ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Criminal.Jail.Appeal.No.D- 118 of 2006

DATE ORDER WITH SIGNATURE OF JUDGE

Date of hearing: 23.09.2010.

Date of order:

Mr. M. Illyas Khan, Advocate for the appellant.

Syed Meeral Shah, D.P.G for the State.

Appellant produced in custody.

Through this jail appeal, appellant has impugned the judgment dated 4.5.2006 passed by Sessions Judge/Special Judge C.N.S, Nawabshah in Special Case No.42 of 2004 whereby he convicted the appellant and sentenced to suffer R.I for 07 years with fine of Rs.10,000/- in lieu of payment of fine, further R.I for two months. However, the benefit of Section 382-B Cr.P.C was extended to the appellant.

The facts given rise to this appeal are that on 7.3.2004 appellant alongwith co-accused Zahir Khan was arrested near Sanjrani Weighing Bridge Sabo Rahoo Taluka Sakrand while they were traveling in a truck which was coming from Sukkur, by Excise Police Party headed by Altaf Hussain Kalhoro, Assistant Excise and Taxation Officer, Nawabshah Sindh pursuant to secret information. The Excise Police party gave signal to the appellant who was driving the Truck but instead of decreasing the speed, he fired upon the Excise Police party and tried to drive away the Truck and fired in air. Complainant party made aerial firing with sub-machine gun and ultimately got stopped the vehicle. The appellant was sitting at the driving seat of the Truck and from his possession, police secured a pistol No.GMB-3004, from the secured cavity of the cabin of Truck, 23 Kg of heroin was also secured. Mashirnama was prepared on the spot and appellant alongwith co-accused, pistol, Truck and heroin powder were brought at Police Station where a case U/s 8(b) of C.N.S Act, 1997 was registered on behalf of the State.

It is pertinent to mention here that a separate case U/s 9 (c) of C.N.S Act was also registered against the appellant and co-accused and after trial the appellant and co-accused were convicted and sentenced to suffer for life imprisonment and fine of Rs.10,000/- each.

At the very outset, learned counsel for appellant contended that trial Court failed to appreciate the law involved in the case in sentencing the appellant to suffer R.I for 07 years in addition with sentence of life imprisonment U/s 9 (c) of C.N.S Act which is impugned in Criminal Appeal No.D-119/2006. Per learned counsel, Section 8 of C.N.S Act, 1997 is not a penal section but defining section and the punishment for contravention of Section 8 is provided in Section 9 of the Act. Per learned counsel, the trial Court could not have sentenced the appellant U/s 8 of Act when he was already sentenced to life imprisonment U/s 9 (c) of C.N.S Act. It is further contended that impugned judgment has been passed in contravention of Article 13 of the Constitution of Pakistan, U/s 403 as well as U/s 26 of the General Clauses Act. It is urged with vehemence that Section 17 of C.N.S Act speaks of obstruction to officers in performance of their functions under the Act for which punishment is provided for a term which may extend to 03 years or with fine or with both but no charge U/s 17 of C.N.S Act has been made against the appellant. It is lastly contended that Section 8 (b) of the Act pertains to violation or use of Arms for committing or attempt to commit an offence under the Act but from the contents of charge, it appears that offence for which the appellant has been convicted is punishable under the Arms Ordinance.

Conversely, learned D.P.G for the State defended the impugned judgment but could not controvert the contentions raised by learned counsel for the appellant.

Heard and perused the record.

As the appellant has been convicted for offence Under Section 8 of C.N.S Act, 1997 therefore, for the sake of convenience, Section 8 of C.N.S Act is reproduced hereunder:-

“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 substance or controlled substance; or

(b) use violence or arms for committing or attempt to commit an offence punishable under this Act.

Upon perusal of Section 8 of the C.N.S Act, it appears that this is a defining Section and does not provide any sentence or penalty for its contravention. However, the Section 9 of C.N.S Act provides punishment for contravention of Section 6, 7 and 8 which provides different punishments for contravention of Section 6 to 8 of the Act with regard to the quantity of narcotics drugs, psychotropic substance or controlled substance. Since the appellant has already been convicted U/s 9 (c) of C.N.S Act and sentenced to suffer imprisonment for life with fine of Rs.10,000/- for same offence. It is worthwhile to mention here that punishment provided U/s 9 (c) of the Act also covers the punishment for contravention of Section 8 but the trial Court has convicted the appellant U/s 8 of the C.N.S Act when the said Section does not provide any punishment. At the most for keeping unlicensed pistol, the appellant could be charged U/s 13(d) Arms Ordinance which is punishable for 07 years. Since the appellant is behind the bars from 7.3.2004 hence he has already undergone the sentence which could be awarded to him U/s 13(d) of Arms Ordinance therefore, it would amount double jeopardy if he is charged afresh under Arms Ordinance. There is another aspect of the case, as during trial both the PWs have categorically stated that not a single empty was secured from the place of offence. Such admission on the part of prosecution witnesses also creates doubt about the prosecution case with regard to the allegation of firing by the appellant

For the foregoing reasons, we allow this appeal. Consequently, set aside the conviction/sentence passed by the trial Court and acquit the appellant of the charge.

JUDGE

Tufail