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