HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 306 of 2016

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ahmad Khan

Date of Hearing : 10.01.2018.

Date of Judgment : 11.01.2018.

Appellant : Chukwudi Leonard Okeke through Mr. Muhammad Farooq Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

Custom : Through Mr. Muhammad Taseer Khan Advocate.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Chukwudi Leonard Okeke was tried by learned Special Court-II (CNS ) Karachi in Special Case No.651/2015 for offence under Section 9(c) of the CNS Act, 1997. Charge was framed against accused under Section 9(c) of the CNS Act, 1997, where the Appellant pleaded guilty to charge. Trial Court recorded plea of guilt in the following words:

“Accused Chukwudi Leonard Okake (Nigerian national) son of Okake 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 14.12.2015 at about 2230 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 and asked about whether he is guilty or has any defence to make the accused pleaded guilty in the following terms.

“I plead guilty. I committed this offence.”

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 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 Chukwudi Leonard Okake (Nigerian National) son of Okake 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.P.C. 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 Chukwudi Leonard Okeke (Nigerian national) has been received through Senior Superintendent Central Prison Karachi dated 24.08.2016.

3. At the time of admission of appeal, it was observed that offence under Section 9(c) of the CNS Act is punishable with death or imprisonment for life. 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 also produced before this Court on 10.01.2018 and submitted that he is married, having three children and an old mother. He prayed for taking a lenient view in his sentence.

4. Mr. Muhammad Farooq Advocate for the appellant did not press appeal on merits and submitted that the appellant is a Nigerian national who has shown remorse and repentance for his act before this Court, thus a lenient view in the sentence may be taken. He has further submitted that trial Court has not assigned reasons for accepting plea of guilt in the impugned order. It is contended that Trial Court utterly failed to consider plea of accused for taking lenient view in the sentence. Lastly, it was submitted that appeal may be remanded back to the trial Court for deciding the plea of appellant in the 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. Muhammad Iqbal Awan learned Addl. P.G and Mr. Muhammad Taseer Khan Advocate for Customs recorded no objection for taking a lenient view in the sentence.

6. For the sake of convenience, view of Honourable Supreme Court for taking lenient view in the 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 under 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 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 10.01.2018, who once again showed repentance and remorse when following order was passed:

“Appellant is produced in custody by Jail Authorities. Appellant submits that he is father of three kids and presently he is not aware whether his children go to the school or not. Appellant is ashamed of his act and prays for mercy. Mr. Muhammad Farooq Advocate appeared on behalf of appellant submits that propriety of the sentence may be considered. In support of his contentions, he has relied upon the case reported as STATE through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force Versus MUJAHID NASEEM LODHI (PLD 2017 SC 671). Learned counsel for Customs as well as learned DPG recorded no objection, in case matter is remanded back to the trial Court for considering the propriety of sentence in the light of submissions made by appellant before this Court.

Heard arguments. Reserved for judgment. Appellant is remanded back to jail.”

9. In the case in hand, in our view the trial Court clearly failed to consider the remorse and repentance of the appellant. Therefore, we are of the considered view that impugned order dated 02.08.2016 is not sustainable under the law and its’ legality requires interference. The same is thus hereby set aside. However, case is remanded back to the trial Court with direction to consider remorse and repentance of the accused which has been reiterated by him before this Court 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). Case which is based upon the plea of guilt against accused, shall be decided by the trial Court within one month under intimation to this Court.

10. The instant appeal is disposed of in above terms.

JUDGE

JUDGE