THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 92 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Muhammad Khan through Mr. Zahoor-uddin Mehsood advocate

Respondent : The State through Mr. Siraj Ali Khan Addl. P.G

Date of Hearing : 20.01.2023

Date of Judgment : 20.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Muhammad Khan appellant was tried by learned I-Additional Sessions Judge/MCTC, Malir Karachi in S.C.No. 2281/2021. On conclusion of the trial, vide judgment dated 24.01.2022, appellant was convicted under Section 9(c) of the CNS Act 1997 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.10,00,000/- (One Million). In case of default in payment of fine, the appellant was ordered to undergo simple imprisonment for 06 months more. Benefit of Section 382(b) Cr.P.C was also extended to the appellant.

2. Brief facts leading to the filing of the instant appeal as mentioned by the trial Court in the impugned judgment are that:

“The brief facts of prosecution case as appearing in FIR are that on 09—06-2021 at about 07:00 a.m. at Rehri Road under construction college Ali Akber Shah Goth Ibrahim Hyderi Malir Karachi a police party headed by SI/SHO Syed Muhammad Ali Shah of PS Ibrahim Hyderi apprehended the present accused along with other accused persons and from the present accused one shopper containing packets opium wrapped in white transparent tape total weighing 2000 grams in presence of mashirs, hence the instant FIR was registered.”

3. After usual investigation, challan was submitted against the appellant under section 9(c) of CNS Act 1997. Trial Court framed Charge against appellant at Ex.2 under the above referred section. Accused pleaded not guilty and claimed trial.

4. At trial, prosecution examined four witnesses. Thereafter, learned DDPP closed the prosecution side.

5. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.26. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations as well as examined D.W Nouman Khan in his defense, who produced CDR at Ex.28.

6. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 24.01.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against the conviction and sentences recorded against him.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 24.01.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Zahorrudin Mehsood, learned advocate for the appellant after arguing the appeal at length, did not press the appeal on merits but submits that lenient view in the sentence of the appellant may be taken on the ground that appellant is young aged about 25 years and he is sole supporter of his old parents. It is also submitted that appellant is not previously convict and he intends to reform his life.

9. Mr. Siraj Ali Khan Addl. P.G argued that prosecution has succeeded in proving it’s case against the appellant. However, recorded no objection, in case, sentence is reduced to some reasonable extent.

10. We have carefully heard learned counsel parties and perused the entire evidence available on record. From perusal of evidence it transpires that prosecution has successfully proved it’s case against the appellant by producing overwhelming incriminating evidence and report of the chemical examiner is also positive. Appellant was found carrying 2000 grams of opium in a shopper and report of chemical examiner is positive. Evidence of police officials on material particulars of the case is trustworthy and confidence inspiring. It is matter of record that these witnesses were subjected to the lengthy cross-examination but nothing favourable to accused except minor discrepancies could be sucked. In these circumstances, we have no hesitation to hold that Trial Court has rightly appreciated the evidence according to settled principle of law as such conviction and sentence recorded by the trial Court vide judgment dated 16.12.2022 requires no interference by this Court. Resultantly conviction is maintained.

11. As regards to the quantum of sentence is concerned, in the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 SC 671), in the matter of sentence, the Hon’ble Supreme Court has observed that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure." In the present case, learned Advocate for the appellant did not press appeal on merits. It is submitted that the appellant is young man aged about 25 years and he is the sole supporter of his old parents. It is also submitted that appellant is not previously convicted and he intends to mend his ways. As per jail roll dated 19.11.2022, the appellant has already served out sentence including remission 05 years, 08 months and 24 days, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellant is made out.

12. In the case of Gul Raeef Khan v. The State (2008 SCMR 865), the Hon’ble Supreme court has held as under:-

“It is true that prosecution has successfully established charge against the petitioner by producing overwhelming incriminating evidence, however, keeping in view the request made by the learned counsel for the petitioner and grounds put forward by him for reduction in the quantum of sentence, as well as considering the concession made by learned Assistant Advocate General conviction is maintained, but sentence under 9(c) of the Control of Narcotic Substances Act 1997 is reduced from 14 years’ R.I. to that of seven years’ R.I. with the benefit of section 382-B, Cr.P.C. which has already been extended to him by the learned High Court.” 

13. For the above stated reasons, appeal is dismissed on merits, however, sentence of the appellant is reduced from 10 years R.I to the period, which the appellant has already undergone and fine is also reduced from Rs.10,00,000/- to Rs.100,000/- (Rupees One Lac only) and in case of default in payment of fine, the appellant shall suffer S.I for 01 month more instead of S.I for 06 months. Benefit of Section 382(b) Cr.P.C is also extended to the appellant.

14. Subject to above modification in the sentence, the Appeal is disposed of in the above terms.

JUDGE

JUDGE