Judgment Sheet.
HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.
Present:
1. Mr. Justice Sajjad Ali Shah,
2. Mr. Justice Aqeel Ahmed Abbasi,
Cr. Appeal No.D-36 of 2008.
Muhammad Hassan. . . . . . .Appellant.
Versus.
The State. . . . . . . .Respondent.
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Cr. Jail Appeal No.D-46 of 2008.
Jamaluddin Achakzai. . . . .Appellant.
Versus.
The State. . . . . . . .Respondent.
Date of hearing: 02.06.2010.
Date of Judgment: 02.06.2010.
Appellants: Through M/s. Abdul Sattar Kazi & Noorul Haq Qureshi, Advocates.
Respondent: The State through Mr. M. Iqbal Kalhoro, APG.
J U D G M E N T.
SAJJAD ALI SHAH, J-. The appellants Muhammad Hassan and Jamaluddin upon being found guilty of an offence under section 9(C) of Control of Narcotic Substances Act, 1997, were convicted and sentenced to suffer imprisonment for life with fine of Rs.200000/- each and on account of non-payment of fine further imprisonment for 06 months.
Learned counsel for the appellants at the very outset have contended that the appellants would not press the instant appeal if while maintaining the conviction the sentence is reduced to one already undergone. Per learned counsel out of life imprisonment the appellants have already undergone 11 years 07 months and 06 days including remissions. They further state that the appellants have learnt lesson and have repented and undertake not to repeat such offence. They being the sole bread earner of their respective family deserve a lenient treatment.
In facts and circumstances, learned A.P.G. states that in case the conviction is maintained he would have no objection for reduction of the sentence.
We have heard the learned counsel and have perused the record. It appears that on recovery of 80 kilograms of Charas in the shape of 80 slabs one kilogram each the trial Court has convicted the appellants under section 9(C) of Control of Narcotic Substances Act, 1997 and sentenced them to undergo imprisonment for life with fine of Rs.200,000/- each. The jail-roll which has been placed on record, reflects that the appellant have already undergone 11 years 07 months and 06 days and since the appellant being a youngman has repented, therefore, deserves lenient treatment. The important point which persuaded us to accept the request of the appellants is that 80 kilograms of charas in accordance with the evidence of P.W-1 and as detailed in the judgment was in four Cartons having 20 bundles of charas in each carton when the whole Charas was weighed it was found 80 kilograms and sample of only 40 grams was taken from some pieces of charas for Chemical Examination. The précised words of the witness are reproduced as follows:
“Then we weighed whole the charas and found 80 kilograms. Then we separated some pieces of Charas for Chemical Analyser near about 40 grams.”
It means that the status of the remaining substance remained undetermined. In similar circumstances the apex Court in the case of MUHAMMAD HASHIM v. THE STATE (P L D 2004 S.C. 856), where 4 kilograms of Charas in 288 rods was recovered and sample of only 4 gram was drawn from any of the rods, had set aside the conviction. In the instance case since the appellants are not pressing the appeal, therefore, we while dismissing the appeal and maintaining the conviction reduce the sentence to one already undergone and remit the fine. The appellants shall be released forthwith if not required in any other custody case.
JUDGE
JUDGE
S