IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Jail Appeal No. D- 12 of 2023.

Present:

Mr. Justice Muhammad Saleem Jessar.

Mr. Justice Jawad Akbar Sarwana.

Muhammad Ismail Pathan. …….………...Appellant.

Versus

The State. …..…....….Respondent.

Appellant present in person (produced by jail authorities).

Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing: 23.01.2024.

Date of judgment: 23.01.2024.

Judgment

Muhammad Saleem Jessar, J-. Through this appeal, appellant Muhammad Ismail son of Haji Daro Khan Pathan has assailed the judgment dated 15.04.2023, penned down by learned Sessions Judge/ Special Judge for CNS, Jacobabad, in Special case No. 86 of 2022, emanating from F.I.R No.28/2022 of P.S Airport Jacobabad, whereby the appellant was convicted and sentenced for offences under Section 9 (c) of Control of Narcotic Substances Act, 1997, to undergo R.I for five years and six months and to pay fine of Rs.25000/-, or in default in payment of fine, to further undergo S.I for five months and fifteen days more. The appellant was however extended benefit of Section 382-B Cr.P.C.

2. The appellant who is produced in custody by the jail authorities submits that he has mostly completed quantum of sentence awarded to him. He further submitted that, he is ready not to press the instant appeal on merit, if his sentence is reduced to that of already undergone and that he may be given a chance in his life to rehabilitate himself. Per appellant, he is sole breadwinner of his entire family, who are on starvation due to his confinement. Lastly, he prayed for taking leniency and modification in his sentence for the period, he has already undergone.

3. Conversely, the learned Addl. P.G. submits that the appellant has sufficiently been punished as he has remained in jail for sufficient period; therefore, he recorded no objection, if the sentence of the appellant is reduced to that of already undergone.

4. According to jail-roll of the appellant dated 23.01.2024, the appellant has served out substantive sentence for 01-year and 07-months. Besides, he has earned remissions for 03-years, 05-months and 27-day totaling to 05-years, 05-months and 27-days; thereby the appellant has completed most of the quantum of sentence awarded to him, therefore, in our view it would serve both the purposes of deterrence and reformation, if the sentence, awarded to appellant, is reduced to one already undergone by the appellant. Moreover, conduct of the appellant in jail is also “satisfactory” as reported by the jail authorities. The appellant also appears to be first offender, as there is no such material on record that the appellant is already convicted in any other case.

5. 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 is placed on the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi (PLD 2017 SC 671) wherein it has been held that:-

“The exercise of jurisdiction and discretion in the matter of the respondent's sentence by the trial court and the High Court have not been found by us to be open to any legitimate exception, particularly when the reasons recorded for passing a reduced sentence against the respondent and for making a departure from the above mentioned sentencing guidelines have been found by us to be proper in the peculiar circumstances of this case.”

6. The Hon’ble Apex Court had also been pleased to reduce sentence in cases of similar nature reported as Sherzada v. The State (1993 SCMR 149) and Gul Badshah v. The State (2011 SCMR 984).

7. In view of above facts and circumstances of the case, we are of the opinion that the appellant has succeeded to make out a case for reduction of his sentence. Therefore, in order to give a chance to the appellant in his life to rehabilitate himself so also following the dictum laid down case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi; Sherzada v. The State and Gul Badshah v. The State (supra) and case of Niaz-ud-Din v. The State (2007 SCMR 206), this appeal is partly allowed. Consequently, while maintaining the conviction of the appellant, the sentence inflicted on him is reduced to that of already undergone including sentence of fine amount and the term of imprisonment in default thereof. The appellant shall be released forthwith, if his custody is not required in any other case.

Judge

Ansari