THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 546 of 2017

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        The State/ ANF through Assistant Director (Law), Government of Pakistan Ministry of Narcotics Control, Anti-Narcotics Force, Karachi through Mr. Habib Ahmed Special Prosecutor ANF

Respondent No.1:                           None present

Date of hearing:                              12.10.2021

Date of announcement:                14.10.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The facts in brief leading to passing of instant judgment are that the private respondent being International passenger, when was about to depart from Karachi Airport was apprehended and on medical examination, he was found carrying inside of his body 93 capsules which were removed successfully by ANF Police with help of medical staff, those capsules were found containing heroin powder, it was weighed to be 670 grams, therefore, for that the private respondent was booked and reported upon.

2.       At trial, the private respondent pleaded guilty to the charge, consequently he was awarded rigorous imprisonment for the period which he has already undergone with benefit of Section 382(b) Cr.P.C. by learned Judge, Special Court No.1 (CNS), Karachi vide order dated 17.01.2013, which is impugned by the State/ANF by preferring Revision Application, which subsequently was converted into Appeal.

3.       It is contended by learned counsel for the appellant State/ ANF that the conviction awarded to the private respondent is not in accordance with law and it has been awarded to the private respondent without providing chance of hearing to the State/ ANF by learned trial Court, therefore, the impugned order being illegal is liable to be set aside with direction to learned trial Court to proceed with the case in accordance with law.

4.       The private respondent on service of notice engaged a counsel but subsequently both of them chosen to remain absent without intimation, which prima facie suggests that they have no defence to make.

5.       We have considered the above arguments and perused the record.

6.       Section 9(b) of CNS Act, 1997 prescribes that whenever the charge is proved for being in possession of narcotics substance upto 1000 grams, then the accused involved beside imprisonment is to be burdened with the fine mandatorily. In the instant case, no fine is imposed upon the accused by learned trial Court, which has rendered the impugned order convicting the accused barring fine, to be illegal. Even otherwise, the punishment awarded to the accused, for period which is spreading over one month or little above, being too short and contrary to the mandate                                                                         prescribed in case of Ghulam Murtaza and others vs. The State (PLD 2009 Lahore 362). Be that as it may, obviously no chance of hearing has been provided to the State/ ANF before making disposal of its case, which is contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 which prescribes fair trial to every person for determination of its civil/criminal rights. In these circumstances, the impugned order is set aside, consequently, the matter is remanded to learned trial Court for its disposal in accordance with law.

7.       The instant Criminal Appeal is disposed of accordingly.

 

JUDGE

JUDGE