ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr. J/Appeal No. D- 76 of 2007

DATE         ORDER WITH SIGNATURE OF JUDGE

28.10.2009

Mr. Ishrat Ali Lohar advocate for Appellant

Mr. Amjad Ali Sehto on behalf of ANF

            The learned Counsel for the Appellant states that he does not press this appeal on merits but also requests that the quantum of punishment of 07 years and fine of Rs.50,000/- be reduced to that of already undergone.

            The Counsel for ANF opposes this request and states that the offence of 9(c) has been proved and the accused has been convicted on the basis of material and reduction in quantum of punishment is uncalled for.

            I have heard the learned Counsel and perused the record.

            The quantity of charas alleged to have been recovered from the Appellant is 02 k.g which has not been recovered from his person but has been recovered from the rikshaw which was owned and driven by the Appellant. The Appellant is in jail. As per the jail roll the appellant has served substantial period of the sentence. As per jail roll dated 19.6.2009 the Appellant has served out the sentence of 03 years 06 months and 21 days and has earned remission of 01 years 08 months and 12 days and his unexpired portion of sentence which is 03 years 03 months and 05 days.

            The Appellant is the first offender and he claims to be lone bread earner of his family. He has served substantial period of sentence and the ends of justice have met with. We therefore, in the given circumstances and for the aforesaid reasons dismissed this appeal but reduce the quantum of sentence under the impugned order from 07 years and fine to that he has already undergone.

            Before parting with this appeal we have noticed that the rikshaw bearing No.G-64997 has been confiscated under the impugned judgment but without following the procedure of confiscation by the Trial Court inasmuch as even the question in regard to the ownership of the rikshaw has not been put to the Appellant under section 342 Cr.P.C.  The Appellant has never been provided opportunity to establish that the rikshaw is owned by him. We, therefore, in the given circumstances feel that it would be in the interest of justice that the rikshaw which is owned by the Appellant be restored to him to enable the Appellant to earn his livelihood.

            The Appellant shall be released forthwith if not required in any other case. Office shall issue writ of release.

            Copy of this order be faxed to the Sessions Judge Jamshoro.

                                                                                                            JUDGE

                                                                                    JUDGE