THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 245 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Hayat Khan @ Chonk through Mr. Shamsul Hadi advocate

Respondent : The State through Mr. Muhammad Iqbal Awan Addl. P.G

Date of Hearing : 23.01.2023

Date of Judgment : 23.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Hayat Khan @ Chonk appellant was tried by learned I-Additional Sessions Judge/MCTC, Malir Karachi in S.C.No. 3122 of 2021. On conclusion of the trial, vide judgment dated 17.03.2022, appellant was convicted under Section 9(c) of the CNS Act 1997 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.10,00,000/- (One Million). In case of default in payment of fine, the appellant was ordered to undergo simple imprisonment for 06 months more. Appellant was extended benefit of Section 382(b) Cr.P.C.

2. Brief facts leading to the filing of the instant appeal are that on 30.07.2021 SIP Rana Shah Muhammad of PS Quaidabad apprehended appellant at Rehri Road Mustafa Masjid Street No.04, Landhi, Karachi and from his possession chars weighing 1500 grams was recovered in presence of mashirs PCs Muhammad Wahid and Abu Bakar. Appellant was arrested, case property was sealed and mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought at P.S Quaidabad, where FIR bearing Crime No. 481/2021 was lodged against appellant on behalf of state.

3. During investigation, chars was sent to chemical examiner, positive report of the chemical examiner was received. On conclusion of investigation, challan was submitted against the appellant under section 9(c) of CNS Act 1997. Trial Court framed Charge against appellant at Ex.2 under the above referred section. Accused pleaded not guilty and claimed trial.

4. At trial, prosecution examined three witnesses. Thereafter, learned DDPP closed the prosecution side.

5. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.21. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defense.

6. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 17.03.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against the conviction and sentences recorded against him.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 17.03.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Shamsul Hadi, learned advocate for the appellant after arguing the appeal at length, did not press the appeal on merits but submits that lenient view in the sentence of the appellant may be taken on the ground that appellant is young person of 27 years of age, he is the sole supporter of his old parents. It is also submitted that appellant is not previously convict and he intends to reform his life.

9. Mr. Muhammad Iqbal Awan, Addl. P.G argued that prosecution has succeeded in proving it’s case against the appellant. However, recorded no objection, in case, sentence is reduced to some reasonable extent.

10. We have carefully heard learned counsel parties and perused the entire evidence available on record. From perusal of evidence it transpires that prosecution has successfully proved it’s case against the appellant beyond any shadow of reasonable doubt. Appellant was found in possession of 1500 grams of chars and report of chemical examiner is positive. Evidence of police officials on material particulars of the case is trustworthy and confidence inspiring. It is matter of record that these witnesses were subjected to the lengthy cross-examination but nothing favourable to accused except minor discrepancies could be sucked. In these circumstances, we have no hesitation to hold that Trial Court has rightly appreciated the evidence according to settled principle of law as such conviction and sentence recorded by the trial Court vide judgment dated 17.03.2022 requires no interference by this Court. Resultantly conviction is maintained.

11. As regards to the quantum of sentence is concerned, in the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 SC 671), in the matter of sentence, the Hon’ble Supreme Court has observed that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure." In the present case, learned Advocate for the appellant did not press appeal on merits. It is submitted by him that appellant is young man aged about 27 years and he is the sole supporter of his old parents. It is also submitted that appellant is not previously convicted and he intends to reform his life. As per jail roll dated 14.10.2022, the appellant has already served out sentence including remission 05 years, 04 months and 19 days, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellant is made out.

12. For the above stated reasons, appeal is dismissed on merits, however, sentence of the appellant is reduced from 10 years R.I to the period, which the appellant has already undergone, fine is remitted in the peculiar circumstances of the case.

13. Subject to above modification, in the sentence, the Appeal is disposed of in the above terms.

JUDGE

JUDGE