' ALI SAIN DINO METLO, J---Finding them guilty of transporting in a car, six kilograms of charas and 250 grams of opium, the Sessions Judge and Special Court for the Control of Narcotic Substances, Jacobabad (Mr. S. Muhammad Jamil Raza Zaidi) by his judgment dated 13-7-2001 sentenced appellants Abdul Karim, Buxial and Gulzar Ahmed to suffer imprisonment for life and to pay fine of Rs,500,000 each and in default of payment of fine to undergo imprisonment for three years more.
By these appeals, they have challenged their conviction and sentence.
2. Briefly the facts are that on 8-7-2009 at 1430 hours at Mehrabpur bridge of Saifullah Canal. SIP Ghulam Murtaza Mirani. SHO Police Station Garhi Khairo, accompanied by six constables, intercepted a Suzuki Mehran car, bearing Registration No,Z-3580 driven by appellant Abdul Kareem and recovered six kilograms charas and 250 grams opium contained in a bag lying near its hand break. One other person, namely, appellant Buxial was also with him in the car. Both were arrested and memo. Of arrest and recovery attested by the SHO and two constables, namely, Muhammad Saffar and Ghulam Qadir was prepared by him on the spot. The F.I.R. Bearing No, 42 of 1999 was registered at Police Station, Garhi Khairo on the same day and on the completion of investigation, charge-sheet was filed against appellants Abdul Kareem and Buxial.
3. After few months of filing the charge-sheet. Appellant Gulzar Ahmed requested the trial Court to give him the car on surety. The trial Court, not only refused to give him the car but also joined him as co-accused notwithstanding the fact that his name was neither in the F.I.R. Nor in the charge- sheet and he and his driver Bahar Ali had filed affidavits to the effect that he had nothing to do with the narcotics recovered from appellants Abdul Kareem and Buxial. According to his driver Bahar Ali, Abdul Kareem had taken the car from him for the purpose of taking his children to a hospital for treatment.
4. At trial, the appellants pleaded not guilty and the prosecution examined two witnesses, namely, SIP Ghulam Murtaza Mirani and HC Muhammad Saffar.
5. Appellant Gulzar Ahmed examined himself and his driver Bahar Ali; while appellants Abdul Kareem and Buxial examined Abdul Latif and Nadir Ali.
6. Bahar Ali deposed that appellant Abdul Karim had taken the car from him for taking his ailing children to a hospital at Larkana. Appellant Abdul Karim did not cross-examine him to challenge his version.
7. The trial Court convicted the appellants, including appellant Gulzar Ahmed, notwithstanding the fact that both the prosecution witnesses did not implicate appellant Gulzar Ahmed.
8. In our accusatorial system of administration of justice the Judge is required to maintain his impartiality. He must not show his leaning, even slightest, either towards the prosecution or towards the accused.
9. Normally, proceedings for holding trial of a person on criminal charge(s) are initiated either on complaint or on the report of the Investigating Officer. However, the Court may also initiate the proceedings on its own but keeping in view the salutary principle of maintaining impartiality, such a course is to be adopted only in rare cases of grave injustice in which there is overwhelming evidence against the accused.
10. In the present case, neither the Investigating Officer had said anything about appellant Gulzar Ahmed nor the public prosecutor requested for trying him. It was highly unfortunate that the trial Court not only decided to try him on its own initiative when there was no evidence against him but convicted and sentenced him to imprisonment for life without an iota of evidence against him. The two witnesses examined by the prosecution did not implicate him at all.
11. The conduct of the trial Judge in convicting appellant Gulzar Ahmed and sentencing him to life imprisonment without any evidence against him, cannot be overlooked. The Chief Justice may consider the propriety of taking disciplinary action against him. Such conduct on the part of a senior judicial officer will have the effect of undermining confidence and creating sense of insecurity among the general public. The State counsel has also frankly conceded for allowing appeal of appellant Gulzar Ahmed. Accordingly, his appeal is allowed and he is honourably acquitted. His bail bonds are cancelled and his surety is discharged.
12. As regards appeal of appellants Abdul Kareem and Buxial. There is sufficient evidence against them for their conviction. They failed to rebut or shake evidence of the two prosecution witnesses.
They were rightly convicted. Their Advocate, Mr. Asif Ali Abdul Razak Soomro conceding to their conviction did not press the appeal against their conviction. However, he requested for reducing their sentence to the imprisonment which they have already undergone. In this regard, it may be mentioned that there is nothing to show that they were involved in any criminal case prior to this. In the case of Niazuddin v. The State reported in 2007 SCM R 206, which was the case of possessing five kilograms of heroin the Supreme Court was pleased to reduce the sentence of imprisonment from ten years to six years. There is lot of difference between heroin and charas with reference to their injurious effect on health of their users and monetary benefit acquired by the persons dealing in their business. The injurious effect of heroin on the health of its users and the monetary benefit acquired by its dealers are much more than that of charas. Indeed there is no comparison between the two. Appellants Abdul Kareem and Buxial have remained in custody for few months less than ten years. In our opinion, that is the sufficient punishment they have suffered for the offence committed by them. Accordingly, the appeal of appellants Abdul Kareem and Buxial against their conviction is dismissed as not pressed and their sentence is reduced to the imprisonment which they have already undergone. They may be released immediately.