THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 566 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

Respondent No.2 : Nemo

Date of Hearing : 09.08.2023

Date of Judgment : 09.08.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Respondent No.2 Muhammad Hussain was tried by learned Special Judge-I (CNS) Karachi for offence under Section 9(b) of CNS Act 1997 in Special Case No. 82/2011. Respondent No.2 pleaded guilty and he was convicted for offence under Section 9(b) of CNS Act, 1997 and sentenced to the period, which he 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 respondent No.2, it was served upon him and he engaged a counsel but today neither he nor his counsel are in attendance.

4. Mr. Habib Ahmed Special Prosecutor ANF contended that it was case of recovery of 790 grams of heroin and sentence awarded to the respondent No.2 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 30.01.2012, 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. He is first offender admittedly. He prays for lenient view in the matter of punishment he is the only bread earner member of the family. He is young by age. He remained UTP for the months together. The case of the accused falls within the ambit of section 6/9(b) CNS Act, 1997. The learned SPP concedes lesser punishment in the circumstances. The accused therefore is 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 with benefit of section 382-B Cr.P.C for the period he has already undergone in the interest of justice.”

6. It appears that SPP 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 respondent No.2 was the first offender; that only bread earner of his family; that he was young in age. It was further mentioned that he has remained in jail since the date of his arrest. Lastly, it has been mentioned that unconditional apology was tendered by the respondent No.2 and he has regretted the offence committed by him.

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. Moreover, SPP 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