THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Jail Appeal No. 500 of 2020

Confirmation Case No. 17 of 2020

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Muhammad Ansar through Mr. Saqib Ali Awan advocate

Respondent:                                     The State through Mr. Ali Haider Saleem Additional Prosecutor General Sindh

Date of hearing:                              28.09.2021

Date of announcement:                30.09.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant for being in possession of 20300 grams of Heroin Powder, after due trial for an offence punishable under Section 9(c) of the CNS Act, 1997, was convicted and sentenced to death by learned 1st Additional Sessions Judge/MCTC Malir, Karachi vide judgment dated 06.10.2020, which is impugned by the appellant before this Court and reference is also made by learned trial Court for confirmation of death sentence to the appellant.

2.         The appeal preferred by the appellant and reference made by learned trial Court now are being disposed of through instant judgment.

3.         At the very outset, it is stated by learned counsel for the appellant, under instructions, that he would not press the disposal of instant appeal on merits provided the death sentence awarded to the appellant is modified with imprisonment for life with fine by considering the mitigating circumstances of the case.

4.         Learned Addl. P.G for the State recorded no objection to the above said proposition, by stating that it amounts to acceptance of guilt on the part of appellant.

5.         We have heard learned counsel for the appellant and perused the record.

6.         It is stated by complainant SIP Adeel Ahmed Shah and PW mashir Pervaiz Ahmed that on arrest from the appellant was secured Heroin Powder in shape of 19 packets, it was weighed to be 20300 grams, a memo of arrest was prepared at the spot and the appellant with the recovery so made from him was taken to P.S Gadap City, there he was booked in the present case formally and further investigation of the case was conducted by I.O/SIP Mumtaz Ahmed, as per him, after usual investigation, he submitted the challan of the case against the appellant for his trial for the above said offence. They have stood by their version on all material points with regard to the recovery of Heroin Powder from the appellant, despite lengthy cross examination. Safe custody of the narcotic was proved along with a positive chemical report and the appellant has even admitted his arrest at the place of incident in his statement recorded u/s 342 Cr.P.C. The witnesses so examined by the prosecution were having no reason to have involved the appellant in this case falsely by foisting huge quantity of narcotic substance upon him. In these circumstances, the learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

7.         However, the sentence of death awarded to the appellant needs to be modified for the reasons that as it has come on record that the appellant is young man of 29 years of the age; he is having five kids and there is no criminal record against him, thus is capable of reformation. By accepting his guilt he has also shown his genuine remorse. By considering these factors as mitigating circumstances, we hereby modify death sentence awarded to the appellant with rigorous imprisonment for life with fine of Rs.300,000/- and in case of default in payment of fine, he would undergo simple imprisonment for one year and six months with benefit of section 382(b) Cr.P.C, which even otherwise is an alternate sentence for the said offence.

8.         In the case of Muhammad Tariq vs. The State (2009 SCMR 1220), the Honourable Supreme Court has held that;

“The question arises as to why death, imprisonment for life and imprisonment upto 14 years, have been provided in subsection 9(c) of the Act. In our view, the imposition of punishment has been left upon the discretion of the Court, considering the facts and circumstances of each given case. There may be cases of different types of accused, who may be involved in the commission of the offence of section 9(c) of the Act, but their role, part, act or omission, character or conduct is such as to call for lesser punishment than of death. The case of first offender, who is not a drug baron can fall in this domain. An accused having no antecedents of any criminal case to his score, he being not an incorrigible, desperate, or hardened criminal, the punishment lesser to the death in such, case can serve the purpose of dispensation of criminal justice. In such cases, the extreme penalty of death can be avoided to be handed down to the accused, to grant him a chance to mend his ways in his future life. In the present case, we have not been informed that the appellant was previously involved in any case of such nature.”   

9.         The Appeal and reference are disposed of in above terms.

 

JUDGE

 

JUDGE