NISAR MUHAMMAD SHAIKH, J.---By this common Judgment we intend to decide these two Appeals, filed by the appellants assailing the two Judgments passed on 28-2-2009 by learned Judge, Special Court-H (CNS), Karachi, whereby the appellants Rabnawaz and Wasim Sajjad were convicted for the offence punishable under section 9(c) Control of Narcotic Substances Act 1997 in both cases i.e, Special Cases Nos.13 and 14 of 2005 arising out of Crimes Nos.176 and 177 of 2004 of Police Station Baldia Town, Karachi and each of them was sentenced in both cases respectively, to suffer fife imprisonment and pay fine of Rs,100,000 each and in default of payment of such fine, to suffer S.I. for one year more. The benefit of section 382-B, Cr.P.C. was extended to the appellants.
2. Brief facts of the case are that on 15-12-2004 at 9-30 a.m. vide Daily Diary No,15, the police party of Police Station Baldia Town headed by Inspector Sarfraz Khan, S.H.O. of Police Station Baldia Town, left police station for snap checking and at about 11-30 a.m. when they were busy in checking the vehicles at Afridi Colony, Baldia Town, they stopped a Toyota car No, P-6253 for checking purpose but two persons who were sitting on the rear seat of the car, alighted from it and ran away while the remaining 2 persons were apprehended. On enquiry they disclosed their names as Rabnawaz Khatak and Wasim Sajjad. On checking of the car, 4 plastic bags/Borries were found available in the Diggi of the car, containing total 81 packets of Charas weighing 84 kilograms. One packet weighing 1200 grams was taken from each Bag/ Bori and was sealed for chemical examination while the remaining 77 packets were separately sealed in 4 Borries. The apprehended accused also disclosed the names of their accomplices who ran away, as Fazal Akbar and Ejaz Khan Afridi. On personal search, the driving licences etc. were secured from both accused and a registration book of the above Car No, P-6253 was also secured from the possession of the accused Wasim Sajjad.
Such Mashirnama of arrest and recovery was prepared at the spot in presence of Mashirs ASI Abdul Sattar and HC Muhammad Anwar. Thereafter, the accused and case property were taken to Police Station Baldia Town, where the S.H.O. Sarfraz Khan registered F.I.R. No,176 of 2004 at 1-00 p.m. for the offence under section 6/9(c), C.N.S. Act, 1997.
3. During the interrogation conducted by S.H.O. Sarfraz Khan, both the arrested accused disclosed that 2 Bories of Charas weighing 46 kilograms are kept in the house near Mazar of Heresy Shah Baba, Afridi Colony, Baldia Town, and that they can also get such Charas recovered. On such disclosure the SHO together with his police party took both the accused towards the place as pointed out by them. Accused got the vehicle stopped near their house and then pointed out the house in which the accused Rabnawaz entered after opening the door and it was about 5-00 p.m. when the accused pointed out 2 plastic Bones containing Charas. There were 22 packets of Charas in each Bori, weighing total 46 kilograms. One packet of Charas weighing 1050 grams was taken from each Bori and sealed for chemical examination while the remaining 42 packets of Charas weighing 43 kilos and 900 grams were sealed separately in 2 Bories. Such Mashirnama of arrest and recovery was prepared at the spot in presence of Mashirs HC Muhammad Anwar and PC Ehsanul Haq. Thereafter, the arrested accused together with the case property were taken to Police Station Baldia Town where another F.I.R. No,177 of 2004 was registered by the SHO on the same date at 6-15 p.m. for the offence under section 6/9(c), C.N.S., Act.
4. On completion of investigation, the above named accused were challaned in the above 2 cases respectively, vide Charge Sheets No,1 of 2005 dated 4-1-2005 and No,2 of 2005 dated 4-1-2005.
Whereas the Charge Sheet No,1-A of 2005 dated 4-1-2005, in connection with Crime No,176 of 2004, was separately submitted before the trial Court against the absconding accused Fazal Akbar and Ejaz Khan.
5. During trial the accused Rabnawaz and Wasim Sajjad pleaded not guilty to the charge framed by the trial Court respectively in the above 2 cases. The prosecution then examined the same complainant Sarfraz Khan, SHO/Inspector and Investigating Officer Abdul Razzaq, SIP in both the cases. However, the Mashirs namely HC Muhammad Anwar and PC Ehsanul-Haq were respectively examined by the prosecution in the above 2 cases. During their evidence, the P.Ws. also produced the F.I.Rs,, memos of arrest and recoveries, copies of relevant entries of daily diary and reports of Chemical Examiner. The statements under section 342, Cr.P.C. of the accused were then recorded respectively. The accused did not examine themselves on Oath, however, they examined Shaukat Khan and Arif Khan in their defence. After hearing the parties, the learned trial Court awarded conviction and sentence to the appellants as mentioned above.
6.We have heard Mr. Naeem Ahmed Khan Tanoli, learned counsel for the appellants, Mr. Ali Haider Saleem, Assistant Prosecutor-General for the State and also perused the relevant material available on record.
7. Learned counsel for the appellants, after arguing on merits of appeals at some length, pressed for the disposal of appeals with leniency in reduction of sentences contending that the poor appellants are continuously in custody since the day of their arrest effected on 15-12-2004 and they have faced the agony of protracted trial and have remained in custody for about 5-1/2 years.
He also submitted that the appellants were young persons aged about 26 and 27 years at the time of their arrest therefore there are mitigating circumstances for taking a lenient view in awarding lesser punishment to them while reducing their substantive sentences. He also submitted that the appellants are first offenders and contraband Charas was comparatively a less dangerous narcotic drug and even otherwise, the sample of substance sent for chemical examination and certified to be the Charas, was less than 10 kilograms therefore, the appellants are entitled for further leniency. In support of his above submission, the learned counsel for the appellants also placed his reliance on the cases reported as 2006 SCM R 1051, 2009 PCr.LJ 355 and 403, and 2005 PCr.LJ 1173, 1278 and 1506.
8. On the other hand, the learned Assistant Prosecutor-General did not oppose the request of learned counsel for appellants for reduction in the sentences, frankly conceding further that the same appellants could not be awarded double punishment in 2 cases of similar nature and therefore both sentences of them are to run concurrently.
9. We have considered the above submissions and also gone through the case law as relied upon by learned counsel for the appellants which, no doubt, supports his submission for reduction in the sentences, despite the fact that the case of prosecution as is evident from relevant record, was established through convincing evidence adduced before trial Court and therefore, the accused were rightly found guilty of the charge in both cases as the same stood proved beyond any shadow of reasonable doubt. But, nevertheless, the contention of learned Assistant Prosecutor- General that the appellants could not be awarded double punishment of life imprisonment, also carries force as in a case of similar nature reported as Sanaf Gul @ Sunny v. The State (2005 PCr.LJ 370), the appellant faced 2 trials for the offence under section 9(c), C.N.S. Act and in both cases he was sentenced to life imprisonment. However, both the sentences of the appellant were ordered on his appeal to run concurrently for the reason that the imprisonment for life necessarily envisages imprisonment of 25 years in accordance with the spirit of section 57, P.P.C. read with section 397, Cr .P.C and the sentence of life imprisonment is only the next sentence after sentence of death and the concept of life is only one span, therefore, the imprisonment of life can only be for one life and since the trial Court had not mentioned anything in the judgments about the running of two sentences either consecutively or concurrently, therefore, the High Court can always take curative measures in such an eventuality.
10.Apart from above, there is also another case of identical nature reported as Muhammad Akram v. The State (2008 YLR 2332) in which the appellant was apprehended with recovery of Charas and such case was registered against him and thereafter, during interrogation, he made a disclosure and led the police to his house from where further Charas was recovered and then such a separate F.I.R. was also registered against him. After separate trials held in such cases, the appellant was convicted in both cases but in appeal his sentences which were already ordered to run concurrently, were reduced on the ground that he was first offender and the narcotics recovered from him were less dangerous. Likewise, in the case of Waris Khan and 2 others v. The State (2006 SCM R 1051) as relied upon by learned counsel for appellants, the sentence of petitioners was reduced on the sole ground that out of 48 packets only one packet of Charas and on packet of opium was sent for analysis to Chemical Examiner whose report was in positive to that extent, therefore, such quantity only was held to have been proved against the petitioners.
These authorities, of course, are relevant and applicable to the case of present appellants.
11.Since the appellants are first offenders as no report/record has been produced to show that they were previously convicted or involved in the cases of like nature and that the quantity of the Charas which was reported by the Chemical Examiner to be in positive, was less than 10 kilograms therefore, looking to the young age of the appellants and considering the mitigating circumstances as submitted by learned counsel for the appellants, we are persuaded to take a lenient view and accordingly, while maintaining the conviction of the appellants in the aforesaid two cases, reduce the sentences from life imprisonment to 10 years' R.I. and also reduce the fine from Rs,100,000 to Rs,50,000 each, in both the cases. In default in payment of such tine, they shall suffer S.I. for one year. These sentences shall also run concurrently. The benefit of section 382-B, Cr.P.C. already extended to the appellants, shall remain intact.
12.With the above modification in the sentences, the present Criminal Appeals are hereby dismissed accordingly.