IN THE HIGH COURT OF SINDH CIRCUIT COURT

LARKANA

Criminal Appeal No. D- 19 of 2023.

PRESENT:

Justice Khadim Hussain Tunio.

Justice Shamsuddin Abbasi.

Appellant: Hazoor Bux Shaikh, through Mr. Imtiaz Ali Mugheri, Advocate.

Respondent: The State, through Aitbar Ali Bullo, D.P.G.

Dates of hearing: 06.09.2023.

Date of the judgment: 13.09.2023.

JUDGMENT

Shamsuddin Abbasi, J:- Through captioned appeal, appellant Hazoor Bux son of Khaqo alias Abdul Khalique alias Khaliq Dino Shaikh has challenged the vires of judgment dated 11.02.2023, passed by the learned Sessions Judge/ Special Judge for (CNS), Kashmore @ Kandhkot, in Special Narcotics Case No.20/2022 (hereunder referred to as ‘impugned judgment’), emanating from Crime No.21/2022, registered at Police Station Ghouspur, whereby he has convicted the appellant for offence under Section 9 (c) of Control of Narcotic Substances Act, 1997, and sentenced to suffer rigorous imprisonment for four years and six months and to pay fine of Rs.20,000/- and in default whereof to undergo S.I for period of five months more, with the benefit of Section 382-B,Cr.PC.

2. The appellant stands charged under S. 9 (c) of the Control of Narcotics Substances Act, 1997, for the possession of charas. Allegedly, during patrolling the police party headed by SIP Mumtaz Ali Soomro of P.S Ghouspur received information through spy about presence of a person having charas and as such they reached the pointed place, where they spotted a person on road; apprehended him with black colour plastic bag containing three pieces of charas. The captive disclosed himself to be Hazoor Bux Shaikh (present appellant). On his personal search five currency notes of rupees one hundred were also secured. The charas on weighing become 2010 grams; it was sealed on the spot and accused was arrested under mashirnama. Ultimately, the police party brought the accused along with case property at Police station, where complainant lodged FIR on behalf of the State.

3. After conducting investigation, the investigation officer submitted challan before the learned trial Court, whereafter it framed a charge against the accused, to which he pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove the charge against the accused examined PW-1 SIP Mumtaz Ali (complainant) and PW-2 P.C Mumtaz Ali (mashir/ witness of recovery). PW-3 SIP Umed Ali Leghari (Investigation Officer) at Ex.5 and PW-4 P.C Ali Raza at Ex.6. They produced various documents in their evidence. Thereafter, prosecution side was closed.

5. Statement of accused under S. 342 Cr.PC was recorded, in which he denied all the allegations levelled against him by the prosecution and pleaded his innocence. The accused neither examined himself on oath as provided under section 340 (2) Cr.P.C., nor examined any witnesses in his defence.

6. After hearing the learned counsel for the respective parties, learned trial Court convicted the appellant as stated above, hence this appeal.

7. Learned counsel for the appellant, after arguing the case to an extent, stated that he would be satisfied and will not argue the case on merits if the sentence awarded to the appellant is converted to one already undergone by him in the light of the fact that following the incarceration of the appellant, his family is starving and has no one to seek help from; that the appellant’s conduct is satisfactory in prison and he has placed himself at the mercy of this Court.

8. Learned Deputy Prosecutor General Sindh did not oppose said plea.

9. We have heard the learned counsel for the respective parties and perused the record available before us.

10. After a careful perusal of the evidence of witnesses, we have found that they have constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband. They are in comfortable unison on all the salient features regarding interception of the huge quantity of charas as well as all the steps taken subsequently. The whole case property was sealed and sent to the chemical examiner, which is found by us being exercise more than sufficient to constitute forensic proof. At the time of his arrest, the appellant was found in possession of 2010 grams of charas in shape of three pieces in the shopper, therefore, he was responsible for the said narcotics. We have also examined the report of Chemical Examiner available on the record and have also found that it fully corroborates the evidence of both the witnesses, whose stand is in nexus with the chemical examiner’s report. Reliance in this respect can be placed on the case of Zahid and another v. The State (2020 SCMR 590).

11. Now coming to the plea raised by the counsel for appellant regarding reduction of sentence of the appellant. It is a matter of record that the appellant is a first offender and does not have previous criminal record. He is the sole bread earner of a huge family and his family is reportedly on the brink of starvation. His conduct in jail has also been satisfactory as per jail authorities. We are of the considered view that the lesser punishment to the appellant is sufficient for a first-offender. Moreover, the appellant appears to be remorseful of his past and has shown willingness for improvement. It is a well-established principle of law that in special circumstances, the Court at its discretion can divert from the norms and standards prescribed in terms of sentencing after assigning cogent reasons. In this respect, reliance is placed on the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi (PLD 2017 SC 671) wherein it has been held that:-

“The exercise of jurisdiction and discretion in the matter of the respondent's sentence by the trial court and the High Court have not been found by us to be open to any legitimate exception, particularly when the reasons recorded for passing a reduced sentence against the respondent and for making a departure from the above mentioned sentencing guidelines have been found by us to be proper in the peculiar circumstances of this case.”

12. The Hon’ble Apex Court has also been pleased to reduce sentence in cases of similar nature reported as Sherzada v. The State (1993 SCMR 149) and Gul Badshah v. The State (2011 SCMR 984).

13. As per the jail roll of the appellant dated 02.09.2023, he has served out a sentence of 03 years, 10 months and 26 days including remission. The appellant was awarded a sentence of four years and six months. The unexpired portion, therefore of the appellant’s sentence from the above date would be almost for one year and eight months including sentence in lieu of fine amount. The backdrop of the above discussion is that, since the prosecution has proven its case against the appellant, therefore, this criminal jail appeal is dismissed on merits; however this Court is at the liberty to use its discretion while determining the quantum of sentence. While exercising that discretion, sentences of the appellant are reduced from four years and six months to one already undergone by him. The fine amount however is maintained, in default of which he shall suffer simple imprisonment, as ordered by the trial Court in the impugned judgment.

14. The appeal stands dismissed with above modification in the sentence.

Judge

Ansari