' FAZAL-UR-REHMAN, J.--- This appeal has been preferred against the judgment, dated 1-9-1999, passed by the learned Judge of Special Court by which he convicted the appellant for the offence under section 6 of the Control of Naroctic Substances Act, 1997 (hereinafter called as Act), and sentenced him to suffer R.I. For 7 years and to pay a fine of Rs,10,000 or in default of payment of fine to undergo R.I. For six months. The benefit of section 382(b), was also extended to the appellant.
2. On 21-6-1996 P.W.2 Malik Saeed Jan, F.I.O./S.H.O. Police Station Anti-Narcotics Force (A.N.F.) Quetta on receipt of certain secret information to the extent that the appellant and 9 others are international smugglers of narcotics and had stored a huge quantity of heroin in the mountainous area of Konzai District Chagai for the purpose of taking out of country and for that purpose the heroine would be delivered to one Haji Jehangir Rekhi. The raiding party consisting of P.W. Tanveer- ul-Hanif, F.I.O. P.W. Muhammad Hanif, A.S.-I., P.W. Abdul Rasheed, Inspector and other members of A.N.F. Headed by Malik Saeed-Jan, F.I.O./S.H.O. Proceeded to Chagai in Government vehicles. The raiding party stayed at Chagai. In the early of the morning on 24-6-1996 he received fresh information to the extent that storage of heroine had been done. On the receipt of such information the raiding party reached the place which was near Pak Afghan border and saw two vehicles red and white in colour which were in moving condition. It is stated that on seeing the raiding party the smugglers decamped in the vehicles towards Afghan border and after crossing the Afghan border disappeared in the Afghan area. The area was then encircled at about 7-00 a.m. And a raid was laid down where no person was found present at the time of raid. It is stated that as a\ result of search 40 bags of heroine powder were recovered. 39 bags contained 50 packets each of one Kg.
Heroine weighing 1950 Kgs. Whereas, one bag contained 40 packets of one Kg. Each and thus, the total weighment of the recovered heroine was to the extent of 1990 Kgs. Samples for Chemical analysis, one packet of (1 Kg.) from each of 40 bags were separated and sealed parcel was prepared. Similarly, sealed parcels were also prepared in respect of recovered heroine contained in 40 bags, the same were taken into possession vide recovery memo. Exh.P.2/B. Malik Saeed Jan then wrote Murasila for registration of a case which was accordingly incorporated in the F.I.R. It is stated that the seized heroine except the samples was destructed on 2-7-1996. Shabbir Ahmed, Naib- Tehsiidar did appear before the Court as P.W.1 and produced certificate of the board regarding destruction of the heroine where the quantity has been indicated as 1990 Kgs. The appellant has been stated to have been arrested on 24-10-1998. On spy information from Dalbandin by P.W.
Muhammad Hanif, A.S.-I./A.N.F. After usual investigation the appellant was sent up to face his trial before the learned Special Judge/Sessions Judge, Nushki.
3. On 15-2-1999 a charge under sections 6, 7, 8 and 9 of the said Act was framed against the appellant to which he pleaded not guilty. During the trial the learned Special Judge, Nushki examined P.W.1 Sher Ahmed. NaibTehs I Id ar , P. W .2 Malik Saeed Jan. F .1.0. /S. -I . , P. W .3 Tanveer-u I -Hanif, P.W.4 Muhammad Hanif, A.S.-I. And thereafter, this case was transferred to learned Sessions Judge, Adhoc, Quetta as per order of this Court, dated 8th May, 1999. The learned Sessions Judge, Adhoc has proceeded with the case and examined P.W.5 Sycd Abdul Jabbar, Chemical Expert. In his statement recorded under section 342 Cr.P.C., the appellant has denied the allegation.
He has also made his statement on oath in disproof of the charge made against him. He has, however, led no other defence except his own statement. The learned Sessions Judge (Adhoc), Quetta/Special Judge after assessm ent of the evidence came to the conclusion that the offence punishable under section 6 of Control of Narcotics Act has been established while sections 7 and 8 of the said Act have not been established. The relevant portion of the judgment reads as under:- "Therefore, the offence punishable under section 6 of Control of Narcotics Act is established and section 7/8 are not established. Therefore, the accused is convicted and sentenced for 7 years' R.I.
And Rs,10,000 as fine, in default of payment of fine he has to further suffer R.I. For six months."
' It is in these circumstances that the present appeal has been filed.
4. We have heard Mr. Muhammad Aslam Chishti, Advocate learned counsel for the appellant and Mr. Shakil Mirza, Advocate learned counsel for the State.
5. Learned counsel for the appellant at the very out set contended that the impugned judgment, dated 1-9-1999 recorded by learned Special Judge is not legal one as the appellant has been convicted under section 6 of the Act which is not a penal clause, therefore, the conviction recorded under the said section is not sustainable. He has also contended that the trial Court has neither assessed nor properly appraised the evidence on the established principles for safer administration of criminal justice. He has argued that the destruction of 1990 Kgs. Of heroine and sending of samples to the Chemical Examiner make the prosecution case doubtful. He has also submitted that no. Recovery has been effected from the possession of the appellant. On the other hand learned counsel representing the State has contended that the appellant was seen at the spot and there was no reason to falsely implicate him with the commission of offence.
6. After having gone through the record of the case and the provisions of section 367, Cr.P.C. We see force in the contention of learned counsel for the appellant that the impugned judgment could not be termed as a "proper judgment" within the meaning of section 367, Cr.P.C. According to section 367 of the Cr.P.C. a judgment shall contain the points for determination, the decision thereon and the reasons for the decision. It shall specify the offence "if any" of which, and the section of the law under which the accused is convicted and the punishment to which he is sentenced. The judgment must not be vague, it must conform to the requirements of section 367, Cr.P.C. The impugned judgment on the face of it seems to be not legal.
7. The punishment for contravention of section 6 is provided under section 9 of the Act which section consists of three parts, its reads as under: - "9. Punishment for contravention of sections 6, 7 and 8.--- Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with-
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug psychotropic substance or controlled substance is ten grams or less;
(b) Imprisonment which may extend to seven year and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram:
(c) death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which not be less than one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (c).
' Provided that if, the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
8. Conviction and sentencing the appellant under section 6 for seven years' R.I. And fine of Rs,10,000 by the trial Court is not understood, which is otherwise, not a penal section. As stated earlier the punishment for contravention of section 6 is provided under section 9 of the Act. In the instant case the seized heroine has been indicated 1990 Kgs. The observations made by the Honourable Supreme Court of Pakistan in a case reported in 1996 SCM R p.3 are noteworthy. The relevant portion of which is reproduced below:-- "Before parting with the case it may be observed that the Sessions Judge had charged the petitioner and his companions for offence under Section 302, 149, 148, P.P.C. Manifestly the Court has not specified subsection of section 302. Its mention is neither mandatory nor necessary at the stage of the charge and may be ignored. But it concerns much if subsection is not specified in the judgment where conviction is awarded. In the case, in hands, the trial Court has convicted the petitioner and his companions for offence under section 302, P.P.C. And imposed sentence of death but has failed to specify its subsection. The Court has also not assigned any reason for not imposing sentence of Qisas or sentence of 25 years or lesser than that which sentences are also provided in the section. It also slipped from the notice of the High Court. Indeed, all is left to presumptions. It was bounden duty of the Court to have specified the relevant subsection of the section 302, P.P.C. Whereunder they were convicted and sentenced. Nothing should have been left to presumption. It is requirement of section 367, Cr.P.C. And is to be followed by the Courts."
9. In view of the above position we would not further comment upon the merits of this case and to dilate upon the other contentions of the learned counsel at this stage which may prejudice either of the party.
10. Accordingly, the present appeal is accepted, the impugned judgment and sentence awarded to the appellant is set aside and the case is remanded to the learned Sessions Judge (Adhoc), Quetta/Special Judge with directions to summon the parties and after hearing them, decide the case by writing a proper judgment, in accordance with law. The office is directed to send the record to the learned Sessions Judge, Adhoc, Quetta/Special Judge immediately.