THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 301 of 2023

 

  Present:          Mr. Justice Naimatullah Phulpoto

                                                                                                                            Mr. Justice Amjad Ali Sahito

 

 

Appellant                          :              Juma Gul through Mr. Wali Khan Mandokhail advocate

 

Respondents                     :              The State through Mr. Ali Haider Saleem Addl. P.G

 

Date of Hearing                :             19.10.2023

 

Date of decision                :             19.10.2023

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Juma Gul appellant was tried by learned I-Additional Sessions Judge/ Special Judge, CAN, Karachi West for offence under Section 9(c) of CNS Act, 1997. After regular trial, vide judgment dated 18.04.2023, appellant was convicted under Section 9(c) of CNS Act 1997 and sentenced to undergo R.I for 14 years and to pay fine of Rs.400,000/-. In case of default in payment of fine, the appellant was ordered to undergo 01 year S.I. Appellant was extended benefit of section 382(b) Cr.P.C.

2.         At the very outset, learned Addl. P.G pointed out that narcotics quantity recovered from the appellant exceeded 10 K.G and the punishment should not have been less than imprisonment for life as provided by the Control of Narcotics Substance (Sindh Amendment) Act 2021, but in the present case, trial Court has sentenced the appellant for 14 years R.I. It is submitted that sentence awarded by the trial Court was quite inappropriate and against the command of law and prayed that case may be remanded to the trial Court for passing the judgment in accordance with law. In support of his contentions, reliance is placed upon the case of State vs. Fakhar Zaman (2019 SCMR 1122).

3.         Learned advocate for the appellant conceded to the legal position. However, he submitted that appellant has a good case on merits.

4.         In order to appreciate the contentions raised by learned Addl. P.G, we have gone through amendment introduced through the Control of Narcotics Substance (Sindh Amendment) Act, 2021. For the sake of convenience, it is reproduced as under:

“4. In the said Act, for section 9, the following shall be substituted:-

 

9. Punishment for contravention of section 6, 6-A, 7 and 8.

 

Whoever contravenes the provisions of sections 6, 6-A, 7 and 8 shall be punished with–

 

(a) imprisonment which may extend to three years but shall not be less than six months, or with fine upto rupees one lac but shall not be less than rupees fifty thousand, or with both if the quantity of psychotropic substance or controlled substance or narcotic drug category (i) is one hundred gram or less;

 

(b) imprisonment which may extend to seven years but shall not be less than three years and shall also be liable to fine upto rupees five lac but shall not be less than rupees one lac if the quantity of psychotropic substance or controlled substance or narcotic drug category (i) exceeds one hundred gram but does not exceed one kilogram, or if the quantity of narcotic drug category (ii) is fifty gram or less.

 

(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug category (i) and (ii), psychotropic substance or controlled substance exceeds the limit specified in clause (b).

 

Provided that if the quantity of narcotic drug category (i), psychotropic substance or controlled substance exceeds ten kilograms or narcotic drug category (ii), exceeds two kilograms, the punishment shall not be less than imprisonment for life.”

 

5.         According to the case of prosecution, in the present case, 27010 grams of charas and 2400 grams of opium were recovered from the possession of the appellant, as such the quantity exceeded 10 K.G, in such cases, punishment shall not be less than imprisonment for life, but in the present case, appellant was convicted and sentenced to undergo R.I for 14 years. The sentence awarded by the trial Court is against the command of law and quite inappropriate. In the case of State vs. Fakhar Zaman (2019 SCMR 1122), the Apex Court has held as under:

“3.    The impugned view would not commend well with the law, unambiguously providing a sentence, not less than imprisonment for life as well as fine in case an offender is held guilty of possessing contraband in excess of ten kilograms as is the case with the respondent and therefore impugned view taken by the High Court is open to exception, warranting interference by this Court; consequently this appeal is allowed, impugned judgment dated 28.5.2013 is set aside and the sentence awarded by the learned trial Court is restored, however with benefit of section 382-B of the Code ibid. Perpetual warrants of arrest shall be issued to arrest the respondent so as to serve out the sentence, handed down by the learned High Court.”

 

6.         In the view of above, we have no hesitation to hold that conviction and sentence recorded by the trial Court are unsustainable under the law and the same are set aside. The case is remanded to the trial Court, who after affording opportunity of hearing to the parties, shall decide the case in the view of above observations according to law.

7.         Before parting with this judgment, it is observed that learned Sessions Judge West shall decide the case himself or make over/transfer to the Additional Sessions Judge having jurisdiction to try the case under the provisions of CNS Act 1997. Case pertains to year 2021, trial Court is directed to decide it within one month under intimation to this Court through MIT-II.

8.         The instant appeal is disposed of in the above terms.

                       J U D G E

 

J U D G E