Miss Aalia Neelum, J.--This criminal appeal is directed against the order dated 04.04.2017 passed by the learned, Sessions Judge/Judge Special Court for CNS, Lahore, in case FIR No.26 of 2014, dated 17.05.2014, under Section 9(C) CNSA, 1997, Police Station ANF, Lahore, whereby the appellant confessed his guilt before the learned trial Court so, he was convicted and sentenced to 09 years & 07 months RI with a fine of Rs.96000/- and in default thereof to further undergo 06 months S.I. Benefit of Section 382-B, Cr .P.0 was also extended to him.
2. The prosecution story , in brief, as per contents of F.I.R (Ex.P A/1) is that on 17.05.2014 the high ups received spy information that Muhammad Ali Shah, Alam Sher and Ashfaq Ahmad were dealing the narcotics and they would pass from Motorway Kala Shah Kaku Toll Plaza on their Corolla Car bearing No.6584/IDK at about 5.00 p.m for purpose of supplying the narcotics to their customers at Sheikhupura. On this information, a raiding party consisting upon the Informer , Tanzeem Sarwar etc, complainant (PW-4), Muhammad Ehsan, ASI (PW-5), Hassan Anwar , ASI (given up PW), Riasat Ali, HC, Asif Farooq, Sabir Ali, Tariq Mahmood, Amjad Afridi and Abdul Rashid Constables, Shaukat Ali Sepoy , Sajjad Ahmad, Khalid Hussain, Drivers under the supervision of Hamood-ur-Rehman AD, while on official vehicles, at about 4:30 p.m, reached Kala Shah Kaku Toll Plaza and started checking of vehicles coming from the above said Toll Plaza. On the same day, at about 5:30 one Corolla Car bearing 6584/IDK was seen coming from Kala Shah Kako Toll Plaza. and when the above said vehicle came on close range, on the pointation of the Informer , three persons riding in the car were apprehended. The person, who was apprehended from the driving seat of the car disclosed his name as Muhammad Ali Shah. On asking about narcotics, the accused 'Muhammad Ali Shah produced 06 packets of charas beneath the driving seat. On the asking, the person who was apprehended from front seat of the car disclosed his name as Alam Sher (the appellant). On asking about narcotics, the appellant-Alam Sher produced 08 packets of charas from his lap. During interrogation, the person who was apprehended from rear seat of the car disclosed his name as Ashfaq Ahmad. On asking about narcotics, Ashfaq Ahmad-accused produced 06 packets of opium from blue shopper having in his lap. Muhammad Ali Shah- accused after some reluctance further disclosed that he concealed 16 packets of charas in secret cavity on the back side of rear seat of the car and produced the above said 16 packets of charas from the above said secret cavity on the back side of the rear seat. Muhammad Ali Shah produced 06 packe ts of charas beneath the driving seat of car and on weight it was found 1200-grams each total 7.200 kgs (P-1), which was taken into possession vide recovery memo. (Ex.PB). Out of the recovered substance 10 grams was separated for chemical analysis.
During weight of 06 packets of opium recovered from the possession of Ashfaq Ahmad from his lap, it was found 1200-grams each total 7.200 kgs (P-2), which was taken into possession vide recovery memo. (Ex.PC), whereas the charas 16 packets produced by Muhammad Ali Shah-accused from the back side of, rear seat of the car was weighed and those were found 1200-grams each total 19.200 Kgs (P-3), which was taken into possession vide recovery memo. (Ex.PD) and out of which 10-grams was separated for chemical analysis. During further search of Muhammad Ali Shah the accused, the complainant took into possession PKR 1000 (P-5), CN1C (P-6), Mobile phone with SIM (P-7), miscellaneous visiting cards (P-8) and purse brown colour (P-9), which were taken into possession vide recovery memo. (Ex.PE). The complainant (PW-4) drafted the complaint (Ex.P A) and sent the same through Amjad Afridi Constable to the Police Station for registration of the formal FIR (Ex.P A/1).
3. After receiving the report under Section 173, Cr.P.0 by the learned Judge, Special Court CNS, Lahore, the appellant was produced in police custody on 15.09.2014, the copies were distributed to him and the proceedings were adjourned for framing of the charge on 22.09.2014. On 04.04.2017 two prosecution witnesses were present in Court, when appellant moved an application for recording his confessional statement.
4. Learned counsel for the appellant contends that the he is not pressing appeal on merits and he only prayed for reduction in sentence awarded to the appellant by the learned trial Court.
5. On the other hand, the learned Special Public Prosecutor for ANF has states that narcotics has been recovered from the appellant and he made confessional statement before the learned trial Court on his own so he is not entitled to any concession.
6. Heard. Record perused.
7. On 22.09.2014, charge under Section 9(C)/15 CNSA, 1997 was framed against the appellant and the appellant pleaded guilty . The learned trial Court recorded confessional statement of the accused, which is reproduced as under:-- "Accused Muhammad Ali has admitted that on 17.05.2014, he was apprehen ded by ANF from car No.IDK- 6584 near Kala Shah Kaku T oll. Plaza Sheikhupura, and he got recovered 9.600 kgs charas."
Record clearly reveals that the appellan t was intimated about the charge and consequences and show-cause notice was given to the accused/appellant under Section 243, Cr.P.C. The appellant remained consistence with his statement. The learned trial Court after fulfilling codal formalities recorded his confessional statement and certified that it was true and voluntarily . We are satisfied that the accused/appellant made his confessional statement voluntarily and it does not suffer from any defect of form or substance. No doubt the confession has been retracted by the accused/appellant but mere retraction is not enough to make it involuntarily or diminished its intrinsic value.
Even otherwise, by virtue of the provisions of Section 412, Cr.P.0 an accused, who pleaded guilty to the charge has no right of appeal against his conviction but he can maintain an appeal only to the extent of the legality of the sentence passed against him by the learned trial Court. However , as regards the question of sentence awarded by the learned trial Court to the appellant, we have carefully gone through the record available on the file and found that it was his first offence. Since the appellant is first offender as no report/recor d has produced to show that he was previously convicted or involved in cases of like nature, the case of the appellant calls for a lenient view.
Reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan titled "Abdul Rehman v. The State" (2011 SCMR 965 ), wherein it had been held that :-- "After perusal of the record in the light of the arguments advanced before us, it appears that there is no previous record of the conviction of the petitioner in any offence. The recovery effected is charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view"
In the case of "Khuda Bahhsh v. The State" (2015 SCMR 735) the Hon'ble Supreme Court of Pakistan has held that:-- "Charas unlike other narcotics such as heroin is less harmful and dangerous in the present case, keeping in mind the quantity (two kilograms), type of narcotic substance (charas) and as this was the appellant's first offence, the sentence of imprisonment for life awarded to the appellant 'appears to be excessive. The imprisonment for life or death is attracted when the threshold of ten kilograms (proviso to Section 9) is reached. Section 9(c) also provides for imprisonment for a term of up to fourteen years, and if ..........................................
In the case of, State through the Deputy Director (Law) , Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi reported as PLD 2017 Supreme Court 671 the Hon'ble Supreme Court of Pakistan has held that:-- "The exercise of jurisdiction and discr etion in the matter of the respondent's sentence by the trial Court and the High Court have not been found by us to be open to any legitimate exception, particularly when the reasons recorded for passing a reduced sentence against the respondent and for making a departure from the above mentioned sentencing guidelines have been found by us to be proper in the peculiar circumstances of this case."
The report sent by the Superintendent District Prison, Attock through Letter No.3566 'dated 12.03.2019 reveals that the appellant had already served five years, eleven months and twelve days in the jail. We think that the ends of justice will be served by maintaining the convictions but reducing the sentence to the period already undergone by the appellant, whereas, fine to Rs.96,000/ -and in default of payment of fine, he (the appellant) shall further undergo simple imprisonment for six months as imposed by the learned trial Court would remain intact.
8. With this modification, this appeal is hereby dismissed.