Sadiq Mahmud Khurram, J. Muhammad Rashid son of Muhammad Yaseen (appellant) was tried by the learned Additional Sessions Judge, Mianchannu, in case FIR No.06 of 2016 dated 08.01.2016 registered at Police Station Tulamba, Tehsil Mianchannu, District Khanewal, in respect of an offence under Sections 9(c) of the Control of Narcotic Substances Act, 1997. The learned trial Court vide judgment dated 29.06.2017 convicted Muhammad Rashid son of Muhammad Yaseen (appellant) and sentenced him as infra:- Muhammad Rashid son of Muhammad Yaseen: Rigorous Imprisonment for four years under Section 9(c) of the Control of Narcotic Substances Act, 1997 and directed to pay fine of Rs.10,000/- and in default thereof to further undergo Simple Imprisonment for three months.
The appellant was however , extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.) "
2. Feeling aggrieved Muhammad Rashid (convict) lodged the instant Criminal Appeal No.576 of 2018 against his conviction and sentence challenging the judgment dated 29.06.2017 passed by the learned Additional Sessions Judge, Mianchannu, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as " the Act") as mentioned above.
3. Precisely the facts necessary , as divulged in the statement of Ijaz Ahmad, SI (PW -2) are as under: "On 08.01.2016 I was posted at P.S. Tulamba as SI. On the same date I alongwith other officials namely Allah Ditta 210/C, Abdul Razzaq 517/C, Muhammad Afzal 903/C on official vehicle which was driven by Ramzan 579/C were present at. chak No.21/8R in connection with watch and ward duty, where I received spy information that a person was present at Morr of chak No.11/8AR, and was busy in selling charras to his special customers, if the raid be conducted the accused be arrested and huge quantity of Charras could also be recovered from him. Upon which I made a raiding party and informer conducted raid at Morr of Chak No.11/8AR and on the pointation of spy informer caught hold a person whose name was afterwards known as Muhammad Rashid Slo Muhammad Yaseen caste Pathan Rio Chak No.11/8AR, Mianchannu accused present before the Court. On the search of aforesaid accused I got recovered charras from a polyphone shoper[sic] which he was holding in his right hand. Recovered charras P-1 on weighing 01-Kg. and 25 grams. I separated 10 grams of charras from the recovered charras for chemical analysis and made it into sealed parcel. On his further search Rs.800/- as sale amount within the denomination of (1X500, 2X100 and 2X50) were also recovered from accused. I took the recovered charras P-1 into possession vide recovery memo Exh.PB. Said recovery memo was attested by Abdul Razza q 517/C and Muhammad Afzal 903/C. I also took into possession sale amount of Rs.800/- P-2 with the denomination of (1X500 P3/1, 2X100 P- 4/1-2 and 2X50 P-5/1-2) into possessio n vide recovery memo Exh.PB/1 which was attested by Abdul Razzaq 517/C and Muhammad Afzal 903/C. I also drafted a written complaint Exh.PC and sent to police station through Allah Ditta 210/C for the registration of the formal FIR. I prepared the unscaled site plan of the place of recovery which is Exh.PD. All the notes points and drawings on the said site plan are in my hand writing and bears my signatures. I recorded the statements of PWs under Section 161 Cr .P.C. regarding the recovery memos.
On the same day i.e. 08.01.2016 I handed over the two parcels said to contain charras to Ghulam Farid. Moharrar P.S. Tulamba for its safe custody at Mall Khana of P.S. On 09.01.2016 accused was sent to judicial lock up. On 12.01.2016 Ghulam Farid Moharrar handed over to me a sealed sample, parcel said to contain charras for its onward transmission to PFSA Lahore which I deposited the same on the same day intact. I also recorded statement of Ghulam Farid under Sectio n 161 Cr.P.C. regarding parcel. Then I put the file of this case before S.H.O. for preparation report under Section 173 Cr .P.C."
4. On the above stated facts FIR No.6 of 2016 (Exh.P A) dated 08.01.2016 was registered at Police Station Tulamba, District Mianchannu.
5. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant was sent to face trial. The learned trial Court framed the charge against the accused on 03.03.2016 under Section 9(c) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial.
6. In order to prove the facts in issue the prosecution examined as many as three witnesses in total. Ijaz Ahmad SI appeared as PW-2 and Abdul Razzaq 517/C appeared as PW-3 who narrated the facts leading to the recovery of "Charras " weighing 1025 grams. Ghulam Farid 174/HC (PW-1) stated that on 08.01.2016 he recorded the formal FIR (Exh.P A) and also received the case property from Ijaz Ahmad SI (PW-2) and handed over the same to Ijaz Ahmad SI (PW -2) on 12.01.2016.
7. On 15.06.2017 learned ADPP gave up PW Muhammad Afzal 903/C as being unnecessary and tendered in evidence the report of Punjab Forensic Science Agency as Exh.PE and closed the prosecution evidence.
8. After closing of prosecution evidence the statement of appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to question No.5 stated as follows: "All the PWs are police officials and they deposed against me to strengthen this false case which has been registered earlier by police with malafide intention."
The appellant however neither adduced any evidence in defence nor opted to appear in terms of Section 340(2) of the Code of Criminal Procedure, 1898.
9. After completion of evidence and hearing both the parties the learned trial Court held the appellant guilty of offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997.
10. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that Ijaz Ahmad SI (PW-2) acted in a role of a witness as well as the investigating officer which militates against the dictates of law. Learned counsel also stated that nothing was recovered from the appellant, however , after these arguments the learned counsel has conceded to the fact that the conviction is correct, however , he pleads for the reduction in sentence of the appellant.
11. On the other hand learned Deputy Prosecutor General for the State submitted that the prosecution has proved the facts in issue by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other . With respect to the submission of the learned counsel of the appellant regarding the reduction of sentence, learned Deputy Prosecutor General has considered fairly and says that he would have no objection with regard to the same.
12. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
13. In order to prove the facts in issue the prosecution produced three witnesses, however Ijaz Ahmad SI appeared as PW-2 and Abdul Razzaq 517/C appeared as PW-3 who narrated the facts leading to the recovery of "Charras " weighing 1025 grams are of the utmost significance. While going through the statement of these witnesses, we have examined that the recovered 1025 grams of "Charras " was duly exhibited in their evidence as Exh.P-1 which was taken into possession through recovery memo Exh. PB. Both the witnesses have given each and every detail of the recovery proceedings and were cross examined at length. Nothing fruitful cropped up during the said cross examination. The tenor of cross-examination also reveals that the facts in issue were not being challenged seriously . We are also conscious of Section 29 of the Control of Narcotic Substances Act, 1997 which provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise. The report of Punjab Forensic Science Agency , Exh.PE, was also tendered in evidence which confirms the nature of recovered substance.
14. With regard to the objection of the learned counsel for the appellant that the Investigating Officer was the complainant also, we are of the considered view that when no prejudice is caused to the accused then functioning of the complainant in his dual capacity as an investigating officer is neither illegal nor unlawful. In the binding decision of the august Supreme Court of Pakistan reported as State, through Advocate General, Sindh vs. Bashir and others (PLD 1997 Supreme Court 408). It has been held that there is no legal prohibition under law for a police officer to be complainant if he is witness to the commission of an offence and also to be an investigating officer as long as it does not in any way prejudice the accused person.
15. In view of the material available on the record, we are of the considered view that the prosecution has successfully proved this case beyond shadow of doubt by producing relevant and admissible evidence. We are, however , of the considered view that in this particular case there are some special features relevant to determining the quantum of sentence. We have observed that the appellant is a young man and that this was his first conviction. We have also noticed that the appellant suffered the rigours of trial. We have also observed that it seems likely that the appellant would have mended his conduct in these years. Learned counsel for the appellant, on appellant's instructions, has earnestly and humbly prayed that the appellant may be given a chance to rehabilitate himself. The said request seems genuine as it is a fact that while being on bail, during the trial, the appellant did not repeat any such offence. There are the five philosophies of sentencing. The first one is retribution and the purpose is to emphasize taking revenge on a criminal, perpetrator or offenders. The next philosophy is incapacitation which means a way to reduce the chances of an offender committing another crime. Then is the deterrence in which a criminal is made to fear going back to jail or prison. Rehabilitation is also another philosophy of sentencing by which an effort is made to reform and rehabilitate a criminal, such as trying to give him a second chance. Reparation is the last of the five philosophies of sentencing in which effort is made to repay victim(s).
Indeterminate sentencing means that criminal punishment that, promotes rehabilitation through the use of unspecific sentences. The offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 has been made punishable with imprisonment which may extend to fourteen years or imprisonment for life or death. The very intention of the Legislature for providing indeterminate sentencing, by using the words "may extend to" in Section 9(c) of the Control of Narcotic Substances Act, 1997, was that it would provide for rehabilitation of a convict. Such provision of law providing for the unspecific sentences is indicative that the Courts have to appreciate circumstances indicative of reformation of a convict before deciding about the quantum of sentence. A reformed convict will not only be a better person for society but may also be helpful for his dependents. The plea of reduction in sentence, however , shall not be available to hardened and desperate criminals. The enormous increase in prison populations has led to severe prison overcrowding. Rehabilitation addresses the problem of prison overcrowding.
The Islamic theory of punishment derives from the Holy Quran and the Hadith. On the whole, the Holy Quran has about 200 verses dealing with the legal issues. The main goal of Islamic Penology is to secure human welfare, maintain peace and to establish a righteous society . It is very clearly enunciated in the Holy Quran that Allah has sent His messengers and the Holy Quran, so that men can establish justice. It is categorically expressed as: "God commands justice, righteousness, and spending on ones relatives, and prohibits licentiousness, wrongdoing, and injustice..." The discretionary punishments are flexible enough to take into account the needs of individual and society and also to realize the maximum general benefit to society and the reforma tion possibilities of the criminal.
Starting from exhortations and reprimands to flogging, to fines, and to imprison ment, Islamic Law has defined different types of discretionary punishments some of which are: a) Admonition (Al-W az) b) Reprimand (Al-T awbikh) c) Threat (Al-T andid) d) Boycott (Al-Hajr) e) Public Disclosure (Al-T ashhir) f) Fines and seizure (Al-Gharamah walMusadarah) g) Imprisonment (Al-Habs) h) Banishment (Al-Nafy)
The Criminal Justice Act, 2003 (2003 c.44) is an Act of the Parliament of the United Kingdom which received Royal assent on 20th November 2003. Section 142 of the Criminal Justice Act 2003 sets out five purposes of sentencing, to which any Court dealing with an offender must have regard. Section 142 of the Criminal Justice Act 2003 reads as under:- "Purposes of sentencing
(1) Any Court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing--
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(e) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences."
This is not intended to be a hierarchic al order . The Sentencing Council for England and Wales, created by Coroners and Justice Act 2009, has stated that "the Criminal Justice Act 2003 does not indicate that any one purpose should be treated as more or less important than another . In an individual case, any or all of the purposes may be relevant to a certain degree and it will be for the judge or magistrate to decide how they apply ." Hence the ultimate goal of rehabilitation is to restore a convicted offender to a constructive place in society through some combination of treatment, education, and training. The terminus a quo of these ideas in the WEST are the influential writings of H.L.A. Hart (1959) in England and John Rawls (1955) in the United States. The August Supreme Court of Pakistan has also observed in the case of Niaz-ud-Din v. The State (2007 SCMR 206) at page 209 as under-- "However , coming to the question of sentence we note that it has been conceded by, learned A.A.G. that petitioner is a previous non-convict and there is no other instance of petitioner's involvement in drug trafficking. It has also been brought in evidence that at the time of this arrest he met custodial violence and on that account he received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer . In these circumstances petitioner needs to be given a chance in his life to rehabilitate himself"
Hence, being guided by the case of Niaz-ud-Din v. The State (supra), and the case of State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 Supreme Court 671) we, while maintaining the conviction of the appellant but taking into consideration the above mentioned mitigating circumstances, reduce the sentence of rigorous imprisonment of four years to that of already undergone.
However , the sentence of fine of Rs.10,000/- shall remain intact but we reduce the period the appellant has to undergo in case of default of payment of fine from three months to fifteen days simple imprisonment. Therefore we while maintaining the conviction of the appellant recorded by the learned Addition al Sessions Judge, Mianchannu vide judgment dated 29.06.2017, dismiss the instant appeal with the above modification of the sentence.