THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 528 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : The State/ ANF through Assistant Director Law, through Mr. Habib Ahmed Special Prosecutor

Respondents No.2&3 : Nemo

Date of Hearing : 15.08.2023

Date of Judgment : 15.08.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Respondents No.2 and 3 Muhammad Iftikhar and Intikhab Alam were tried by learned Special Judge-I (CNS) Karachi for offence under Section 9(b) of CNS Act 1997 in Special Case No.06 of 2011. Respondents pleaded guilty and they were convicted for offence under Section 9(b) of CNS Act, 1997 and sentenced to the period, which they had already undergone.

2. The State/ANF filed Revision for enhancement of the sentence. During pendency of the Revision, it was converted to Criminal Appeal in terms of the judgment passed by Supreme Court in the case of Deputy Director Regional Directorate, Anti-Narcotic Force, Lahore vs. Mst. Fazeelat Bibi (PLD 2013 SC 361).

3. Notice was issued to the respondents No.2 and 3, it was served upon them and engaged a counsel but today neither they nor their counsel are in attendance.

4. Mr. Habib Ahmed Special Prosecutor ANF contended that it was case of recovery of 375 grams of heroin and sentence awarded to the respondent No.2 and 3 was inadequate and against the sentencing policy as laid down in the case of Ghulam Murtaza and another vs. The State (PLD 2009 Lahore 362).

5. We have perused the order passed by learned Special Judge-I dated 22.11.2011, which depicts the reasons for taking lenient view. Impugned order reads as under:

“The accused named above pleads guilty voluntarily to the satisfaction of the court. They are first offenders admittedly. They pray for lenient view in the matter of punishment. They are the only bread earner members of their family. They are young by age. They remained UTP for the months together. The case of the accused persons falls within the ambit of section 6/9(b) CNS Act, 1997. The learned DDPP concedes lesser punishment in the circumstances. The accused therefore are hereby convicted on the plea of guilty which is accepted by this Court being unconditional and unqualified and purposeful in law, under the aforesaid section of law and sentenced thereunder to suffer the term of Rigorous Imprisonment for the period they have already undergone in the interest of justice.”

6. It appears that DDPP had conceded before the trial Court that circumstances of the case warrant taking of lenient view. Learned trial Judge while awarding lesser punishment has assigned the reasons that respondents No.2 and 3 were the first offenders; only bread earners of their families; that they were young in ages. It was further mentioned that they had remained in jail since the date of their arrest. Lastly, it has been mentioned that unconditional apology was tendered by the respondent No.2 and 3 and they regretted the offence committed by them.

7. We have perused the judgment passed by Supreme Court in the case of State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 S.C 671), in which it is held that in appropriate cases, court may make departure from the sentencing guidelines as provided in the case of Ghulam Murtaza (supra). In the present case, sufficient reasons have been assigned by the trial Court for taking lenient view. Crime also pertains to the year 2010. Moreover, DDPP had conceded for taking lenient view.

8. For what has been discussed above, we are of the view that no case for enhancement of the sentence is made out. Appeal is without merits and the same is dismissed.

JUDGE

JUDGE