Muhammad Imran alias Bao Vs The State

8/HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.30624-J/2024

Muhammad Imran alias Bao

versus

The State

JUDGMENT

Date of hearing: 20.04.2026.

Barrister Haider A. Najafi, Advocate/Defence Appellant by:

Council at state expense.

State by: Mr.Waqas Anwar, Deputy Prosecutor General.

Farooq Haider, J. :- This appeal has been filed by Muhammad Imran alias Bao (appellant) through jail authorities against the judgment dated: 02.04.2024 passed by learned Additional Sessions Judge/Judge Special Court CNS, Faisalabad/trial court whereby in case arising out of F.I.R. No.2174/2023 dated: 27.10.2023 registered under Section: 9(1)3(c) of the Control of Narcotic Substances Act, 1997 at Police Station: Batala Colony, District: Faisalabad, trial court has convicted and sentenced the appellant as under:- under Section: 9(i)3(c) of the Control of Narcotic Substances Act, 1997 to Rigorous Imprisonment for four years and six months with fine of Rs.20,000/- and in default thereof to further undergo Simple Imprisonment for 05-months. Benefit of Section 382-B Cr.P.C. was also extended to the appellant.

2.Briefly, as per case of prosecution narrated in the written statement/ ( استغاثہExh.PB) sent by Tariq Hussain, A.S.I. (complainant/PW-2), appellant was apprehended as suspect by the complainant and other police officials and on his personal search, from black coloured shopper caught by him in his right hand charas was recovered from his possession; on weighing, same was found 1500-

grams; out of the recovered charas, with the ratio of 5%, 75-grams charas was separated as sample for chemical analysis; sample and remaining case property of charas were secured into separate sealed parcels with the stamp of “T.H.” and taken into possession vide recovery memo. Exh.PA; for ready reference, relevant portion of written statement/( ااغتسثہExh.PB) is hereby scanned below: - After investigation, challan report was sent to the court against the appellant and charge was framed against him, to which he pleaded not guilty and claimed trial; prosecution examined six witnesses and also produced report of Punjab Forensic Science Agency as Exh.PE; trial court recorded statement of the appellant under Section: 342 Cr.P.C. wherein he refuted allegations

leveled against him however neither opted to produce any evidence in his defence nor to give statement on oath under Section: 340(2) Cr.P.C. Trial court after hearing learned counsel for the parties, passed the impugned judgment wherein appellant was convicted and sentenced as mentioned above.

3.Learned Deputy Prosecutor General submits that though as per paragraph No.19 of the impugned judgment dated: 02.04.2024 passed by learned Additional Sessions Judge/Judge Special Court CNS, Faisalabad, appellant was held guilty for keeping in his possession charas weighing 1500-grams and he was convicted under Section: 9(1)3(c) of the Control of Narcotic Substances Act, 1997 yet as per paragraph No.20 while seeking guidance from Ghulam Murtaza’s case (PLD 2009 Lahore 362), he has been sentenced to undergo Rigorous Imprisonment for four years and six months with fine of Rs.20,000/-, in default of payment of fine to undergo Simple Imprisonment for 05-months and benefit of Section: 382-B Cr.P.C. has also been extended to him. Paragraph No.19 and 20 of the impugned judgment are hereby reproduced for ready reference:- “19. As prosecution has proved the charge against the accused beyond shadow of reasonable doubt, therefore, accused Imran alias Baoo is held guilty for keeping in his possession Charas weighing 1500-grams, resultantly, he is convicted under section 9(i)3(c) Control of Narcotics Substance Act, 1997.

20.Now coming to the quantum of sentence, seeking guidance from Ghulam Murtaza’s case (PLD 2009 Lahore 362), convict Muhammad Imran alias Baoo is sentenced to undergo Rigorous Imprisonment for four years and six months and fine Rs.20000/- and in default of payment of fine, Simple Imprisonment for 05- Months. Benefit of Section 382-B Cr.P.C. is extended to the convict.”

Learned Deputy Prosecutor General further submits that sentence which can be awarded to the convict under Section: 9(1)3(c) of the Control of Narcotic Substances Act, 1997 is imprisonment which may extend to fourteen years but shall not be less than nine years alongwith fine which may be upto four hundred thousand rupees but not less than eighty thousand rupees; so, minimum sentence which can be awarded under Section: 9(1)3(c) of the Act (ibid) is nine years and fine not less than eighty thousand rupees. Learned Deputy Prosecutor General further adds that trial court while awarding sentence to the appellant/convict (as detailed above) in this case has not considered minimum threshold of sentence of imprisonment as well as fine, therefore, sentence awarded to the appellant is against the law, hence impugned judgment is not sustainable. He

finally prays for setting aside impugned judgment and remanding the case to the trial court for re-writing the judgment.

4.Learned defence counsel for the appellant when confronted with the same, could not controvert aforementioned contention of learned Deputy Prosecutor General and very fairly submits that he has no objection on setting aside the impugned judgment and remanding the case to the trial court for re- writing the judgment.

5.After hearing learned counsel for the appellant, learned Deputy Prosecutor General and going through the record, it has been noticed that case was registered against the appellant on 27.10.2023 under Section: 9(1)3(c) of the Control of Narcotic Substances Act, 1997 at Police Station: Batala Colony, District: Faisalabad with the allegation of recovery of 1500-grams charas from him, charge was also framed against the appellant under Section: 9(i)3(c) of the Act (ibid) on 08.01.2024 and he was also convicted vide impugned judgment under Section: 9(i)3(c) of the Act (ibid), however, he was sentenced while seeking guidance from Ghulam Murtaza’s case (PLD 2009 Lahore 362), as detailed above. It is relevant to mention here that original Section: 9 (erstwhile) of the Act (ibid) was 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 one hundred grams or less;

(b)Imprisonment which may extend to seven years 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 may be upto one million rupees, if the quantity; of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b), Provided that if quantity exceeds ten kilogram the punishment shall not be less than imprisonment for life.”

Perusal of aforementioned erstwhile Section: 9 reveals that it was in composite form and providing punishment on the basis of quantity of the narcotic drug, psychotropic or controlled substance. Since it (Section: 9 erstwhile) was not providing separate punishment/sentence for each individual category of contraband, therefore, while feeling necessity for fixing threshold of

punishment for each category of contraband separately, Sentencing Policy was provided in Ghulam Murtaza’s case (supra).

It goes without saying that Legislature substituted erstwhile Section: 9 through the Control of Narcotic Substances (Amendment) Act, 2022 (Act No.XX of 2022), which received the assent of the President on the 2nd September, 2022, published in The Gazette of Pakistan (Extraordinary) on Tuesday, September 6, 2022 and as per sub-Section: (2) of its Section: 1, it came into force at once. Section: 9 of the Act ibid in its present form is as under:-

Present Section: 9 of the Act (ibid) reflects that according to the quantity as well as type of narcotic substance, maximum and minimum threshold of punishment/sentence has been provided in the same and it has been further noticed that as per Section: 9(1)3(c) of the Act (ibid), punishment has been provided for the quantity of charas weighing 1000-grams to 4999-grams as imprisonment which may extend to fourteen years but shall not be less than nine years alongwith fine which may be upto four hundred thousand rupees but not less than eighty thousand rupees and same is hereby separately again scanned below for ready reference:-

Hence, when the trial court held the appellant guilty for keeping in possession charas weighing 1500-grams and convicted him under Section: 9(1)3(c) of the Act (ibid) then punishment was to be awarded to the appellant as per present Section: 9 of the Act (ibid) which was in force on the day of occurrence/alleged recovery in this case i.e. 27.10.2023 and it was imprisonment which may extend to fourteen years but not less than nine years alongwith fine which may be upto four hundred thousand rupees but not less than eighty thousand rupees (as detailed above). It is important to mention here that when Section: 9 (erstwhile) of the Act (ibid) has been amended through the Control of Narcotic Substances (Amendment) Act, 2022 and now present Section: 9 has provided maximum as well as minimum quantum of punishment as per weight as well as type of narcotic substance then punishment is to be awarded while keeping in view the same i.e. punishment provided in present Section: 9 of the Act (ibid) and not in the light of Sentencing Policy provided in Ghulam Murtaza’s case (supra).

Since on the day of alleged recovery in this case i.e. 27.10.2023 minimum threshold of punishment provided under Section: 9(1)3(c) of the Act (ibid) regarding charas was nine years alongwith fine not less than eighty thousand rupees, therefore, punishment awarded to the appellant i.e. Rigorous Imprisonment for four years and six months alongwith fine of Rs.20000/- and in default of payment of fine Simple Imprisonment for five months, is against the law and said error has on the one hand caused failure of justice whereas on the other hand same is not curable.

6.Resultantly, without touching merits of the case, in view of what has been discussed above and with the concurrence of leaned counsel for the appellant, learned Deputy Prosecutor General as well as for the safe administration of justice, impugned judgment dated: 02.04.2024 passed by learned Additional Sessions Judge/Judge Special Court CNS, Faisalabad is hereby set aside, case is remanded to the trial court for re-writing of judgment within a period of one month after receipt of attested copy of this judgment after hearing all concerned and during said period appellant will be treated as undertrial prisoner. Appellant will be produced before the trial court on 29.04.2026 for further proceedings as mentioned above.

(ALI ZIA BAJWA) (FAROOQ HAIDER)

JUDGE JUDGE

Approved for reporting.

(ALI ZIA BAJWA) (FAROOQ HAIDER)

JUDGE JUDGE

This judgment has been dictated, pronounced, prepared and signed on 20.04.2026.

*Iftikhar Ahmad*