IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr. Jail Appeal No.D-18   of  2023

Present:

Mr.Justice Muhammad Saleem Jessar-J

Mr. Justice Khadim Hussain Soomro-J

Appellant           :   Kashmir son of Ghulam Shabir Jatoi                                                    through Mr. Ahmed Bux Abro, Advocate.

State                 :   Through Mr. Aitbar Ali Bullo, D.P.G. Deputy                               Prosecutor General. 

Date of hearing      :  21.11.2023.

Date of Decision    :  21.11.2023.

J U D G M E N T.

Muhammad Saleem Jessar, J.-  The instant Criminal Appeal is directed against the judgment dated 09.02.2023, passed by learned 1^st Additional Sessions Judge/Special Judge for Control of Narcotic Substnce Act, MCTC, Shikarpur, in Special Case No.688/2021 (Re. The State Vs. Kashmir Jatoi), emanating from FIR No.33/2021, registered with P.S Mari District Shikarpur, for offence punishable U/S. 9 (c) Control of Narcotic Substance Act 1997, whereby the appellant has been convicted under Section 9 (c) Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I for nine (09) years  and pay fine of Rs.80,000/= (Eighty Thousands Rupees) and in default  thereof to  suffer  six months more. The benefit of section 382-B, Cr.P.C is also extended in favour of the accused/appellant.

            2.         Briefly, the prosecution case is that on 26.10,2021 at 1900 hours  ASI Azhar Ali Bukejo  alongwith his staff during patrolling  when reached  at Yaseen Wah, they noticed one person  standing alongwith black colour shopper, who seeing them in a police mobile  tried to run away, but was apprehended by them and they recovered a black shopper from his hands containing five pieces of charas total weighing 5 k.kilograms.  The recovered charas was sealed at the spot and after preparing such memo brought the appellant and recovered property at police station where instant FIR was registered against him on behalf of the state.

            3.         After  investigation, challan was submitted against the appellant. After providing necessary docuemtns to the appellant, a formal charge was framed against him by the trial Court to which he pleaded not guilty and claimed trial.  In order  to substantiate the charge against the appellant,  prosecution examined in all five P.Ws.  Thereafter  statement of accused was recorded under Section 342 Cr.P.C wherein he denied the allegations leveled against him and claimed false implication at the hands of police and claimed trial.

            4.         Learned trial Court, after considering the material available before it and hearing the learned counsel for the respective parties, handed down the impugned judgment by convicting and sentencing the appellant, as stated supra.

            5.         Learned Counsel for the appellant, after arguing the matter at some length has submitted that the appellant has served out a substantial portion of his sentence, therefore, he prayed that the sentence awarded to the appellant under impugned judgment it may be  reduced to the period he has already undergone.  He further submits that appellant does not wish to contest this Criminal Appeal on merits and leave himself at the mercy of the Court, if this Court while maintaining the conviction reduce the sentence to one he has already undergone, he would not press the disposal of instant Criminal Appeal on merits. In support of his contentions, learned counsel for the appellant has  relied upon an unreported authority  of this Court in Criminal Appeal No.D- 13 of 2023 re: Shahmir Jatoi  v. The State  vide order dated 27.9.2023, certified copy thereof is already brought on record. 

            6.         On the other hand, learned  Deputy Prosecutor General, Sindh, appearing for the State has supported the impugned judgment; however, he has acceded  to the request of learned Counsel for the appellant and raised no objection in case a lenient view is taken against the appellant by dismissing the appeal, while treating his sentence to one he has already undergone. 

            7.         We have heard learned Counsel for the appellant, learned Deputy P.G. for the State and have gone through the record.

            8.         Perusal of the record reveals that out of conviction and sentence awarded to the appellant  under impugned judgment, he has completed substantial portion of sentence. Per Jail Roll called from the concerned jail authorities, it appears that the appellant has served two years and 5 days upto 21.11.2023 and earned remission of 4 years and 6 months  thus he has served out total 6 years, 6 months and 5 days while un-expired portion of sentence is 3 years  out of  total sentence of 9 years and 6 months (including sentence of fine) as on 21.11.2023. In this view of the matter, there appears no legal impediment in accepting the request of the appellant only in order to enable the appellant to reform and rehabilitate himself to rejoin the mainstream of life once again to become a useful member thereof.

9.         For what has been discussed above, by taking lenient view, the instant Criminal Appeal is dismissed but with modification that the sentence including sentence of fine awarded to the appellant under impugned judgment is reduced to one as has been already undergone. Appellant Kashmir Jatoi shall be released forthwith, if he is not required to be detained in any other custody case.

                        Instant Criminal Appeal is disposed of with above modification.

                                                                                                                        JUDGE

                                                                                                JUDGE

shabir

Qazi Tahir PA/*