IN THE HIGH COURT OF SINDH CIRCUIT COURT, LARKANA
Criminal Appeal No. D- 11 of 2021.
(Suo Motu) Cr. Revision No. D- 02 of 2022.
PRESENT:
Justice Khadim Hussain Tunio
Justice Shamsuddin Abbasi
Appellant : Altaf son of Mohammad Sarmastani Brohi, through Messrs Ashique Ali Jatoi and Naseer
Ahmed Wagan, Advocates.
Respondent : The State through Mr. Ali Anwar Kandhro, Addl. Prosecutor General Sindh.
Mr. Athar Abbas Solangi, Amicus Curiae.
Date of hearing : 08.08.2023
Date of judgment : 15.08.2023.
J U D G M E N T
Shamsuddin Abbasi, J:- Through captioned appeal, the appellant has challenged the vires of judgment dated 21.04.2021, passed by the learned Additional Sessions Judge-I, Shahdadkot in Special Case No.38 of 2020(hereunder referred to as ‘impugned judgment’), emanating from Crime No.67 of 2020, registered at Police Station A-Section Shahdadkot, whereby he has convicted the appellant for offence under Section 9(c) of Control of Narcotic Substances Act and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 100,000/- and in case of default in payment of fine to suffer simple imprisonment for six months more, with the benefit of Section 382-B,Cr.PC. Whereas, the suo-moto notice for enhancement of sentence was issued to the appellant through Criminal Revision Application No.02/20222.
2. The appellant stands charged under S. 9(c) of the Control of Narcotics Substances Act, 1997for the possession of charas. Allegedly, during snap checking conducted by complainant SIP Gulsher Ahmed Soomro and his subordinates, the appellant riding a motorcycle was found in suspicious condition near PP Sasoli of Police Station A-Section Shahdadkot and tried escaping, but was apprehended. A ‘Khurjeen” of red, black and blue colour being carried by him on his motorcycle was recovered by the police party wherein they recovered 15 patties of charas, which the appellant disclosed to be belonging to one Nazeer Sarmastani Brohi of Khuzdar, Balochistan and that he was transporting it to Kamber town for it’s delivery to Dhani Bux Brohi. The charas, on weighing, became 15 kilograms and was sealed on spot for chemical examination.
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 Gulsher Soomro(complainant) and PW-2 HC Muhammad Nawaz (mashir of recovery), who 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 while stating that he was falsely involved in the case at the behest of one Muhammad Hayat, who was inimical with his uncle Abdul Karim. The accused neither examined himself on oath as provided u/S. 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 Additional Prosecutor General Sindh did not oppose the said plea.
9. We have heard the learned counsel for the respective parties, learned amicus curiae 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 driving his motorbike, was found to be suspicious and produced 15 patties of charas from within a Khurjeen, therefore he was responsible for the said narcotics alleged to have been secured from the same. 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 ofZahid 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 08.08.2023, he has served out a sentence of 9 years, 05months and 28 days including remission. The appellant was awarded a sentence of ten years. The unexpired portion, therefore of the appellant’s sentence from the above date would be almost for 6 months and six month in case of default 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 ten years 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 the above modification in the sentence and since the sentence awarded to the appellant has been reduced to one already undergone by him, the captioned suo-moto revision is dismissed as well.
JUDGE
JUDGE