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.