JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal.No.D-17 of 2021.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

 Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

10.11.2021

                        Mr. Abdul Baqi Jan Kakar, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

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IRSHAD ALI SHAH, J;- The appellant for being in possession/transporting 05 K.Gs of Opium through his Ford Wagon, has been convicted and sentenced under section 9(c) of the CNS Act, 1997, to undergo R.I for 07 years with fine of Rs.11,000/- and in case of his default in payment of fine, to undergo S.I for six months, by learned Sessions/Special  Judge (CNSA), Shikarpur, vide judgment dated 20.05.2021, which has been impugned by the appellant before this Court by preferring the instant appeal from jail.

2.        At the very outset, it is stated by learned counsel for the appellant that, under instructions, he would not press disposal of instant jail appeal on merits, if the conviction and sentence awarded to the appellant is reduced to one which he has already undergone.

3.        Learned Addl.P.G for the State has recorded no objection to said proposition by stating that the appellant as per Jail Roll has already undergone 02 years 10 months and 22 days of substantial sentence and besides this has also earned remission of 01 year 01 month and 13 days.

4.        We have considered the above arguments and have perused the record.

5.        It is the case of the prosecution that the appellant while driving his Ford Wagon, was found in possession/transporting 05 K.Gs of Opium,  such allegation the prosecution has been able to prove against him by examining complainant AETO Habibullah and PW/Mashir E.C Ghulam Akbar, their evidence takes support from the positive report of Chemical Examiner with regard to the substance so secured from the appellant and was taken to him by E.J Muhammad Hashim, they indeed were having no enmity with the appellant to have involved him in this case falsely by making foistation of narcotics substance upon him. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

6.        However, the conviction and sentence awarded to the appellant needs to be modified with lenient action for the reasons that it has come on record that the appellant is young man of 41 years of the age, having no criminal record and is said to be the sole bread earner of his entire family, thus is capable of reformation. By accepting his guilt obviously he has also shown his genuine remorse. By considering these factors as special mitigating circumstances, the conviction and sentence awarded to the appellant is modified with one which he has already undergone, which excludes imprisonment on account of his failure to make payment of fine.

7.        The instant Jail Appeal is disposed of accordingly. 

JUDGE

                                                                     JUDGE