PLJ 2022 Cr.C. 1335 (DB)
[Lahore High Court, Multan Bench]
Present:
Sohail Nasir and Shakil Ahmad, JJ.
HAIDER
ALI--Appellant
versus
STATE
and another--Respondents
Crl. A.
No. 654 of 2020, heard on 13.4.2022.
Control of Narcotic Substances Act, 1997 (XXVII of 1997)--
-----Ss. 6, 7, 8 & 9--Charge and conviction--Principles--Various
types of contraband--Case remand of--In case of various type of contraband no
distinction is there under Section 9 of the Act however the discretion has been
left at the Court for quantum of sentence if quantity does not exceed 10
kilograms, who keeping in view the kind of recovered material, as effect on
human lives and society or other considerations as the case may be, has to
ascertain the amount of punishment--In case of recovery of contraband of more
than one kind, it will be considered single recovery against an offender with
accumulative weight--The trial Court has committed serious illegality while
convicting the appellant on two counts therefore, all concerned to the matter
are in agreement that it is a case of remand--The case is remanded back to the
learned trial Court with direction to rewrite the judgment after giving a
proper right of hearing to both the sides. [Pp.
1341 & 1342] A, B, C & D
Rana Asif Saeed and Tahir
Hussain Khan Malazai Advocates for Appellant.
Mr. Ashfaq Ahmad Malik Deputy
Prosecutor General for State.
Mr. Khalid Iban-e-Aziz Advocate
Special Prosecutor ANF (on Courts call)
Syed Badar Raza Gillani Advocate/Amicus
Curiae.
Date of hearing: 13.4.2022.
Judgment
Sohail Nasir, J.--This
Criminal Appeal under Section 48 of the Control of Narcotic Substances Act,
1997 (Act) filed by Haider Ali (appellant) is directed against judgment
dated 10.12.2020 passed by the learned Additional Sessions Judge/Judge Special Court
(CNS) Khanewal on the basis whereof he was convicted and sentenced as under:
(i) Under Section 9(c) of the Act for possessing the
Heroin 5324 grams to undergo 10 years R.I[1]
and fine of Rs. 1,10,000/- (one lac and ten thousands). In default of payment
of fine he was ordered to further undergo 10 months S.I.[2]
(ii) Under Section 9(c) of the Act for keeping 2680
grams of Charas to undergo 5 years and 6 months R.I and fine of Rs. 25000/- (twenty
five thousands). In default of payment of fine he was ordered to further
undergo 5 months and 15 days S.I.
2. It was directed that sentences of appellant shall run
concurrently and benefit of Section 382-B,[3]
Cr.P.C.[4]
shall be available to him. The conviction is ultimate result of the prosecution
that appellant has faced in case FIR[5]
No. 82 (PC) recorded on 05.04.2020 under Section 9(c) of the Act at Police
Station Makhdoom Pur district Khanewal.
3. In brief prosecution’s case was that on 05.04.2020 at about
03:40 pm, from the area of ‘Mouza Kot Abdullah’ appellant was arrested and from
his possession Heroin weighing 5324 grams and ‘Charas’ weighing 2680 grams were
recovered.
4. As evident from opening paragraph of this judgment,
appellant has been convicted on two counts, one for recovery of Heroin and other
for possessing the ‘Charas’. On 17.03.2022 when criminal Miscellaneous (01 of
2022) for suspension of sentences file by appellant came up for hearing, the
following order was passed by this Court:
“We have observed
that in this case from the possession of applicant Heroin weighing 5324 grams
and Charas weighing 2680 grams was recovered in one and the same transaction on
05.04.2020. The learned trial Court has convicted the appellant for both the recoveries
independently as under:-
(i) Under Section
9-C of CNSA 1997 to undergo 10 years R.I and fine of Rs. 1,10,000/-(Heroin).
(ii) Under Section
9-C of CNSA 1997 to undergone 5 years R.I and fine of Rs. 25,000/-(Charas).
2. The legal question before us is that if
more than one kind of contraband is recovered from an accused whether it shall
be deemed to be a single recovery of contraband as Section 9-C of CNSA 1997
provides the punishment without describing the nature and kind of contraband.
3. We therefore, direct both the sides to
assist the Court on this legal proposition. For better assistance and to arrive
at an authoritative decision we appoint Syed Muhammad Badar Gillani Advocate as
Amicus Curiae who is present in Court and has been informed accordingly.”
5. Syed Badar Raza Gillani learned Amicus
Curiae,[6]
Mr. Khalid Iban-i-Aziz Advocate for ANF,[7]
Mr. Ashfaq Ahmad Malik Deputy Prosecutor General, Rana Muhammad Asif Saeed and
Mr. Tahir Hussain Khan Malazai Advocates for appellant jointly contended that
as under Section 9(c) of the Act no distinction has been drawn with regard to
variant of material recovered from an offender and that the slab for sentences
are only with reference to quantity therefore, if an accused is found in
possession of more than one kinds of contraband, that shall be deemed to be
single recovery and accused cannot be convicted for each kind separately.
6. HEARD.
7. To resolve the proposition
involved, we have to examine the scheme of the law. The Act was promulgated on
07th July, 1997 with a preamble to consolidate and amend the laws relating to
narcotic drugs and psychotropic substances and control the production, processing
and trafficking of such drugs and substances. It was for that reason that by
way of Section 78 of the Act, The Opium Act, 1857 (XIII of 1857), The Opium
Act, 1878 (I of 1878), The Dangerous Drugs Act, 1930 (II of 1930) and the
Control of Narcotic Substances Ordinance, 1997 (XLIII of 1997) were repealed
and at the same time under Section 76 the provisions of the Act were stated to
have effect notwithstanding anything contained in any other law for the time
being in force. It means that every case with regard to narcotic drug,
psychotropic substance or controlled substance shall be governed under the
provisions of the Act.
8. For more effective discussions,
Section 9 of the Act is reproduced as under:
“9. Punishment
for contravention of Section 6, 7 and 8: Whoever contravenes the
provisions of Sections 6, 7 or 8 shall be punishable with---
(a) imprisonment which may extend to two
years, or with fine, or with both, if the quantity of the narcotic drug,
psychotropic substance or controlled substance is one hundred grams
or less;
(b) imprisonment which may extend to seven
years and shall also be liable to fine, if the quantity of the narcotic
drug, psychotropic substance or controlled substance exceeds one
hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life, or
imprisonment for a term which may extend to fourteen years and shall also be liable
to fine which may be up to one million rupees, if the quantity of narcotic
drug, psychotropic substance or controlled substance exceeds the
limits specified in clause (b):
Provided that if the quantity exceeds ten
kilograms the punishment shall not be less than imprisonment for life”
9. Plain reading of the above referred Section of law provides the
consequences in case of contravention of the provisions of Sections 6, 7 and 8 which
for better understanding are also reproduced as under:
“6. Prohibition of possession of
narcotic drugs, etc.: No one shall produce, manufacture,
extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver
on any terms whatsoever, transport, dispatch, any narcotic drug,
psychotropic substance or controlled substance, except for medical,
scientific or industrial purposes in the manner and subject to such conditions
as may be specified by or under this Act or any other law for the time being in
force.
7. Prohibition of import or export
of narcotic drugs, etc: (1) No one shall---
(a) import into Pakistan
(b) export from Pakistan
(c) transport within Pakistan
(d) tranship any narcotic drug,
psychotropic substance or controlled substance save in
accordance with rules made under subsection (2) and in accordance with the
conditions of any licence, permit or authorization for that purpose which may
be required to be obtained under those rules.
(2) The Federal Government may make rules
permitting and regulating the import into and export from Pakistan, transport
within Pakistan and transhipment of narcotic drugs, Psychotropic substance
or controlled substances, and such rules may prescribe the ports or places
at which any kind of narcotic drug, psychotropic substance or controlled
substance may be imported, exported, transported within Pakistan or
transhipped, the form and conditions of licence, permit or authorities by which
such licences, permits or authorization may be granted, the fees that may be
charged therefore, any other matter required to have effective control of the
Federal Government over such import, export, transportation and transhipment.
8. Prohibition on trafficking or
financing the trafficking of narcotic drugs, etc: No one Shall---
(a) organize, manage, traffic in, or
finance the import, transport, manufacturing or trafficking of, narcotic
drugs, psychotropic substances or controlled substances; or
(b) use violence or
arms for committing or attempt to commit an offence punishable under this Act.
10. In all the earlier quoted
provisions of the Act, three kinds of contraband have been shown as:-
➢ Narcotic Drugs
➢ Psychotropic Substances and
➢ Controlled Substances
11. All these kinds have been
defined under Section 2 of the Act as follows:
“2(k) “controlled substance”
means any substance which may be used for the production or manufacture of narcotic
drugs or psychotropic substance;
2(s) “Narcotic drug” means
coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs;
2(z-a)”psychotropic substance”
means the substance, specified in the Schedule to this Act, and such substances
as the Federal Government may, by notification in the official Gazette, declare
to be a psychotropic substance”
12. The study of Section 9 of the
Act does not make any distinction that in case of which variant (Narcotic
Drugs, Psychotropic Substances, Controlled Substances) what will be the
amount of punishment like we have noticed under Article 4 of The Prohibition
(Enforcement of Hadd) Order, 1979 where in case of specific quantity of
intoxicant the punishment is similar but once exceeds the punishment varies
keeping in view the kind of material. It is as under:
“4. Owning or possessing intoxicant. Whoever
owns, possesses or keeps in his custody any intoxicant shall be punished with
imprisonment of either description for a term, which may extend to two years, or
with whipping not exceeding thirty stripes, and shall also be liable to fine:
Provided that nothing contained in this
Article shall apply to a non-Muslim foreigner or to a non-Muslim citizen of
Pakistan who keeps in his custody at or about the time of a ceremony prescribed
by his religion a reasonable quantity of intoxicating liquor for the purpose of
using it as a part of such ceremony:
Provided further that if the
intoxicant in respect of which the offence is committed is heroin, cocaine,
opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or
cocaine or one kilogram in the case of opium or coca leaf, the offender shall
be punishable with imprisonment for life or with imprisonment which is not less
than two years and with whipping not exceeding thirty stripes,
and shall also be liable to fine”
(Emphasis applied)
13. “Neminem opertet legibus
esse sapientiorem’ is a Latin phrase that means “no man ought to be
wiser than the laws” so it cannot be said that while making the Act the legislatures
were not cognizant of the situation. If they had to limit the sentence in the
light of any specific material/kind they were supposed to specify it clearly as
has been observed under the provisions of the Prohibition (Enforcement of Hadd)
Order, 1979 (ibid). Therefore, in case of various type of contraband no
distinction is there under Section 9 of the Act however the discretion has been
left at the Court for quantum of sentence if quantity does not exceed 10
kilograms, who keeping in view the kind of recovered material, its effect on
human lives and society or other considerations as the case may be, has to
ascertain the amount of punishment and it is needless to say that sentencing is
not an easy process but difficult stage for a judge and is an attempt to juggle
the objects of various sizes while walking on a tight rope which is being
shaken at both ends.
14. We, therefore, feel no
difficulty to hold that in case of recovery of contraband of more than one
kind, it will be considered single recovery against an offender with
accumulative weight.
15. The next question
is with regard to determination of period of imprisonment in view of sentencing
policy.[8]
The legality of the Judgment passed in Ghulam Murtaza case is under
consideration before the Honourable Supreme Court of Pakistan[9]
which appears to have been suspended as evident from copy of an order dated
31.08.2009 passed in Criminal Appeal No. 218-L of 2009. For the sake of
arguments, if it is presumed that still the sentencing policy holds the field,
even then question is not difficult to be answered for the reason that the said
policy does not cover the proposition in hand, like in the case of ‘Amphatamine’
(ICE), so it will be within the discretion of the Court to determine
that what the quantum of sentence has to be keeping in view the features of
each case.
16. Coming to the merits of the case although various
contentions have been raised by learned counsel for appellant like that chain
of safe custody has been not been proved and summoning of record of ‘Roznamcha’
of the Police Station with reference to report
dated 08.04.2020 but as the learned
trial Court has committed serious illegality while convicting the appellant on
two counts therefore, all concerned to the matter are in agreement that it is a
case of remand. Therefore, this Criminal Appeal is allowed.
Impugned judgment is set aside.
The case is remanded back to the learned trial
Court with direction to rewrite the judgment after giving a proper right of
hearing to both the sides by attending and responding all the contentions to be
raised by them and without being influenced from its earlier judgment.
(K.Q.B.) Appeal allowed
[1]. Rigorous imprisonment.
[2]. Simple imprisonment.
[3]. Where a Court decides to pass a sentence
of imprisonment on an accused for an offence it shall take into consideration
the period, if any, during which such accused was detained in custody for such
offence.
[4]. Code of Criminal Procedure (Act V of
1898).
[5]. First Information Report registered under
Section 154, Cr.P.C.
[6]. It’s a Latin word that means “Friend of
the Court”.
[7]. Anti Narcotics Force.
[8]. Ghulam Murtaza & another vs.The State
PLD 2009 Lahore 362.
[9]. Criminal Petition No. 308 of 2009;
Criminal Appeal No. 218-L of 2009 and Criminal Appeal No. 287-L of 2009’
Criminal Appeal No. 905-L-2009.