THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 528 of 2017
Present: Mr. Justice Naimatullah Phulpoto
Justice Mrs. Kausar Sultana Hussain
Appellant
: The
State/ ANF through Assistant Director Law, through Mr. Habib Ahmed Special
Prosecutor
Respondents No.2&3
: Nemo
Date of Hearing : 15.08.2023
Date of
Judgment : 15.08.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Respondents
No.2 and 3 Muhammad Iftikhar and Intikhab Alam were tried by learned Special
Judge-I (CNS) Karachi for offence under Section 9(b) of CNS Act 1997 in Special
Case No.06 of 2011. Respondents pleaded guilty and they were convicted for
offence under Section 9(b) of CNS Act, 1997 and sentenced to the period, which they
had already undergone.
2. The State/ANF filed Revision for
enhancement of the sentence. During pendency of the Revision, it was converted
to Criminal Appeal in terms of the judgment passed by Supreme Court in the case
of Deputy Director Regional Directorate,
Anti-Narcotic Force, Lahore vs. Mst. Fazeelat Bibi (PLD 2013 SC 361).
3. Notice was issued to the respondents
No.2 and 3, it was served upon them and engaged a counsel but today neither they
nor their counsel are in attendance.
4. Mr. Habib Ahmed Special Prosecutor ANF
contended that it was case of recovery of 375 grams of heroin and sentence
awarded to the respondent No.2 and 3 was inadequate and against the sentencing
policy as laid down in the case of Ghulam
Murtaza and another vs. The State (PLD 2009 Lahore 362).
5. We have perused the order passed by
learned Special Judge-I dated 22.11.2011, which depicts the reasons for taking
lenient view. Impugned order reads as under:
“The accused named
above pleads guilty voluntarily to the satisfaction of the court. They are first
offenders admittedly. They pray for lenient view in the matter of punishment.
They are the only bread earner members of their family. They are young by age. They
remained UTP for the months together. The case of the accused persons falls
within the ambit of section 6/9(b) CNS Act, 1997. The learned DDPP concedes
lesser punishment in the circumstances. The accused therefore are hereby
convicted on the plea of guilty which is
accepted by this Court being unconditional and unqualified and purposeful in
law, under the aforesaid section of law and sentenced thereunder to suffer the
term of Rigorous Imprisonment for the period they have already undergone in the
interest of justice.”
6. It
appears that DDPP had conceded before the trial Court that circumstances of the
case warrant taking of lenient view. Learned trial Judge while awarding lesser
punishment has assigned the reasons that respondents
No.2 and 3 were the first offenders; only bread earners of their families; that
they were young in ages. It was further mentioned that they had remained in
jail since the date of their arrest. Lastly, it has been mentioned that
unconditional apology was tendered by the respondent No.2 and 3 and they regretted
the offence committed by them.
7. We have perused the judgment passed by
Supreme Court in the case of State
through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force
vs. Mujahid Naseem Lodhi (PLD 2017 S.C 671), in which it is held that in
appropriate cases, court may make departure from the sentencing guidelines as
provided in the case of Ghulam Murtaza (supra). In the present case, sufficient
reasons have been assigned by the trial Court for taking lenient view. Crime
also pertains to the year 2010. Moreover,
DDPP had conceded for taking lenient view.
8. For what has been discussed above, we
are of the view that no case for enhancement of the sentence is made out.
Appeal is without merits and the same is dismissed.
JUDGE
JUDGE