Present:
Mr. Justice Aqeel Ahmed Abbasi &
Mr. Justice Muhammad Faisal Kamal Alam.
Cr.Appeal No.D-15 of 2014
For Regular Hearing
19.05.2016
Mr. Abdul Baqi Jan Kakar advocate for appellant.
Mr.Zulfiqar Ali Jatoi, Deputy Prosecutor General for the
State.
J
U D G M E N T
Through instant Criminal Appeal, the
appellant Allahdad s/o Dodo Khan has assailed the judgment dated 25.01.2014
passed by learned Sessions Judge/Special Judge (CNS), Khairpur, whereby, the
appellant has been convicted under Section 9 (c) of CNS Act, 1997 and sentenced
to suffer R.I for 14 years and to pay fine of Rs.100,000/- (one lac), whereas,
in case of default thereof the appellant is required to suffer S.I for 12
months more. The appellant has been extended benefit of section 382-B, Cr.P.C.
2. Learned
counsel for the appellant under instruction, submits that the appellant will
not press instant appeal on merits if the sentence is reduced in terms of
sentencing policy as declared in the case of Ghulam Murtaza v. State (PLD 2009
Lahore 362), which according to learned counsel, has also ben approved by the
Hon'ble Supreme Court in the case of Ameer Zaib v. The State (PLD 2012 SC 380).
Learned counsel for the appellant submits that though there are several legal
infirmities and lecunas in the impugned judgment, however, the appellant, who
is a first offender, having no criminal background, has already served out his
substantial sentence i.e. about 08 years including remission from the date of
his arrest on 15.01.2011, therefore, he will be satisfied if the instant appeal
may be disposed of in the above terms.
3. Learned
DPG while confronted with such request of the learned counsel for the appellant
for disposal of instant appeal in the above terms, could not deny the
application of the sentencing policy to the facts of the instant case. However,
submits that this Court is at liberty to take a different view without
following the sentencing policy by awarding appropriate punishment and
sentencing the appellant, keeping in view the facts and circumstances of this
case on its own merits. According to learned DPG, the Hon'ble Supreme Court in
the recent judgment in the case of Khuda Bakhsh v. The State (2015 SCMR 735)
has awarded 08 years punishment to the appellant, who was found in possession
of 02 kilograms of charas.
4. In
response to above submissions of learned DPG, the learned counsel for the
appellant submits that in the cited judgment, the Hon'ble Supreme Court has not
recorded any adverse finding with regard to sentencing policy as declared in
the case of Ghulam Murtaza (supra) duly approved in the case of Ameer Zaib
(supra), on the contrary, has been pleased to reduce the sentence awarded to the
appellant in the aforesaid case from life imprisonment to eight years. It has
been further contended by learned counsel that in number of cases, this Court
as well as the Hon'ble Supreme Court, while applying the sentencing policy,
have disposed of the appeals by reducing the sentence while maintaining the
conviction. In support of his contention learned counsel for the appellant has
placed reliance on the case of Abdul Hameed v. The Sate (2016 SCMR 707) and Para
Din and others v. The State (2016 SCMR 806).
5. We have heard learned counsel for the
appellant, learned DPG, perused the record and have also gone through the
impugned judgment passed in the instant case. Admittedly, the appellant is
first offender, who has been awarded punishment for a period of 14 years and to
pay fine of Rs.100,000/- (one lac), whereas, he has already remained in jail
for a period of about eight years including remissions. Learned DPG has not
been able to point out any distinguishing features, which may require this Court
to take a different view, which has already been taken by full bench of Lahore
High Court, and the Hon'ble Supreme Court in the case of Ghulam Murtaza and Ameer
Zaib (supra) regarding sentencing policy. The reliance placed by the learned
counsel for the appellant on two recent judgments of the Hon'ble Supreme Court
on the subject-controversy also appears to be relevant, whereas, learned DPG
has not been able to point out any distinguishable facts of the case, which may
require this Court to take a different view already taken by the Hon'ble
Supreme Court in the above referred judgments.
6. Accordingly,
while maintaining the conviction awarded to the appellant Allahdad s/o Dodo
Khan by the learned trial Court through impugned judgment dated 25.01.2014, we
reduce the sentence as per sentencing policy i.e. Heroin exceeding 5 kilograms
and up to 6 kilograms, imprisonment: R.I for 10 years and fine Rs.1,10,000/- or
in default S.I for 10 months more, resultantly, the appellant after completion
of above period of sentence shall be released from Central Prison, Sukkur,
immediately, if not required in any criminal case.
Accordingly, instant appeal stands
dismissed, however, the sentences modified and reduced as per sentencing
policy.
JUDGE
JUDGE
N.M.