HIGH COURT OF SINDH AT KARACHI

 

Criminal Jail Appeal No. 320 of 2016

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Maalik Gaddi     

 

 

Date of Hearing     :              06.12.2017.

 

Date of Judgment   :             14.12.2017.

 

Appellant                 :            Chikwendu Elochukwu Sabastine through Mr. Muhammad Farooq Advocate.

 

Respondent              :            Through Mr. Asad Raza Special Prosecutor for Customs.

 

 

 

JUDGMENT

 

 

 

NAIMATULLAH PHULPOTO, J.- Appellant Chikwendu Elochukwu Sabastine (Nigerian national) was tried by learned Special Court-II (CNS) Karachi in Special Case No. 82/2016 for offence under Section 9(c) of the CNS Act, 1997. Charge against accused was framed under Section 9(c) of the CNS Act, 1997. Appellant pleaded guilty to charge, trial Court recorded plea of accused vide order dated 16.08.2016 as follows:-

 

“Accused Chikwendu Elochukwu Sabstine (Nigerian National) son of Sbstine involved in above noted narcotic case appeared today before this Court and a charge was framed against him under section  265-D Cr.P.C and it was narrated to him that on 18.02.2016, at about 1530 hours at Internal Arrival Hall, JIAP, Karachi and recovered 75 capsule of cocaine weighing 1470 grams from his body cavity (stomach) at Ward No.5, JPMC, Karachi and when the charge was read and explained to the accused asked about whether he is guilty or has any defence to make the accused pleaded guilty in the following terms.

 

            “I plead guilty and give me minimum punishment.”

 

Since the accused pleaded his guilty without any duress or coercion and he left himself upon the mercy of this Court. It appears that the accused has not previously convicted in such type of case and this is only case against him as per record. In such circumstances though there is nothing define about the drug cocaine in the sentencing policy as laid in the PLD 2009 Lahore 362, but in my humble opinion cocaine is the product of South America and equivalent to the drug heroin, which has been prescribed about sentence in the above referred citation, therefore, after taking guidance from the citation PLD 2009 Lahore 362 and taking leniency accused Chikwendu Elochukwu Sabstine (Nigerian National) son of Sabstine is convicted under section 265-E(2) Cr.P.C and sentence under section 9-C CNS Act, 1997 is convicted and sentenced under section 9-C CNS Act, 1997 to Rigorous Imprisonment for six (06) years imposed fine of Rs.30,000/- (Rupees Thirty thousand only). In default in payment of fine the said accused further undergo to Simple Imprisonment for six (06) months. The accused shall get benefit of section 382-B Cr.PC. Accused produced in custody he is remanded back to jail from where he is produced to serve out the sentence in accordance with law.”  

 

 

2.         Jail Appeal of Chikwendu Elochukwu Sabastine (Nigerian national) was received by this Court through Senior Superintendent Central Prison, Karachi dated 06.09.2016.

 

3.         At the time of admission of appeal, it was observed that offence under Section 9(c) of the CNS Act is punishable for death or imprisonment for life. It cannot be proceeded without defence counsel. On the request of appellant, who was produced before the Court, services of Mr. Muhammad Farooq Advocate were provided to him on state expenses. Appellant was produced before this Court on 06.12.2017 and submitted that he is married having four children and prayed for taking lenient view in his sentence.

 

4.         Mr. Muhammad Farooq Advocate for appellant did not press appeal on merits and submits that appellant is Nigerian national and he has showed remorse and repentance for his act before this Court, lenient view in the sentence may be taken. He has further submitted that trial Court has not assigned reasons for accepting plead guilty in the impugned order. It is further contended that Trial Court utterly failed to consider plea of accused for taking lenient view in the sentence. Lastly, it is submitted that appeal may be remanded back to the trial Court for taking more lenient view in light of dictum laid down in the case of STATE through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force Versus MUJAHID NASEEM LODHI (PLD 2017 SC 671).

5.         Mr. Asad Raza learned Special Prosecutor for Customs recorded no objection for taking lenient view in the sentence.

6.         View of Honourable Supreme Court for taking lenient view in the sentence in case of  STATE through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force Versus MUJAHID NASEEM LODHI (PLD 2017 SC 671) is reproduced as under:-

“5.         As regards the prayer made through the present petition regarding enhancement of the respondent's sentence the learned Special Prosecutor, Anti-Narcotics Force has mainly relied upon the judgment handed down by a Full Bench of the Lahore High Court, Lahore in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) wherein some guidelines had been laid down vis-a-vis sentencing in cases of narcotic substances and has maintained that the sentence passed by the trial court against the respondent was not in accord with the said guidelines. The said judgment of the Lahore High Court, Lahore had approvingly been referred to by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380). We note that in paragraph No. 10 of the judgment handed down by the Lahore High Court, Lahore in the above mentioned case it had been observed that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure." In the case in hand the trial court had recorded reasons for passing a sentence against the respondent which made a departure from the above mentioned sentencing guidelines. The trial court had observed that the respondent had made a confession before the trial court besides expressing remorse and repentance with an assurance not to deal with narcotics in future. It was also noticed by the trial court that the respondent's co-accused namely Muhammad Suneel had also made a confession before the trial court and on the basis of such confession he was also awarded a sentence which departed from the above mentioned sentencing guidelines but the State had not sought enhancement of his sentence. The High Court had refused to enhance the respondent's sentence and had dismissed an appeal filed by the State in that regard by holding that the above mentioned considerations weighing with the trial court for passing a reduced sentence against the respondent were appropriate in the circumstances of the present case. The exercise of jurisdiction and discretion in the matter of the respondent's sentence by the trial court and the High Court have not been found by us to be open to any legitimate exception, particularly when the reasons recorded for passing a reduced sentence against the respondent and for making a departure from the above mentioned sentencing guidelines have been found by us to be proper in the peculiar circumstances of this case. This petition is, therefore, dismissed and leave to appeal is refused.”

 

7.         We are cognizant that in Section 412 Cr.P.C, it is provided that where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Session or Magistrate of the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence.

8.         Appellant was produced before this Court on 06.12.2017, who showed remorse and following order was passed:-

“Appellant is produced in custody and submits that he is father of four sons, his parents are alive and he is support of his family. Appellant submits that he is ashamed of his act and he is not previously convict. Mr. Muhammad Farooq, advocate for appellant submits that lenient view in the sentences may be taken in view of the dicum laid down by the Hon’ble Supreme Court of Pakistan in the case of Niazuddin v. The State reported as 2007 SCMR 206. Mr. Asad Raza, Special Prosecutor, Custom, recorded no objection in case lenient view is taken in the matter. It appears that appellant pleaded guilty before trial Court. We have heard the learned counsel for parties regarding maintainability of the appeal as provided under Section 412 Cr.P.C. Reserved for judgment. Appellant is remanded back to custody.”

 

9.         In the present case, trial Court did not consider remorse, repentance of accused. Appellant was produced before this Court and reiterated remorse and repentance, he added that he is father of four sons, his parents are alive and he is supporter of a large family.

10.       We have considered the legality of impugned order, which requires interference by this court for the above stated reasons. Thus, order dated 16.08.2016 passed by trial Court is set aside, case is remanded back with direction that trial Court shall consider remorse and repentance of the accused in the light of dictum laid down by the Honourable Supreme Court in the case of STATE through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force Versus MUJAHID NASEEM LODHI (PLD 2017 SC 671). Plea of guilt/ confession of accused shall be decided by the trial Court within 15 days in accordance with law under intimation to this Court. 

11.       Appeal is disposed of in the above terms.

 

 

 

JUDGE

                                                JUDGE