IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Special Criminal Appeal No.D-29 of 2021

Present :

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Khadim Hussain Tunio,

Appellant : Abdul Majid son of Muhammad Bux

Through Mr. Bashir Ahmed Shar, Advocate.

Respondent : The State through Mr. Shafi Muhammad

Mahar,Deputy Prosecutor General.

Date of hearing : 07.12.2021

Date of decision : 07.12.2021

J U D G M E N T

Appellant has impugned the judgment dated; 23.02.2021, passed by learned Additional Sessions Judge (Special Jurisdiction CNS Act, 1997), Mirwah in Sessions Case No.201 of 2020 Re- the State Vs. Abdul Majid, arising out of CrimeNo.180 of 2020, registered at PS Mirwah for the offence punishable under Section 9-C CNS Act,whereby the appellant was convicted under Section 265-H(ii) CrPC for an offence punishable under Section 9(C) CNS Act, 1997 and to suffer R.I for four years and four months and to pay fine of Rs.20,000/- and in case of non-payment of fine, to further undergo S.I for three months. However, the benefit of Section 382-B CrPC was extended to appellant.

2. Precisely, the allegations against the appellant/accused are that on 07.10.2020 at 1500 hours at link road leading from Nandhi Thari to Malik Chowdagi Taluka Mirwah, he was apprehended by Police party headed by SIP Ghulam Ali Shar of PS Mirwah who secured nine small and big pieces of Charas weighing 1100 grams in total (contraband material) from the possession of appellant/accusedalongwith cash of Rs.100/- and prepared memo in presence of mashirs namely PC Ali Akbar and PC Barkat Ali, thereafter, FIR was registered on behalf of State against the appellant/accused.

3. At trial, in order to prove its case against the appellant, prosecution examined in all 03 (three) witnesses namely PW-1 complainant SIP Ghulam Ali Shar, PW- mashir PC Ali Akbar and PW-3 I.O / Inspector Darya Khan, who have produced number of documents through their evidence. Thereafter, prosecution side was closed.

4. Statement of appellant was recorded under Section 342 Cr.P.C. in which he pleaded his innocence and false implication in the case by the complainant due to enmity. The accused neither examined himself on oath, nor led any evidence in his defence.

5. Learned trial Court after hearing the learned counsel for the parties and after evaluating the evidence, convicted and sentenced the appellant as mentioned in the preceding para.

6. Learned counsel for appellant after reading over the evidence of prosecution witnesses and arguing the case at some length, submitted that the appellant shall not press the appeal on merits in the wake of evidence brought on record regarding his involvement, if the sentence awarded to him by the learned trial Court is reduced to one already undergone. He further submits that the appellant as per Jail Roll dated; 27.11.2021 has served out more than one year and has earned 11 months and 19 days as remissions, therefore, appellant would be satisfied and will not press the appeal, if convictions and sentence awarded to him is modified into already undergone.

7. Conversely, learned Deputy Prosecutor General for the State supported the impugned judgment. However, he did not controvert the proposal brought forth the learned counsel for the appellant regarding reduction of the sentence to one already undergone by him.

8. After perusal of the record available before us, we have come to the irresistible conclusion that prosecution has successfully established the charge against the appellant. Since the appellant has chosen not to argue the case on merits and does not press instant appeal, we would like to consider the reduction of sentence as prayed by the learned counsel for the appellant and then conceding the same by the learned Deputy Prosecutor General by not arguing the case on merits, the appellant has left himself at the mercy of this Court. Once a person leaves himself at the mercy of the Court and seeks a chance to reform himself, the Courts have generally shown a lenient view and allow a chance to the accused to reform oneself. However, the extent of such leniency should not be at the cost of frustration of the ends of justice, it should be based on a judicious scale and while keeping in view the maximum and minimum sentence of the offence, moreover, due to pendency of trial as well as appeal against the appellant, he has been suffering a lot of agony of humiliation but it would badly effect his family, therefore, in view of the discussions made herein above, we find it a fit case for departure from the normal practice of determining the quantum of sentence but also it would serve both the purposes deterrence and reformation, if the sentence awarded to the appellant is altered to meet the ends of justice. 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 may respectfully be placed on the case law tilted as “State through Deputy Director (Law) Regional Directorate, Anti Narcotics Force V. Mujahid Lodhi (PLD 2017 SC 671)”.

9. Keeping in view of the foregoing reasons while considering the no objection raised by the learned Deputy Prosecutor General as well as the circumstances discussed herein above, we find no reason to decline the prayer of the learned counsel for the appellant. Accordingly, the above captioned Cr. Appeal is partly allowed. The sentence awarded to the appellant is reduced to one already undergone by him including fine amount.

10. With the above modification and alteration, the instant Cr. Appeal stands disposed of.

JUDGE

Ghulam Muhammad / Stenographer