' MIAN MUHAMMAD JAHANGIR, J.--- Muhammad Nadeem appellant was tried by the learned Sessions Judge, Rawalpindi/Special Court constituted under the Control of Narcotic Substances Act, 1997, under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order (4 of 1979) read with section 9(c) of the Control of Narcotic Substances Ordinance, 1995, vide F.I.R. No,18 dated 30-3- 1995, registered with Police Station Anti-Narcotic Force, Rawalpindi and was sentenced to life imprisonment and a fine of Rupees one million, in default of payment of fine the appellant had to undergo 3 years' R.I. Vide judgment dated 27-9-1997.
2. The brief facts of the prosecution case are that the appellant was apprehended while he was carrying Charas weighing 1450 grams in a bus while he was travelling from Peshawar to Faisalabad. The appellant filed an appeal against his conviction and sentence before the Federal Shariat Court where it remained pending for about 314 days thereafter the appeal was transmitted to this Court and the learned counsel for the appellant contends that the appellant has already served out his entire sentence and is now undergoing the sentence for non-payment of the fine imposed and he does not press this petition on merits provided the punishment of fine is reduced adequately as the same is too harsh keeping in view the quantity and nature of the narcotics recovered from his possession which was mere a Charas and was not so dangerous.
3. Learned Law Officer has opposed the reduction of sentence by arguing that the appellant was involved in a heinous offence which is rising in the society, therefore, no lenient view should be taken against the appellant.
4. We have given the anxious consideration to the arguments advanced by the learned counsel for the appellant as well as the learned Assistant Advocate-General at Bar and have perused the record.
5. The point for determination is as to whether the punishment in lieu of fine may be reduced or not.
This proposition can be resolved only in the light of the relevant provisions of law. So far Article 4 of the Prohibition (Enforcement of Hadd) Order (4 of 1979) is concerned, it deals with the punishment which may extend to two years or with whipping not exceeding 30 stripes and also with fine in case of owning or possessing any intoxicant. Intoxicant means articles specified in schedule, intoxicant liquor or any other article or substance which is notified to be an intoxicant by the Provincial Government and in accordance with the second proviso to Article 4, in case of heroin, or cocaine, opium or coca leaf if the quantity exceeds 10 grams in case of heroin or cocaine or one kilogram in case of opium or coca leaf the punishment is up to imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding 30 stripes and is also liable to fine. Therefore, it reveals from Article 4 and the Schedule that Charas is also intoxicant but there is no reference of it or its limit in II proviso to Article 4, therefore, in case of possessing or owning Charas in any quantity the punishment could be up to two years as mentioned above.
6. Whereas section 9(c) of the Control of Narcotic Substances Ordinance No,VI of 1995, enforced on 22-2-1995 provides the punishment in the offence as under:-- "death or imprisonment for life, and shall also be liable to fine which shall not be less than one million rupees, if the quantity; of narcotic drug psychotropic substance of controlled substance exceeds the limits specified in clause (b)."
7. The punishment in default of payment of fine is given in subsection (2) of section 16 of the Control of Narcotic Substances Ordinance, 1995 which is as under:-- "Under section 16(2) of the Control of Narcotic Substances Ordinance, 1995, where the Special Court directs that an offender shall be imprisoned in default of payment of fine, such imprisonment shall not be less than one-fourth of the term of imprisonment which is the maximum fixed for the offence under this Ordinance."
8. Meaning thereby, it is obvious that when the imprisonment for life is equal to 25 years, the punishment in default of payment of fine of Rs,10, 00,000 being 1/4th shall be six years and 3 months.
9. In view of above admitted legal position it is obvious that the punishment in default of payment of fine awarded by the learned trial Court is not correct because instead of 3 years it should have been 6 years and 3 months.
10. It may be clarified here that the Control of Narcotic Substances Ordinance No,VI of 1995 was enforced on 22-2-1995 and in view of its section 65 it has to override other laws, meaning thereby, no punishment in case of narcotics could be awarded under the Prohibition (Enforcement of Hadd)
Order 4 of 1979 after enforcement of the Ordinance, so in the instant case the punishment could not be awarded under the Prohibition (Enforcement of Hadd) Order 4 of 1979 because the occurrence in this case had taken place on 30-3-1995 i,e, after Enforcement of the Ordinance as mentioned above, therefore, basically there is need to rectify the sentence in accordance with law and thereafter the lenient view may be taken. So, instead of the punishment for three years in default of payment of fine it is converted into six years and three months in default of payment of fine of Rs,10,00,000 (one million rupees).
11. Now it may be examined as to whether any lenient view may be taken or not. It is obvious that nowadays as per contentions of the counsel for the appellant, the appellant is undergoing the quantum of sentence for non-payment of the fine, therefore, the quantum of sentence as mentioned above may be converted into already undergone because he has suffered enough.
12. In view of the above discussion, the sentence of imprisonment for life under section 9(c) of the Control of Narcotic Substances Ordinance, 1995 passed by the learned Sessions Judge, Rawalpindi/ Special Court constituted under C.N.S.A., 1997 vide judgment dated 27-9-1997 is maintained and the punishment in lieu of fine as being six years and three months is converted into already undergone.
' Appeal is disposed of accordingly.