' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This petition under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed with the prayer that order dated 12-3-2009 passed in Criminal Appeals Nos. 28 of 2004 and 625 of 2006 may kindly be reviewed in the interest of justice and conviction be set aside.
2. Precisely stating the facts of the case are that in pursuance of secret information that the petitioner, Mehmood Hassan Harvi, in consultation with international 'smugglers had smuggled Chars to Canada in 50 cartons in medicinal balls through Messrs.' Champ Sports Sialkot to Messrs Sears Canada Inc. Through air way Bill No,020-3248-4712 of Lufthansa Cargo Flight No,IH-902 which was checked at Dubai and on search, out of the medicinal balls 400 kgs. Hashish was recovered.
Accordingly, investigating team arrested the persons involved in commission of the offence including the petitioner and they were sent up to face trial. As far as the petitioner is concerned, he was convicted under section 15 of the Control of Narcotic Substances Act, 1997, on 12-2-2000 and sentenced to 10 years' R.I. With a fine of Rs, 500,000 and in default thereof to further undergo 6 months' R.I. The petitioner filed Criminal Appeal No,162 of 2001 before the Lahore High Court, Lahore.
During the pendency of the appeal the trial Court vide order dated 3-8-2001 confiscated the assets of the petitioner in favour of the Federal Government. Against this order as well the petitioner filed Criminal Appeal No, 1538 of 2001. Both the appeals were dismissed by the High Court on 24-12- 2003. It is to be noted that learned High Court enhanced the sentence from 10 years' R.I. To life imprisonment and also enhanced fine from Rs,500,000 to Rs, 1,000,000 and in default in payment of fine he was ordered to suffer 2 years' R.I. And it was further directed that he should be taken into custody and committed to the prison to serve out his remaining enhanced sentence, relevant paras from the judgment are reproduced herein below:-- "28. The quantity of the narcotics substance in this case definitely had acceded much more than 10-kg. The punishment for the offence, therefore, was imprisonment for life. We, therefore, maintaining his conviction, enhance his sentence to imprisonment for ten year's.
29. The drug trafficking is a big threat to the mankind these days. The drug smugglers are not only enemies of the mankind but they also bring bad name to the country in such like transactions. We, therefore, also feel persuaded to enhance the amount of fine from five lacs to one million The same is enhanced to that extent. In case of default in the payment of the same, he shall further stiffer two years rigorous imprisonment.
30. We have been informed that he stood released from jail after serving out his earlier sentence.
He be taken into custody and committed to the prison to serve out his remaining sentence."
3. It may not be out of place to mention that the petitioner filed Criminal Appeals No,28 of 2004 and 625 of 2006. Office raised objection about the maintainability of the appeals because the petitioner has not surrendered. However, the then Registrar directed for the registration of the appeals. Both the appeals came up for hearing before a bench of this Court and judgment under review was delivered on 12-3-2009. Relevant paras therefrom are reproduced herein below:- "9. We have gone through the contentions raised at the bar and have also got re-appraised the evidence in minute particulars. Appellant in this case has been involved on the spy information by complainant and thereafter machinery of law was put in action. It is pertinent to mention here that learned trial Court convicted appellant under section 15 of the Act and sentenced to ten years' R.I.
With fine of Rs, Five lacs and the learned High Court has enhanced the sentence to imprisonment for life and fine was also enhanced to Rs, Ten lacs. The contentions raised by learned counsel for the appellant seems to be convincing as the learned High Court erred in enhancing the sentence of appellant. Especially Exh.PN has been totally misread by the Court below in its true perspective which is an unproved document and without producing either scribe/sender or the recipient of the same. Accordingly, Criminal Appeal No, 28 of 2004 is partly allowed, the impugned judgment of the learned High Court is set aside and that of the learned trial Court is restored.
10. So far as Criminal Appeal No, 625 of 2006, the order of confiscation was passed by the learned trial Court in absentia as at the relevant time appellant was in jail and no opportunity of hearing was provided to him to substantiate his case. In view of above, Criminal Appeal is allowed and order dated 3-8-2001 passed by learned trial Court is set aside."
4. Mr. S. M. Zafar, learned Senior Advocate Supreme Court for the petitioner, contended that there is absolutely no evidence against the petitioner and this Court in fact after having concluded so, but has maintained conviction/sentence, therefore, there is error apparent on the face of the record which warrants interference by this Court by allowing the review petition. On the other hand learned counsel for the Caveator/ State, Mr. Niaz Ahmed Rathore, stated that there is overwhelming evidence against the petitioner on the basis of which he was convicted by the trial Court and his sentence was tightly enhanced. He stated that the State through Anti-Narcotics Force is also aggrieved from the said judgment and a Criminal Review Petition No, 111 of 2009 has also been filed on its behalf. We have pointed out to the learned counsel for the State that the review petition filed by the State is barred by 57 days and in the application submitted for coadunation of delay no sufficient ground has been disclosed for showing indulgence on limitation.
5. We have heard learned counsel for the petitioner and have gone through the relevant pares of the judgment under review which has been reproduced herein above.
6. A perusal whereof indicates that the contention so raised by the learned counsel to the extent of pointing out errors in the judgment apparent on the face of record may have some force because the learned bench, while taking into consideration and that too without discussing its implication (Exh.P-N), has not considered other material available on record. There is no doubt that it is the duty of the prosecution to establish the case but if the prosecution evidence produced before the trial Court and on the basis of which the sentence has been enhanced by the High Court (relevant para therefrom has been reproduced herein above), the Court should have taken into consideration all evidence available on record. His argument is that the conviction originally recorded by the trial Court as well enhanced by the High Court was based on no evidence, therefore, judgment of acquittal should have been recorded.
7. Therefore, in the interest of justice we consider it appropriate to allow this petition as a result whereof the judgment dated 12-3-2009 of this Court is recalled and the appeal filed by the petitioner as well as by the State bearing Nos. 28 of 2004 and 625 of 2006, because both the matters were decided by the common judgment, shall be deemed to have been pending and following the judgment of this Court in the case of Barkat All v. Arshad Ali and 2 others (1994 SCM R 492). The ease/appeals shall be reheard on an appropriate date.
8. As far the petitioner is concerned, his sentence enhanced by the High Court stands restored in view of accepting the review petition filed by the petitioner, therefore, he is ordered to be taken into custody and to be kept in jail till the decision of his appeal as well as the appeal filed by the State.
9. As far as Criminal Review Petition No 111 of 2009 is concerned, it is dismissed as being barred by time.