Through this appeal under Section 48 (1) of Control of Narcotic Substances Act, 1997, the State has prayed for enhancement of respondent?s sentence on the ground that when learned trial Court has observed in conviction judgment dated 14.9.2015 that prosecution case is proved beyond any shadow of doubt, then no justification was left with learned trial Court to award lesser punishment to the respondent and thus by allowing this appeal, maximum punishment be awarded to the respondent according to the sentencing policy formulated in case of "Ghulam Murtaza and another Vs The State" (PLD 2009 Lahore 362).
2. Heard. Record annexed with this appeal perused.
3. Shortly the prosecution case is that on 30.3.2015, in consequence of spy information, police party comprising Muhammad Arshad, SI, Liaquat Ali, ASI, Muhammad Arshad, Constable-743, Umar Hayat, Constable 209/C and Gulshan Rani, Lady Constable-767 apprehended the convict respondent and on her personal search by lady constable, heroine weighing 1053 grams was recovered from her possession and out of said heroine, one gram heroine was separated for chemical analysis.Consequently , F.I.R No.107/2015 dated 30.3.2015 under section 9(c) of Control of Narcotic Substances Act, 1997 was chalked out against the respondent. After observing remaining formalities of investigation, finding the respondent guilty in investigation, report under section 173 Cr.P.C. was submitted before the trial court. The accused respondent was indicted by the learned Judge Special Court for CNSA, Pindi Bhattian on 9.5.2015 and since the convict claimed trial, therefore, prosecution in order to bring home charge produced its evidence. During recording of evidence of the prosecution, when statements of three prosecution witnesses were recorded, respondent intended to record her confess ional statement, whereupon she was given an opportunity to reconsider about the same and on reconsideration, she was found adamant to record her confessional statement, which was recorded to the following ef fect: - "I am addict person and due to my bad society I indulge myself in heroin addiction but now in jail I have given up this habit. I swore on Holy Quran that I did not indulge in any sort of addiction and remain careful in future.
Heroin in my possession was only for my personal use. I am a household lady having four minor children, one son and three daughters and there is nobody else to look after them. One minor daughter is living with me in jail. My children are leading their miserable life.I have committed an offence due to misunderstanding. I am previous non-convicted and non-record holder. I while confessing my guilt undertakes not to indulge myself in such like cases, leave myself on the mercy of this court with the request to take a lenient view".
Thereafter , learned trial Court after putting the confessional statement of the respondent in juxtaposition with the prosecution case, convicted and sentenced the respondent as under:- "Keeping in view all above facts, a lenient view is taken and the accused is sentenced to undergo R.I. for a period of six months and fine of Rs.5,000/- and in default thereof to suffer S.I. for further 07 days. She is extended benefit of Section 382-B Cr .P.C."
The controversy which requires resolution by this Court is that whether a Court having jurisdiction to try the cases relating to CNSA, 1997 can deviate from the sentencing policy or not, answer is in affirmative because in the case of Ghulam Murtaza & another Vs The State" (PLD 2009 Lahore 362) it has been held that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure". Here a question arises what would be special features for consideration by learned trial Court to deviate from the sentencing policy. In this regard, it is submitted that the same has not been clearly explained in the judgment supra rather it has been left at the discretion of the Court to consider the facts of the case and extricate from these facts those elements, which would be termed as special features for departure from the sentencing policy and that too it varies in each case. In the present case, we find that the accused respondent in her confessional statement has categorically stated that she has four children: one son and three daughters and out of these children one minor daughter was living with her in jail; and that there was no one else to look after them. It would be pertinent to mention here that when a father or mother is sent to prison the shattering impact on his/her family is often underestimated or ignored while the offender is inside, on the outside his/her family faced their own form of punishment. His/her incarceration had a devastating effect on the couple and their children in addition to general impact of imprisonment on children life which includes lack of caring, non-stability of emotions, non-seriousness in behaving, financial crises, developing of mental health problem s etc. For these reasons, in the judgment supra, it has been laid down that if a woman and a child, because of their gender and tender age, are to be awarded 1/3rd less sentence of imprisonment, fine and sentence in defau lt of payment of fine than the prescribed normal sentence. Moreover , it is the case of the prosecution that at the time of search heroine weighing 1053 grams, which was put in a white colour shopper , was recovered from the accused respondent. The F.I.R as well as evidence so produced by the prosecution is silent about the fact that whether recovered contraband was weighed after taking it out from the said shopper or otherwise. So, prima facie, exact weight of contraband is unascertainable in this case coupled with the fact that only a meager quantity of 53 grams brings the respondent? s case within the mischief of section 9(c) of Control of Narcotic Substances Act, 1997. Since the accused respondent has shown repents on her act and undertook to mend her ways coupled with the fact that prosecution has not raised any objection on recording confessional statement of the accused respondent and has not brought any evidence on record that the accused respondent was ever previously convicted, therefore, we are of considered view that learned trial Court has rightly convicted and sentenced the respondent as stated above.
Moreover it is a normal and common practice that when an accused surrendered himself at the mercy of the court, the courts always took lenient view in respect to sentence him. In this regard, reliance is placed upon the case of "State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force Vs Mujahid Naseem Lodhi" (PLD 2017 SC 671). So, we are not persuaded to interfere in the judgment rendered by the learned trial Court.
4. What has been discussed and observed above, this appeal is dismissed in limine.