THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 415 of 2022

 

  Present:        Mr. Justice Naimatullah Phulpoto

                                                                                                                           Mr. Justice Amjad Ali Sahito

 

 

Appellant                  :           Gulawat Khan through Mr. Saifullah advocate

 

 

Respondent               :           The State through Mr. Habib Ahmed Special Prosecutor ANF

 

Date of Hearing        :          02.11.2023

 

Date of Judgment      :          02.11.2023

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- Gulawat Khan appellant was tried by learned Special Court (CNS-II) Karachi in Special Case No. 392/2019. On conclusion of the trial, vide judgment dated 10.06.2022, appellant was convicted under Section 9(c) of the CNS Act 1997 and sentenced to undergo rigorous imprisonment for 12 years and to pay fine of Rs.50,000/-. In case of default in payment of fine, the appellant was ordered to undergo imprisonment for 03 months. Benefit of Section 382(b) Cr.P.C was also extended to the appellant.

2.         Brief facts leading to the filing of the instant appeal are that on 13.07.2019 at 1630 hours at the gate of H.No. A-42, Ahmed Goth, Sector R-4, Gulshan Maymar, Karachi, Inspector Wajid Hussain of PS ANF Clifton Karachi along with his subordinate staff arrested the appellant on the pointation of spy informer and recovered from his possession one nylon sack containing 10 packets of charas wrapped with yellow tape weighing 10 K.G, case property was sealed and mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought at P.S ANF Clifton, Karachi, where FIR bearing Crime No. 49/2019 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, final report was submitted against the appellant under section 9(c) of CNS Act 1997. Trial Court framed Charge against appellant at Ex.3 under the above referred section. Accused pleaded not guilty and claimed trial.

4.         At trial, prosecution examined five witnesses. Thereafter, prosecution side was closed.

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 10.06.2022, 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 10.06.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8.         Mr. Saifullah, 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 it is the case of prosecution that narcotic substance actually belonged to one Mureed Khan, the absconding accused in this case; that appellant is aged about 45 years; he is father of 05 children and has an old mother; he is sole supporter of the family. It further submitted that appellant is not previous convict and he intends to reform his life.

9.         Mr. Habib Ahmed Special Prosecutor ANF submits that prosecution has succeeded to prove its case against the appellant. So far reduction in sentence is concerned, he submits that sentence may be reduced to some reasonable extent.

10.       We have carefully heard learned counsel parties and perused the entire evidence available on record. In order to satisfy ourselves that whether prosecution succeeded to prove its case against the appellant, we have re-examined entire prosecution evidence recorded before trial Court and it appears that prosecution has successfully proved it’s case against the appellant beyond any shadow of reasonable doubt. Report of chemical examiner was also positive and the prosecution has also proved safe custody and safe transmission of the charas to the chemical examiner. Even no question was put to the prosecution witnesses regarding any tempering with the case property. Evidence of ANF 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 10.06.2022 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 Apex 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, it is pointed out by defence counsel that real owner of the narcotics/charas was one Mureed Khan who is still absconding, when it was confronted with Special Prosecutor ANF, he has replied in positive. It is submitted by counsel for the appellant that the appellant is aged about 45 years; he is father of 05 children and has an old mother to whom he has to support. It further submitted that appellant is not previous convict and he intends to reform his life. As per jail roll dated 08.09.2023, total sentence with fine was 12 years, 03 months; remission earned upto 14.09.2023 is 06 years, 06 months and 28 days, sentence served excluding remission is 04 years, 01 month and 28 days and sentence served including remission as per calculation of Jail authorities is 10 years, 08 months and 26 days. It is matter of record that charas recovered from the appellant did not exceed 10 K.G, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellant is made out.

12.       In the case of Gul Raeef Khan v. The State (2008 SCMR 865), the Apex court has held as under:-

“It is true that prosecution has successfully established charge against the petitioner by producing overwhelming incriminating evidence, however, keeping in view the request made by the learned counsel for the petitioner and grounds put forward by him for reduction in the quantum of sentence, as well as considering the concession made by learned Assistant Advocate General conviction is maintained, but sentence under 9(c) of the Control of Narcotic Substances Act 1997 is reduced from 14 years’ R.I. to that of seven years’ R.I. with the benefit of section 382-B, Cr.P.C. which has already been extended to him by the learned High Court.”     

 

13.       For the above stated reasons, appeal is dismissed on merits, however, sentence of the appellant is reduced to one, which the appellant has already undergone and while looking to the poverty of the appellant, the fine is remitted in the peculiar circumstances of the case.

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

JUDGE

                                   

 

JUDGE