ORDER SHEET

IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.

Cr. Appeal No.S-309 of 2010.

DATE             ORDER WITH SIGNATURE OF JUDGE

For regular hearing.

05.01.2018.

Mr. Hameedullah Dahri, Advocate alongwith appellant.

Mr. Shahid Ahmed Shaikh, D.P.G for the State.

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At the outset, learned counsel for appellant contends that appellant is first offender; he is the only male member of his family to earn their livelihood. Circumstances of the case warrants reduction of sentence. Learned trial judge failed to consider the mitigating and excavating circumstances which otherwise were sufficient to affect the quantum of sentenced even; offence provides minimum punishment of 14 years and appellant has remained in custody for about five years as well as he was granted bail in view of no objection extended by complainant and PWs, which is sufficient ground to reduce the sentence.

Learned D.P.G has not raised any objection with regard to such prayer.

Needless to mention here that concept of punishment can be reformative hence learned trial Courts are bound to award sentence (s) after considering all aspects, nature of crime, conduct as well as previous criminal history of an accused. There are certain offences, the punishment whereof is with phrase “not less than” while there are other which are with phrase “may extend upto”. Thus, it is quite obvious and clear that the law itself has categorized the offences in two categories regarding quantum of punishment. For one category the Court (s) are empowered to award any sentence while in other category the discretion has been limited by use of the phrase ‘not less than’. Such difference itself is indicative that the Courts have to appreciate certain circumstances before setting quantum of punishment in first category which appear to be dealing with those offences, the guilty whereof may be given an opportunity of “reformation” by awarding less punishment which how low-so-ever, may be, will be legal. The concept of reformation should be given much weight because conviction normally does not punish the guilty only but whole of his family/dependents too. In short, learned trial Courts are bound to determine the quantum of sentences after considering all aspects, nature of crime, conduct as well as previous criminal history of an accused because wherever the law gives discretion, it impliedly demands that out of two available legal things the better will be chosen. The option of choosing one out of two legal things would always require

a justification for choosing one by leaving the other therefore, the Court (s) must deliberate this aspect while determining the quantum of sentence in respect of cases, falling within such category. Thus, it was obligatory upon the trial court to have considered all the circumstances while determining the quantum of sentence. The sentence , provided for the offence, is ‘upto 14 years’.

Prima facie, the learned trial Court judge while determining quantum of punishment has not given any reasoning for choosing such amount of sentence nor there have been given any exceptional circumstances which could justify such quantum of punishment for an offence for which the provision itself vests discretion by not limiting the quantum of sentence with phrase ‘not less than’ but with phrase ‘may extent upto’. Therefore, I find the substance in plea of the appellant whose claim (s) of being only male member and first offender are not disputed.

Since the appellant has remained in custody for about five years and bail was granted after no objection extended by the complainant and PWs, therefore, the impugned judgment is modified and sentence is altered to one already undergone by him. The appellant is present on bail, his bail bond is cancelled and surety discharged. The appeal is accordingly disposed of in above terms.

JUDGE.

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