IRFAN SAADAT KHAN, J.---This Criminal Jail Appeal has been filed against the Judgment dated 19- 10-2010 passed by Special Judge-II, C.N.S., Karachi in F.I.R. No. 14 of 2010 under section 9(c) of C.N.S. Act 1997 at Police Station Kalakot.
2. Briefly stated the facts of the case are that on 13-1-2010 at about 2030 hours at Mirza Adam Khan Road, near Dhobi Ghat, Karachi, the accused was apprehended by S.-I. Mehboob Elahi, who is also complainant in this case, with the help of other police officials and recovered 170 Rods of charas weighing 1700 grams from the possession of the accused. Charge was framed on 1-4-2010, thereafter the accused filed an application for pleading guilty without any undue influence and impression. He was given time by the Court to think over the matter and thereafter again produced before the Court when he reiterated that he wants to plead guilty and admitted commissioning of the offence, however prayed for mercy and taking a lenient view in the matter. The learned Judge after finding the accused guilty of the charges however took a lenient view and convicted R.I. For 4 years and fine of Rs.20,000 and in default of payment of fine to suffer R.I. For 10 days more. It is against the said decision that the present Criminal Jail Appeal has been filed.
3. The accused was produced before us on 11-5-2011 when he requested that he is a poor person and some Counsel may be provided to him probono. Mr. Sibtain Mehmood Advocate, who was present in the Court in some other case, accordingly consented to assist the Court and to appear in the case of the appellant probono, for which purpose the case was adjourned to 26-5-2011.
4. Today Mr. Sibtain Mehmood appeared on behalf of the appellant, who was also produced in custody, and submitted that no doubt the appellant had pleaded guilty but submitted that a lenient view may be taken in this case and operation of the impugned order be suspended and he may be released on bail.
5. Ms. Akhter Rehana, learned A.P.-G., at the very outset, submitted that in view of section 412, Cr.P.C.
No appeal lies to the High Court as the accused had pleaded guilty, therefore, in view of provision of section 412, Cr.P.C. No relief could be granted to the accused.
6. While making the rebuttal Mr. Sibtain Mehmood invited our attention to the decisions reported as Nick Kajtazi v. The State (PLD 1977 Karachi 1049) and Jantan Bibi v. The State (2010 PCr.LJ 164), Shamoon Jatoi v. The State (1996 PCr.LJ 783) and submitted that an appeal could be filed against such conviction to call into the question extent or legality of a sentence hence the appeal filed in this regard by the accused was very much maintainable. He submitted that out of the 4 years of conviction granted to the accused he had already undergone sentence of more than 2 years and 8 months and the unexpired portion of his sentence comes to less than one year and 4 months, he therefore submitted that in the interest of justice the accused may be released by taking a lenient view.
7. The learned Counsel also submitted that whereas the quantity recovered was 1700 grams in shape of 170 slabs of 10 grams each but only one slab of 10 grams was sent for chemical examination. He further submitted that even that chemical examination report is not available on record. He therefore submitted that the appellant could only be convicted for possessing 10 grams charras in accordance with the decision given by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Hashim v. The State reported in PLD 12004 SC 858.
8. We have heard both the learned Counsel at some length and have perused the record and the decision relied upon.
9. It is noted that there is no denial to the fact that the accused was apprehended red-handed, carrying 1700 grams of charas comprising of 170 rods and the accused had neither denied the possession of the same nor had shown that the case made out against him by the prosecution wasfalse and the said charge had illegally been foisted upon him. Ample opportunity of hearing was provided to him by the learned Trial Court to explain his view point and nothing incriminating in this regard had been proved by the accused. It is seen from the record that the accused vide application dated 17-8-2010 addressed to the Special Court had categorically stated that "he admits his crime but only requests the Court to give him the lesser punishment as he is having small kids". It is seen from the said application that the title of the said application specifically mentioned as ( ). It is seen from the record that after receiving the said application the learned Judge granted him sometime to think over the matter but his deposition remain unchanged. It is also seen that in the statement recorded under section 342, Cr.P.C. The learned Judge asked from him certain questions and he replied answer to each question in affirmative. For the ease of reference his statement recorded under section 342, Cr.P.C. Is reproduced hereinbelow:-- "Q.No.1: It has come on record that on or about 13-1-2010 at 2030 hours at Mirza Adam Khan Road, near Dhobi Ghat, Karachi you were apprehended by the Complainant S. -I. Mehboob Elahi with help of other police officials and recovered 170 Rods of Charras weighing 1700 grams from your possession.
What have you to say?Ans. It is correct.
Q.No.2: Why you did not plead guilty at earlier stage i.e. At the time of framing of charge?Ans. Earlier I did not admit the charge, now I am admitting the charge and will not again commit the crime.
Q.No.3: Do you know the consequences of pleading guilty?Ans. Yes, I am aware.
Q.No.4: Have you been compelled, threatened, prompted and promised by some one for pleading guilty?Ans. No Sir, I am pleading guilty without any undue influence.
Q.No.5: Are you in your senses?Ans. Yes Sir.
Q.No.6: Why are you pleading guilty now?Ans. I am pleading guilty now.
Q.No.7: Do you want to say anything else?Ans. I will not repeat the crime and will lead the life of a good citizen".
It is only thereafter that the learned Judge in spite of giving the accused the sentence as specifically mentioned in section 9-C, C.N.S. Act awarded him a lesser punishment. Provision of section 9(c) is reproduced as under:--"Death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotics drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment of life".
10. Perusal of above section reveals that if narcotics above 1000 grams is recovered from a person a sentence comprising of death or imprisonment for life or imprisonment for a term which may extend to 14 years and shall also liable to fine which may be upto one Million rupees has to be awarded but in the instant case the learned Judge after taking a very lenient view granted a sentence of 4 years only and fine of Rs. 20,000 and in default to pay fine to suffer R.I. For 10 days only, to which in our considered view no exception could be taken.
11. So far as the decision given by one of us namely Irfan Saadat Khan, J. In the case reported as 2010 PCr.LJ 164 is concerned, it is stated that in that case also an application for taking a lenient view was given by the accused after accepting the guilt and it was observed as under:-- "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 C.N.S. 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's R.I. Therefore, we are not inclined to further reduce the sentence".
12. However the next case relied upon by the learned Counsel PLD 1977 Karachi 1049, appears to be quite distinguishable from the facts of the present case.
13. As far as the reliance of the learned counsel on Muhammad Hashim's case is concerned, the case is not applicable to the appellant as in the statement of confession reproduced above, he has confessed to the possession of 1700 grams of charras.
14. Learned A.P.-G. On the other hand has relied upon the decisions reported as Mubarak Ali v. The State, (PLD 2009 Lahore 632) and Surraya Bibi v. The State (2008 SCM R 825). In the first judgment it was held by a Division Bench of Lahore High Court that "as the accused was arrested red-handed with huge quantity of Narcotics petition for suspension of sentence was dismissed in the circumstances". In the case of Surraya Bibi the Hon'ble apex Court observed as under:- "8. We may point out here that in the cases pertaining to offence of narcotics, it has been seen that the drug peddlers, to achieve their nefarious objects, have adopted obnoxious device by engaging womenfolk and the children and through them crime is being committed and ultimately mercy is sought against such accused on humanitarian grounds, etc. Therefore; to curb such menace, Courts are required to award adequate punishment instead of showing sympathy on the ground that accused is woman or a child; otherwise, the actual accused involved in such heinous crime, which is against the society, would be encouraged and carriers would also be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking".
15. In view of observations made above and in view of the explicit decisions given by the Courts mentioned supra, we have come to the conclusion that no case of interference is made out as in our opinion the learned trial Court had already taken a lenient view by awarding a lighter sentence to the appellant. It may be noted that it was not brought to our knowledge by the APG that any appeal has been filed by the'State for enhancement of sentence against the order passed by the trial Court or not.
16. We, therefore, find no merit in this appeal and hereby dismiss the same. However, before parting with the order we would like to record our appreciation for able assistance provided to us by Mr. Sibtain Mehmood Advocate and for graciously accepting our request for appearing in this case probono