IFTIKHAR MUHAMMAD CHAUDHRY, J.--This petition for leave to appeal is directed against the judgment, dated 18th July, 2000 passed by High Court of Balochistan Quetta. Relevant para. From the impugned judgment is reproduced hereinbelow:- "Since the quantity of drug is less than ten kilograms, therefore, sentence awarded under section 9(c) of the C.N.S. Act is uncalled for. And in view of the above, we inclined to reduce the sentence of life imprisonment to that of four and a half years' R.I and fine of Rs,10,000 and in default in payment of fine appellant shall further undergo in term of three months' S.I. With benefit of section 382-B, Cr.P.C. With the above modification in quantum of sentence, we see no merits in appeal, which is accordingly dismissed.
2. Precisely stating facts of the case are that on 16th May, 2000 vide F.I.R. No,10 of 2000 (Exh.P/3-A), S.H.O. Of Police Station Anti-Narcotics Force, Quetta registered a case against the respondent, stating therein that on day of incident in pursuance of spy information personal search of respondent was carried out near the Almo Chowk, P.S.O. Depot and recovered from his possession 2 kg. Charas. Accordingly on the registration of the case respondent was challaned before the Special Judge under the Control of Narcotic Substances Act, 1997. Learned trial Court on 10th June, 2000 read out charge against respondent under section 9(c) of C.N.S. Act, 1997. As respondent did not plead guilty to the charge, therefore, prosecution examined witnesses to substantiate allegation against him. Ultimately on completion of the trial, respondent was found guilty for commission of offence charged against him, as such vide judgment, dated 26th September, 2000, he was sentenced to life imprisonment with fine of Rs,10,00,000 and in default in the payment of fine, he was directed to further undergo imprisonment for a period of two years. Benefit of section 382-B of Cr.P.0 was also extended to him.
3. Respondent challenged conviction/sentence, passed against him by the learned Special Judge before the High Court of Balochistan in Criminal Jail Appeal No,298 of 2000, which came up for hearing before learned Division Bench, who disposed it of vide impugned judgment. Relevant para. Therefrom is reproduced hereinabove.
4. It may be noted that before the learned Appellate Court, respondent did not press appeal on merits but sought moderate reduction in quantum of sentence. Learned counsel appearing for the State consented for reduction of the sentence, as such appeal was disposed of accordingly.
5. Office has pointed out that petition is barred by 18 days. Learned counsel for the petitioner contended that under. Order. XXIII, rule 2 of Supreme Court Rules, 1980, time for filing of petition by the State is 60 days, therefore, petition is within time.
6. On merits, learned counsel contended that respondent was charged for the offence under section 9(c) of C.N.S. -Act, 1997 which provides sentence of death or imprisonment for life or imprisonment for a term which may extend to 14 years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b) i,e, if the quantity of the narcotic drug, psychoropic substance or controlled substance exceeds 100 grams but does not exceed one kilogram. According to him the quantum of sentence from life imprisonment with fine of Rs,10,00,000 has been illegally reduced to four and a half years' imprisonment with fine of Rs,10,000.
Therefore, learned Division Bench of High Court has rendered a void judgment against which no limitation will run. It was also argued by him that the learned High Court had not judicially exercised jurisdiction in drastically reducing the sentence of the respondent, therefore, the impugned judgment calls for interference by this Court. It was also his objection that no notice was given to the petitioner-Department, although it has appointed special prosecutor for conducting the case in terms of section 50 of C.N.S. Act, 1997 and the learned counsel appearing on behalf of the State through Advocate-General had not made representation on behalf of the petitioner, therefore, any concession made by her in this behalf was not in accordance with law and the learned Division Bench of the High Court may not have considered her such conceding statement, without getting authorization to appear on behalf of the petitioner and also permission to concede for the reduction in the quantum of sentence.
7. We have heard the learned counsel for the petitioner at length and have also gone through the impugned judgment carefully. It is an admitted fact that in this case no notice was issued to petitioner i,e, Anti-Narcotic Force. Department (A.N.F.) to enter appearance, therefore, the State Counsel who appeared on behalf of Advocate-General, Balochistan had no authority to made the concessional statement for the reduction of the sentence. Even if, it is presumed that she had authority to appear on behalf of A.N.F. But still she was not empowered under the law to give concessional statement for the reduction of the sentence of the respondent, contrary to the provisions of section 9(c) of C.N.S. Act, 1997. It has been experienced in number of cases, particularly in which Federal or Provincial Government or other agencies are parties, the learned counsel appearing on their behalf invariably make concession in favour of the opponent without realizing damage being caused to the Federal and Provincial Governments have to suffer considerable damage in terms of money and property as well as in criminal cases where criminals, whose convictions are secured after great difficulty on account of prevailing circumstances where nobody comes forward to make evidence on account of their terror. But at the same time, the Courts, seized with the matter, are equally responsible in accepting such statements because it is their duty to ensure that the concession on behalf of the State is being made lawfully and under the legal authority or otherwise and if Court comes to conclusion that concessional statement is being made to oblige the other side or it is the result of some extraneous consideration or without any legal authority, then the Court is not bound to accept the same. Similarly, there is no cavil with the proposition that discretion vests in the Courts in awarding adequate sentence but it is required to be exercised judicially and otherwise.. Because, in absence of such exercise of powers, the object of awarding sentence to an accused against whom guilt has been established successfully by the prosecution, will be frustrated. It is also to be noted that according to Jurist SALMOND "punishment is before all things deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him" [Jurisprudence (Edition) at page 111].
On perusal of the relevant provision of law, we are prima facie of the opinion that in the instant case, discretion has not been exercised judicially, because if the provisions of section 9(c) are read alongwith section 9(b), C.N.S. Act, 1997, keeping in mind that 2 kgs. Of Charas was recovered from the possession of respondent, he was not liable to the sentence to the extent of only four and a half years' imprisonment with fine of Rs,10,000.
8. After hearing learned counsel for the petitioner and inter alia examining the above questions, leave to appeal is granted subject to limitation.
9. If the respondent has been released from the custody, his non-bailable warrants be issued and till the decision of the appeal, he be lodged in Central Jail, Mach and if he has not been released from custody, then after causing his arrest he will be detained in same prison till further orders. As the respondent has been ordered to be kept in custody, therefore, office is directed to fix this case in the month of March, 2002, subject to soliciting necessary approval from Hon'ble Chief Justice.