Criminal Appeal No. 25 of 2017
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Zulfiqar Ahmad Khan
Date of Hearing: 17.01.2018
Date of
announcement of judgment: 18.01.2018
Appellant: The
State/ANF through Mr. Muhammad Ishaque Memon Special Prosecutor ANF.
Respondent: Mr.
Samiullah Soomro Advocate .
NAIMATULLAH PHULPOTO, J- Respondent/accused Jamesh Uchenna was tried by
learned Special Judge, Special Court-I (Control of Narcotics Substances)
Karachi in Special Case No. 664/2015. By judgment dated 09.12.2016, Respondent was
convicted under Section 9(b) of the CNS Act, 1997 and sentenced to 01 year R.I and to pay fine
of Rs.13000/-. In case of default he was ordered to undergo SI one month more.
Benefit of Section 382-B
Cr.P.C was extended to the Respondent/accused. The State/ANF through its Director General has
filed instant appeal for enhancement of sentence.
2. Brief
facts of the prosecution case as reflected in the impugned order are that
Respondent was arrested by Inspector Naeem Khan of P.S ANF outside the International
Arrival Exit Gate, JIAP, Karachi. He was found in
possession of a bag. It was opened and there were 24 black plastic bottles of
Baby child Talcum powder in it, out of which, in two bottles there were
cocaine, its weight was 525 Grams. Accused was arrested in presence of mashirs.
His passport was also taken into possession. Cocaine was put in theli and
sealed in white Cloth bag at spot. Thereafter, accused and case property were
brought at Police Station ANF-II, where FIR bearing No. D0307084/2015 u/s 9(b)
of CNS Act, 1997 was registered against accused on behalf of state. Cocaine was
sent to the Expert, positive report was received. After usual investigation Challan
was submitted against accused under Section 9(b) of the Control of Narcotics
Substance Act, 1997.
3. At
the time of framing of charge u/s 9(b), of the CNS Act, 1997, accused pleaded
guilty to the charge. Learned Trial Court took lenient view, convicted
Respondent u/s 9(b) of the CNS Act, 1997 and sentenced as stated above.
4. Mr.
Muhammad Ishaque Memon Special Prosecutor ANF contended that sentence awarded
to the Respondent is inadequate and against the law. In support of his
submission he has relied upon the case reported as Ghulam
Murtaza and another Vs. The State
(PLD 2009 Lahore 362) and the judgment of the
Honourable Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380).
5. Mr.
Samiullah Soomro learned counsel appearing on behalf of Respondent argued that
Trial Court has assigned reasons for departure in the matter of sentence from
the norms and standards prescribed above.
6. We
have perused the impugned order passed by the trial Court dated 09.12.2016,
which is reproduced as under:-
“Whereas today the accused James is produced under
custody by jail authority before this Court. Charge was framed against accused and kept on record at Ex-2, for which
he pleaded his guilty vide pleas kept on record at Ex-2-A.
That the accused James has voluntarily pleaded his guilty and admitted
on 27-11-2015 at 1255 hours, he was arrested by Inspector Naeem Khan, complainant
of P.S, A.N.F Muhammad Ali Society, Korangi Karachi, from outside International
Arrival Exit Gate, JIAP, Karachi and he in presence of mashirs PC-Maqbool Ahmed
and P.C Rizwan recovered his Passport No. A02854632,
and Air Ticket from his left hand. He secured Nylon bag from his Trolley,
opened the same and recovered 24 plastic bottles of Baby child Talcum powder,
out of which from two Baby child Talcum powder bottles he recovered two
transparent Thelies containing Cocaine lying in below the Talcum powder. He
took out the Cocaine from both transparent Thelies and put the same in one
transparent Theli and weihed the same with Electronic Weighing Scale which
becomes 525 grams. He then put the same in white cloth bag and sealed the same
for the prpose of chemical examination. The chemical report of sealed parcel of
secured Cocaine is available on record which is in positive and show the net
weight of Cocaine was 525 grams, with 99% purity. The admission of accused has
proved beyond any reasonable shadow of doubt that he kept 525 grams Cocaine in
his possession and control which was recovered by the complainant in presence
of mashirs. Thus I found the accused James guilty of offence punishable U/s
9(b) of the Control of Narcotic Substances Act 1997. The accused James appears
to be first offender as there is no any record available with prosecution to
show that he was previously convicted in any such type of acase. The accused
has spoken truth before the Court and looking to his middle age, I take lenient
view and convict the accused James U/S-265-E(2)
Cr.P.C, for the commission of offence punishable U/S-9(b) of the Control of
Narcotic Substances Act 1997, and awarded him sentence to undergo rigorous
imprisonment for one year Rs.13000/- (thirteen thousand rupees) in default of
payment of fine to further undergo simple imprisonment for a period of one
month more. The benefit of S-382-B Cr.P.C is granted to the accused for the
period which he has already undergone as under trial prisoner in this case. The
accused James is present under custody and he is remanded back to jail to
suffer his sentence accordingly. Reliance is placed on case law PLD 2013
Peshawar-35, 2007 S.C.M.R-206, in which lenient view was taken by the Court for
first offenders.”
7. From
perusal of the above order, it transpires that trial Court took lenient view by
assigning reasons that Respondent Jamesh Uchenna appeared to be first offender
and there was no previous record of his involvement in such type of cases.
Trial Court has further mentioned that accused had spoken truth before the
Court and he is middle aged person. 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) has laid down the following principles:
“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.”
8. We
have come to the conclusion that trial Court rightly took lenient view in the
matter keeping in view the remorse and repentance of the accused. Accused was
first offender and did not rely upon false defence. Consequently, appeal for
enhancement of sentence is without merit and the same is dismissed.
JUDGE
JUDGE
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