Narcotics and Sentence

By: Urainab

The Control of Narcotics Substances Act, 1997 (hereinafter the Act), is a special law. The object of the Act, inter alia, is to control the production, processing and trafficking of narcotics, etc. In order to find sentencing trends of different courts on narcotic substances, the Lahore High Court (LHC) carried out a survey. The information gained through the survey showed a drastic fluctuation and variable approaches of the courts toward awarding sentences to convicts. It paved the way for formulating a uniform policy and standardization in the matter of sentencing in the arena of recovery of narcotic substances.

The LHC observed that both the trial and appellate judges were passing different sentences on convicts in similar situations. It is gross injustice and is giving rise to confusion and uncertainty. The disparity has also encouraged unscrupulous litigants and lawyers to do blackmailing, mint money and make a mockery of the law. It is self-evident that sentences imposed by the Act are prescribed with reference to quality of recovered narcotic substances, and not with reference to the kind or nature of the recovered narcotics.

The maximum sentences provided in the Control of Narcotics Substances Act, 1997, for different quantities of the recovered narcotics (contraband narcotic substances) are as follows:

Section 9(a): if the recovered quantity is 100 grams or less, imprisonment up to 2 years or fine or both.

Section 9(b): If the recovered quantity exceeds 100 grams but does not exceed 1 kilogram, imprisonment up to seven (7) years and fine.

Section 9(c): if the recovered quantity exceeds 1 kilogram, death or imprisonment for life or imprisonment up to 14 years and fine up to one million rupees, however, if the recovered quantity exceeds 10 kilograms, then the sentence is not to be less than for life.

Since courts in Punjab have different approaches in awarding sentence to convicts in contraband narcotic substances cases, therefore, through Ghulam Murtaza Case (PLD 2009 Lahore 362), a full bench of the Supreme Court of Pakistan, headed by his lordship Mr Justice Asif Saeed Khan Khosa, has provided and prescribed the normal and standard sentences for different quantities of various contraband narcotic substances recovered in connection with the Act. A chart showing sentence under section 9(a), 9(b) and 9(c) of the Act has been given for smooth functioning of the courts on equal footing all over Punjab. The full bench has laid down principle in a case (supra) and in this way, gaps have been bridged up towards inconsistent approach of different courts on sentencing. The landmark judgement provides sentencing policy to be followed by courts in Punjab.

The principles contained in the Ghulam Murtaza Case were challenged before the Supreme Court i.e. the apex court of Pakistan, in criminal appeal number 308-L of 2009, on 31 August 2009. The Court suspended the operation of the principle laid down through the said judgement. In case of Khuda Bakhsh (2015 SCMR 735), the august Supreme Court laid down that award of punishment was the discretion of the court and it might award any sentence it deemed fit given the facts and circumstances of the case. Due to suspension of these principles and above observations by the apex court, the courts in Punjab are mystified and diffident to follow the principles provided in the Ghulam Murtaza Case.

But, in Ameer Zeb Case (PLD 2012 Supreme Court 380), the Supreme Court has followed the Ghulam Murtaza Case. Thereafter, on 25.11.2014, the Supreme Court in criminal appeals 218-L and 287-L of 2009, referred the matter to seven-member bench to decide the question of principles contained in the Ghulam Murtaza Case, because it was followed, after suspension, by five-member bench of the apex court.

Subsequently, Ghulam Murtaza Case has been discussed in case of Socha Gul (2015 SCMR 1077) by the apex court, whereas principles of Ghulam Murtaza Case have not been set aside. The august Supreme Court of Pakistan in cases of Ameer Zeb (PLD 2012 SC 380), Gul Badshah (2011 SCMR 984), Abdul Hameed (2016 SCMR 707), Para Din (2016 SCMR 806) and Abdul Sattar (2016 SCMR 909) followed the sentencing guidelines contained in the case of Ghulam Murtaza Case.

Variable sentencing approaches on the basis of same quantity of recovered substance may lead to outrageous injustice. It goes without saying that justice should not be administrated according to whims or caprice, but it should be dispensed according to some codified and stipulated standard so as to bring forth consistency and reasonable predictability. Predictability of judicial response to an action (or inaction) of a person is very important because the community looks to the judiciary for redressal of grievances and violation of law so that the wrongdoer is handed down punishment in accordance with the law. Hence uniformity and standardization of judicial response to similar legal situations is essential in view of the principle of justice, equity and good conscious. Right course for the courts in the country is to follow the sentencing guidelines contained in Ghulam Murtaza Case for the reason that apex court of the country is following the same its latest decisions cases.