HIGH COURT OF SINDH AT KARACHI

 

Criminal Jail Appeal No. 305 of 2016

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Maalik Gaddi     

 

 

Date of Hearing     :              04.12.2017.

 

Date of Judgment   :             08.12.2017.

 

Appellant                 :            Simon Ngozi Nwachukwu through Mr. Khaliq Ahmed Advocate.

 

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

 

Custom                      :           Through Mr. Muhammad Taseer Khan Advocate.

 

 

 

JUDGMENT

 

 

 

 

NAIMATULLAH PHULPOTO, J.- Appellant Simon Ngozi Nwachukwu was tried by learned Special Court-II (CNS ) Karachi in Special Case No. 650/2015 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. Appellant pleaded guilty to charge and following order dated 02.08.2016 was passed by the trial Court:-

 

“Accused Simon Ngozi Nwachukwu son of Nwachukwu (Nigerian national) involvedin above noted narcotic case has filed application for pleading guilty through his counsel at Exh.4, his statement was recorded at Exh.5. He has filed application without any undue influence. The accused understand the gravity of the sentence that he confesses the commission of said offence.

 

In this case the prosecution case is that on about 13.12.2015, at about 0700 hours you the accused arrested by customs officials while he arrived at Karachi from Lagos (Nigeria) via Doha (Qatar) by Flight No. QR-610 and recovered 57 capsules of cocaine weighing 920 grams from a sock concealed his underwear and also recovered 37 capsules of cocaine weighing 580 grams, total 1500 grams from his body cavity (stomach) at Ward No.5 at JPMC Karachi and at office of customs. After observing required formalities the spot FIR was lodged against the accused. After completion of investigation I/O had submitted the final report under section 173 Cr.P.C. The Accused is not previously convicted in such type of cases. Since the accused voluntarily confessed his guilt through his statement recorded under Section 342 Cr.P.C and he led himself upon the mercy of this Court. 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 Simon Ngozi Nwachukwu son of Nwachukwu (Nigerian National) is convicted and sentenced under Section 9-C CNS Act 1997 to Rigorous Imprisonment for six (06) year and 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 Simon Ngozi Nwachukwu son of son of Nwachukwu (Nigerian national) was 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. Khaliq Ahmed Advocate were provided to him on state expenses. Appellant was also produced before this Court on 21.11.2017 and submitted that he is married, having four children and prayed for taking lenient view in his sentence.

 

4.         Mr. Khaliq Ahmed Advocate for appellant did not press appeal on merits and submits that appellant is a Nigerian national and he has showed remorse and repentance for his act before this Court, lenient view in the sentence may be taken. He has further submitted that trial Court has not assigned reasons for accepting plead guilty 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 is submitted that appeal may be remanded back to the trial Court for taking more lenient view in 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 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 the 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 21.11.2017, who showed remorse and following order was passed:

“Appellant Simon Ngozi Nawachukwu is produced in custody. Mr. `Khaleeq Ahmed, Advocate appeared on behalf of appellant, who was appointed counsel for defending the appellant on State expenses. Mr. Muhammad Taseer Khan, Advocate undertakes to file power on behalf of Customs. Mr. Khaleeq Ahmed, Advocate may seek instructions from the appellant, who is produced in custody by the jail authorities. Appellant submits that he is Nigerian National, he is married, having four children and prayed for taking lenient view in  his sentence. Appellant prayed for mercy. Appellant is remanded back to jail he shall not be produced on the next date of hearing. The name of Deputy Prosecutor General, Sindh be deleted, as the matter pertains to Deputy Attorney General.

            Adjourned to 04.12.2017.”

 

9.         In the view of above order dated 02.08.2016 is set aside, case is remanded back with direction that trial Court shall consider remorse and repentance of the accused 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). Plea of guilt/ confession of accused shall be decided by the trial Court within 15 days under intimation to this Court.           

10.       Appeal is disposed of in the above terms.

 

JUDGE

                                                JUDGE