THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 566 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
Respondent No.2
: Nemo
Date of Hearing : 09.08.2023
Date of
Judgment : 09.08.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Respondent
No.2 Muhammad Hussain was tried by learned Special Judge-I (CNS) Karachi for
offence under Section 9(b) of CNS Act 1997 in Special Case No. 82/2011.
Respondent No.2 pleaded guilty and he was convicted for offence under Section
9(b) of CNS Act, 1997 and sentenced to the period, which he 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 respondent
No.2, it was served upon him and he engaged a counsel but today neither he nor
his counsel are in attendance.
4. Mr. Habib Ahmed Special Prosecutor ANF
contended that it was case of recovery of 790 grams of heroin and sentence
awarded to the respondent No.2 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 30.01.2012, 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. He is first
offender admittedly. He prays for lenient view in the matter of punishment he
is the only bread earner member of the family. He is young by age. He remained
UTP for the months together. The case of the accused falls within the ambit of
section 6/9(b) CNS Act, 1997. The learned SPP concedes lesser punishment in the
circumstances. The accused therefore is 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 with benefit of section 382-B Cr.P.C for the period he
has already undergone in the interest of justice.”
6. It
appears that SPP 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 respondent
No.2 was the first offender; that only bread earner of his family; that he was
young in age. It was further mentioned that he has remained in jail since the
date of his arrest. Lastly, it has been mentioned that unconditional apology was
tendered by the respondent No.2 and he has regretted the offence committed by
him.
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. Moreover, SPP 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