IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, LARKANA

 

Crl. Appeal No. D- 23 of 2024.

 

Present:

Shamsuddin Abbasi-J.

                                                            Agha Faisal-J.

           

Appellant                    :  Ghulam Nabi Jatoi, through Mr. Shahbaz Ali M. Brohi,

                                       Advocate.                                                               

 

Respondent                :  The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor

                                       General.                                                      

 

Date of hearing          :  22.05.2024.

Date of judgment      :  22.05.2024.

 

 

Judgment

 

Shamsuddin Abbasi, J.-  Through this criminal appeal, appellant Ghulam Nabi son of Rehmatullah Jatoi has assailed the judgment dated 22.03.2024, passed by learned 1st Additional Sessions Judge/ MCTC/ Special Judge for CNSA, Shikarpur, in Special case No. 619 of 2021, re; State v. Ghulam Nabi Jatoi, arisen out of F.I.R No. 65 of 2021 of P.S Madeji, District Shikarpur, whereby the appellant was convicted for offence under Section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced with imprisonment for the period he already remained inside prison (sentence treated as undergone) and to pay fine of Rs.10,00,000/- (Rupees One Million) and in default to pay the fine, to suffer S.I for 10 years.

 

            2.         At the very outset learned counsel submitted that learned trial Judge while passing the impugned judgment has observed that lenient view has been taken by him, but in-fact no leniency appears to have been extended to appellant in true senses, as the learned trial Judge while passing impugned judgment has imposed huge amount of Rs.One million upon him and in case of default the appellant has been ordered to undergo S.I for ten years, which appears to be very harsh one. Per learned counsel the appellant being poor fellow is not in a position to arrange such a huge amount and despite his best efforts he could not arrange the required fine amount and he has been in the jail for want of payment of fine amount.  Per learned counsel, the appellant is sole breadwinner of his entire family, who are on starvation due to his confinement.

 

            3.         So for as, merits of the case are concerned, learned counsel contended that, the appellant had moved an application before learned trial Court for taking leniency by considering his detention period as imprisonment (as already undergone), but the learned trial Judge convicted and sentenced him by imposing huge fine amount and in failure to its payment directed to under S.I for ten years, which per learned counsel is very harsh and against natural justice. Learned counsel further added that trial Judge has himself observed vide point No.1 [para-6] that per evidence and material brought on record case against accused is doubtful, because alleged recovery was effected on 07.10.2022 and it was sent to Laboratory on 12.10.2022 after inordinate delay of five days and that the prosecution has failed to prove safe custody and dispatch of case property which is also a crucial legal requirement and sole failure thereof is sufficient to acquit an accused. Per learned counsel inspite of these observations the learned trial Jduge has passed conviction against appellant. However, at the same time learned counsel submitted that he would not press instant appeal on merits, if the sentence of fine is reduced. Lastly, he prayed for taking leniency and modification in his sentence of fine.

 

            4.         In view of submissions made by learned for appellant, the learned D.P.G concedes to the modification in sentence of fine.  

 

            5.         It is matter of record that, the appellant has been imprisoned for a period, which he has already remained in jail, but at the same time he has been imposed a fine of Rs. One million and in case of default in payment of fine, he has been directed to be in jail for ten years. However, per observations of learned trial Judge, a lenient view has been taken by him, but in-fact it seems that the trial Judge has taken no leniency in true senses.

 

            6.         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.”

 

 

            7.          Accordingly, view of submissions made by learned counsel for appellant and no objection extended by learned D.P.G., and by taking lenient view the conviction and sentence to the extent of fine of Rs. One Million and in default whereof simple imprisonment for ten years inflicted upon appellant by trial Court vide impugned judgment dated 22.03.2024, is hereby reduced to Rs.50,000/- (Fifty thousand rupees) and in default in payment of such fine, the appellant to undergo S.I for one month.

 

            8.          With this modification in the conviction and sentence of appellant, the appeal in hands stands disposed of.

 

 

 

                                                                                                          Judge

                                                          Judge

 

Ansari