THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 773 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Rasheed Ahmed through Mr. Saifullah advocate

Respondent : The State through Mr. Siraj Ali Khan Addl. P.G

Date of Hearing : 19.01.2023

Date of Judgment : 19.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Rasheed Ahmed appellant was tried by learned V-Additional Sessions Judge/MCTC, Karachi East in Special Narcotics Case No. 2019/2022. On conclusion of the trial, vide judgment dated 16.12.2022, appellant was convicted under Section 9(c) of the CNS Act 1997 and sentenced to undergo rigorous imprisonment for 04 years and to pay fine of Rs.20,000/-. In case of default, the appellant was ordered to undergo simple imprisonment for 04 months more. Benefit of Section 382(b) Cr.P.C was also extended to the appellant.

2. Brief facts leading to the filing of the instant appeal as mentioned by the trial Court in the impugned judgment are that:

“Brief facts of the prosecution case are that the complainant SIP Illahi Bux of PS Shahrah-e-Faisal lodged the instant FIR against the above named accused stating therein that on 29.03.2022, he along with his subordinate staff i.e. PC Ghulam Abbas, PC Ghulam Sarwar and D/PC Razzaq in official mobile-I, left PS for patrolling vide entry No.2 and during the course of patrolling when they reached at near Natha Khan Bridge saw one yellow & black color taxi bearing registration No. JL-5380 and they had stopped the said taxi and on inquiry the taxi driver disclosed his name as Rasheed Ahmed S/o Tota Khan. Due to non-availability of private persons the complainant had conducted the search of accused in presence of official mashirs and recovered one black color wallet containing copy of CNIC and cash of Rs.8000/- as well as one keypad Q-mobile phone from his possession and on checking of trunk/diggi of said taxi one green color box/ carton was recovered, which carton was opened and found one white color shopper containing five packets of charas wrapped in yellow tape which packets of chars were weighed separately wherein three packets becomes 1150 grams each, fourth packet becomes 1230 grams and fifth packet becomes 1100 grams and all five packets cumulatively becomes 5780 grams in weight and same chars recovered from the possession of accused was sealed at the spot for chemical analysis and simultaneously the taxi bearing No.JL-5380 of accused was taken into police custody under Section 550 Cr.P.C. Thereafter complainant had arrested the accused for offence of 9-C CNS Act and had prepared such mashirnama in presence of official mashirs and then had brought the accused with case property at PS where complainant had lodged the instant FIR against the above named accused.”

3. After usual investigation, challan was submitted against the appellant under section 9(c) of CNS Act 1997. Trial Court framed Charge against appellant at Ex.2 under the above referred section. Accused pleaded not guilty and claimed trial.

4. At trial, prosecution examined four witnesses. Thereafter, learned DDPP closed the prosecution side.

5. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.9. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defense.

6. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 16.12.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against the conviction and sentences recorded against him.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 16.12.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Saifullah, learned advocate for the appellant after arguing the appeal at length, did not press the appeal on merits but submits that lenient view in the sentence of the appellant may be taken. He further submitted that appellant is the only supporter of his 10 children, he is a heart patient and is aged about 60 years.

9. Mr. Siraj Ali Khan Addl. P.G argued that prosecution has succeeded in proving it’s case against the appellant. However, recorded no objection, in case, sentence is reduced to some reasonable extent.

10. We have carefully heard learned counsel parties and perused the entire evidence available on record. From perusal of evidence it transpires that prosecution has successfully proved it’s case against the appellant beyond any shadow of reasonable doubt. Appellant was found carrying 5780 grams of charas in a vehicle and report of chemical examiner is positive. Evidence of police officials on material particulars of the case is trustworthy and confidence inspiring. It is matter of record that these witnesses were subjected to the lengthy cross-examination but nothing favourable to accused except minor discrepancies could be sucked. In these circumstances, we have no hesitation to hold that Trial Court has rightly appreciated the evidence according to settled principle of law as such conviction and sentence recorded by the trial Court vide judgment dated 16.12.2022 requires no interference by this Court. Resultantly conviction is maintained.

11. As regards to the quantum of sentence is concerned, in the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 SC 671), in the matter of sentence, the Hon’ble Supreme Court has observed that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure." In the present case, learned Advocate for the appellant did not press appeal on merits. It is submitted by him that appellant is father of 10 children; he is aged about 60 years besides he is a chronic heart patient. The appellant is also not previously involved in such like cases. As per jail roll dated 11.01.2023, the appellant has already served out sentence including remission 02 years, 01 month and 12 days, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellant is made out.

12. For the above stated reasons, appeal is dismissed on merits, however, sentence of the appellant is reduced from 04 years R.I to 2½ years R.I and fine is also reduced from Rs.20,000/- to Rs.5000/- and in case of default in payment of fine, the appellant shall suffer S.I for 15 days more instead of S.I for 04 months. Benefit of Section 382(b) Cr.P.C is also extended to the appellant.

13. Subject to above modification in the sentence, the Appeal is disposed of in the above terms.

JUDGE

JUDGE