorous imprisonment for one year. It was also directed that assets of petitioner were forfeited under section 19 of the Act. However, benefit of section 382-B, Cr.P.C. was extended in favour of petitioner.

6. On appeal the learned High Court maintained the convicted and sentence vide impugned judgment as stated above.

7. We have heard Hafiz S.A. Rehman, learned Sr. Advocate Supreme Court on behalf of petitioner and Sardar Shaukat Hayat Khan, learned Addl. A.-G., N.-W.F.P. at length and have gone through the record and proceedings of the case in minute particulars.

8. At very outset learned counsel for the petitioner contended that he does not dispute the conviction and sentence under section 9(c) of the Act but urged that the reasons for awarding the sentence under section 75, P.P.C. that petitioner is proved to be habitual offender is not correct as neither judgment with regard to previous conviction has been placed on record nor particulars of previous conviction have been produced. According to him, according to the list produced by prosecution except one case, remaining cases are still pending, therefore, accused facing trial cannot be presumed to be a previous convict. He further contended that neither such charge was mentioned in the charge sheet as required under section 75, P.P.C. nor compliance of section 511, Cr.P.C. was made. He further contended that since no such question was put to the petitioner in his statement under section 342, Cr.P.C. as such he cannot be convicted on that account.

9. Learned Additional Advocate General, N.-W.F.P. appearing on behalf of the State controverted the above contentions and supported the impugned judgment.

10. On perusal of record we are of the view that it is essential for the Court while convicting and sentencing an accused under section 75, P.P.C. to set out in its judgment the particulars of each previous conviction which is relied upon for the purpose of awarding sentence. In the instant case prosecution has failed to prove that petitioner was a previous convict of an offence falling within the provisions of Chapters XII, and XVII, P.P.C. as such he cannot be convicted under section 75, P.P.C. Moreover, the mode to prove previous convictions as required under section 511, Cr.P.C. has not been applied properly. According to this provision of law it is mandatory to produce a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered. Since the said mode has not been applied in this case, therefore, conviction and sentence under section 75, P.P.C. is not sustainable in law which is set aside. As regards forfeiture of assets under section 19 of the Act is concerned, the prosecution has failed to produce any cogent evidence showing that the petitioner has derived the assets from trafficking the narcotics substances. Not even a single evidence has been produced to substantiate this charge. As such sentence of forfeiture of assets of petitioner under section 19 of the Act is also set aside.

11. With the above modification in the conviction and sentence of petitioner, this petition is converted into appeal and is partly allowed. However, conviction and sentence under section 9(c) of the Act is maintained. N.H.Q./I-14/SC Petition partly allowed.