JUDGMENT.

Ahmed Ali Sheikh, J.- These appeals filed by appellant Abdul Ghani are directed against the judgment, dated 23.4.2008, whereby learned Ist. Additional Sessions/ Special Judge(CNS), Khairpur, has convicted the appellant under section 9-C of CNS Act, 1997 and sentenced him for R.I.8 years and also to pay a fine of Rs. 25000/- or in default six months S.I.

The prosecution case briefly stated is that on 28.4.2006 complainant Syed Asad Ali Shah, Excise Inspector Khairpur left the Excise Police Station alongwith his subordinate staff namely EC Mushtaq Wassan, EC Akhtiar, ED Illahi Bux, EC Hadi Bux Phulpoto, EC Bashir Maitlo and EC Gada Ali for detection crime near Pishori hotel old national highway Khairpur. During checking one Wagon bearing No.CF 3483 came and stopped. During checking one suspicious person having little bag was got alighted from the wagon and on enquiry disclosed his name Abdul Ghani and in presence of EC Akhtiar and EC Mushtaq, his physical search was conducted and from his front pocket, two currency notes of Rs.100/-, NIC and a small bag were secured. The bag was containing one AJRAK and shopping bag. Shopping bag contained opium, following which they apprehended the accused and weighed opium which became 1900 grams. 200 grams were sealed separately in white paper for chemical examination while remaining opium was sealed separately. Such memo of arrest and recovery was prepared in presence of above named Mashirs. Thereafter, the FIR was lodged by complainant on behalf of the State.

After usual investigation the appellant was sent up to face the charge.

Formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial.

In support of its case prosecution examined in all two witnesses, namely, complainant Syed Asad Ali Shah, Excise Inspector and Mashir EC Akhtiar Ali

Statement of appellant was recorded under S. 342 CrPC, in which he denied the allegation leveled against him and pleaded innocence, but neither he examined himself on oath nor led any evidence in defence.

In his deposition P.W.1 Syed Asad Ali Shah deposed that on 28.4.2006 he was Excise Inspector, Khairpur circle. On the same day t about 3-30 p.m. he alongwith his subordinate staff left circle office vide entry No.1 for detection of excise crimes. They came to old national highway near Peshawari hotel and started checking vehicles. After sometime they saw wagon bearing No.3483 coming from Khairpur town, which was stopped. They found a suspected person having bag in his hand sitting in the wagon. He was got alighted from wagon and on enquiry he disclosed his name as Abdul Ghani and in presence of Mashirs EC Akhtia and EC Mushtaq his physical search was conducted. From his front pocket, two currency notes of Rs.100/- and NIC were secured. On opening the bag same was found containing one AJRAK and shopping bag. Shopping bag contained opium which became 1900 grams. 200 grams were sealed separately for chemical examination while remaining opium was sealed separately. Such memo of arrest and recovery was prepared in presence of above named Mashirs. He further deposed that sample was sent to laboratory. He recorded statements of P.Ws.

P.W.2 EC Akhtiar Ahmed reiterated his statement with some elaboration. He verified the fact that appellant was apprehended in his presence and they secured opium from his possession and such memo of arrest and recovery was prepared in his presence and his statement was recorded by P.W.1.

Complainant and Mashir despite lengthy cross-examination stood firm and their testimony has not been shaken on material points.

Learned counsel for the appellant requested that he will not press this appeal if sentence of the appellant is reduced and lenient view is taken.

It transpires from the record that opium was recovered from the possession of the appellant. He is in custody since long i.e. 28.4.2006 and had served out substantive part of his sentence. He is first offender and has shown his remorse and penitence after his conviction. Thus he deserves some leniency. Even if an accused intends to cut off from his past then he must be provided an opportunity to start a new life.

In case of Niaz-ud-din vs. The State (2007 SCMR 206) accused was found in possession of 5 KGs of Heroin and sentenced for imprisonment for 10 years. Accused was non covictee, therefore, his sentence was reduced from 10 years to 6 years by Honourable Supreme Court of Pakistan. In similar circumstances a divisional Bench of this court in case of Ikhtiyar Vs. The State (2009 P.Cr.L.J 355) reduced sentence from 10 years to RI for 5 years with substantial reduction in fine.

Consequently for the reasons stated above, we maintain conviction of the appellant but reduce the sentence awarded to the appellant from R.I.8 years to R.I.4 years.

With the aforementioned modifications we had rejected these appeals on 07.10.2009 by a short order and these are the detailed reasons for the same.

JUDGE,