IN THE HIGH COURT OF SINDH, KARACHI

 

 

Criminal Appeal No. 225 of 2009

 

 

Present: 

 

Mr. Justice Gulzar Ahmed and

                Mr. Justice Irfan Saadat Khan

 

 

 

 

Date of hearing:                     29-10-2009.

 

Appellant/Petitioner                  In-person.

 

Amicus Curiae:                         Mr. Malik Muhammad Aquil Awan, advocate.

                                                 

Respondent:                             through Mr. Muhammad Ali Waris Lari, Special Public Prosecutor, ANF.

 

JUDGMENT

 

IRFAN SAADAT KHAN, J:-,  This criminal appeal is directed against the Judgment dated 10.7.2009 whereby the son of the appellant, namely, Muhammad Anwar, was convicted under sections 6/9(b) of the Control of Narcotics Substances Act, 1997 and was sentenced to suffer R.I. for one year and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer further R.I. for 15 days.

2.                  The facts of the case are that on 5.4.2009 Anti Narcotic Force officials received spy information that a person is taking heroin power in his body at the International Departure Lounge of the JIAP, Karachi.  On receipt of such information a party was dispatched to the said location and on the pointation of the said spy they apprehended one Muhammad Anwar son of Waryam, son of the present appellant. He admitted about the presence of capsules containing heroin power in his stomach and was taken to the Medico Legal Officer, JPMC for examination whereafter he discharged 89 capsules  containing heroin powder weighing 145 grams gross and 134 grams net. Accordingly, FIR No.17/2009 under section   6/9(b) of the CNS Act was lodged against him and he was sent up for trial before the Special Court (Control of Narcotics Substances), Karachi, who convicted and sentenced him as stated above.

3.                  Although no appeal was filed by the convict himself but the mother of the convict, namely, Janatan Bibi, filed this mercy application praying for remission of the remaining sentence or for release of the convict on parole which has been converted into appeal and is being disposed of accordingly.

4.                  The mother of the convict has stated that her son was awarded R.I. for one year and he has so far undergone  R.I. for about five months. She has prayed on compassionate grounds for remission of the remaining sentence or release of her son on parole as he is the only bread-earner of the family consisting of two minor children of the convict, his ailing wife and his old parents.  Jail Roll of the convict is available on record which shows that he has undergone R.I. for six months and 24 days and he has to further suffer R.I. for five months and 21 days.

5.                  The convict was present in Court and submitted that he is a poor person and as such is not in a position to engage a counsel and requested that a pauper counsel may be provided to him.

6.                  On the merits of the case, learned counsel for the ANF submitted that the accused was caught red-handed at the International Departure Lounge of the JIAP, Karachi while carrying 145 grams of heroin power concealed in 89 capsules in his stomach.  He admitted his guilty and such statement is available on record.  He submitted that in view of the provisions of section 412, Cr.P.C. no appeal can be entertained in respect of such conviction. He submitted that the present appeal is misconceived and merits dismissal. However, when asked by this Court, the learned counsel was not able to support his contention by any case law of the superior courts.  Learned counsel also submitted that no benefit can be extended to the convict under sections 4 and 5 of the Probation of Offenders Ordinance 1960 as these sections speak of a different situation which is not available to the present convict.  In the end, the learned counsel submitted that this is a fit case for enhancement of sentence.

7.                  Since the convict is a poor person and could not engage a counsel to represent him in this case, as stated by him above, we asked Mr. Malik Muhammad Aqil Awan, advocate, who was present, to not only assist the convict but also to assist the Court. He graciously accepted the task and rendered valuable assistance in this case.

8.                  The learned Amicus Curiae submitted that since the learned trial Court has already taken a lenient view by awarding a lesser punishment to the convict, no case is made out for interference therein by this Court.  He, however, strongly rebutted the contention of the learned counsel for ANF regarding enhancement in sentence as, according to him, since no appeal against the conviction and sentence was preferred by the ANF, hence such prayer for enhancement of sentence cannot be entertained.

9.                  We have heard the convict in person as well as Mr. Malik Muhammad Aquil Awan, advocate on his behalf and as amicus curiae as well as Mr. Muhammad Ali Waris Lari, SPP, ANF. 

10.              So far as the submission of learned counsel for ANF regarding non-maintability of this appeal under section 412, Cr.P.C. is concerned, we are not inclined to agree with the same for the reason that the provisions of the said section do not place an absolute embargo on filing of an appeal against a conviction recorded on admission of guilt by the accused.  The section reads as under:

“412. No appeal in certain cases when accused pleads guilty.   Notwithstanding anything hereinbefore contained where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Sessions or Magistrate of the first class on such please, there shall be no appeal except as to the extent or legality of the sentence.” (emphasis supplied).

11.              A perusal of the above quoted section 412 of the Cr.P.C. clearly shows that it admits of two exceptions i.e. that an appeal can be filed against such conviction to call into question the “extent or legality of the sentence.”  It may also be noted that the impugned Judgment was not passed by “a High Court, a Court of Sessions or Magistrate of the first class” but was passed by a special tribunal created under a special statute.

12.              So far as the question of reduction in the sentence is concerned, it may be observed that the punishment provided under section 9(b) of the CNS Act 1997 for an offence under section 6 thereof for possessing narcotic drugs exceeding one hundred grams but not exceeding one kilogram, is upto seven years.  Thus, the trial Court has taken a very lenient view by awarding him a sentence of one year R.I.  Therefore, we are not inclined to further reduce the sentence. 

13.              So far as the prayer of the appellant for release of her son on parole is concerned, it may be noted that the convict Muhammad Anwar is involved in the most heinous crime of trafficking of heroin powder which can be treated as crime against the humanity.  As we have already observed above, that the learned trial Court had taken a very lenient view by awarding him the lesser punishment of R.I. for one year, we do not think that in such circumstances the convict deserves to be released on parole.  We are mindful of the attitude of the convict that he immediately accepted his guilt and was convicted on the basis thereof and that this is his first offence but we are also of the opinion that he must suffer some retribution from his act. 

14.              In view of the above discussion, we do not deem it expedient to interfere  in the impugned order passed by the learned trial Court and dismiss the instant appeal.

15.              Before parting with the case we would like to put our appreciation on record for the assistance provided in this matter by Mr. Malik Muhammad Aquil Awan, advocate as amicus curiae.

Judge

Karachi, the _____ October, 2009.                                          Judge