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

Cr. Appeal No.D-76 of 2023

Present:

Mr. Justice Muhammad Saleem Jessar-J.

Mr. Justice Jawad Akbar Sarwana-J

Appellant Through Mr. Saeed Ahmed Bijarani, Advocate.

(Irshad Bhayo)

Respondent Through Mr.Aitbar Ali Bullo, DPG.

(The State)

Date of hearing : 19.3.2023.

Date of Decision : 19.3.2023.

J U D G M E N T.

Muhammad Saleem Jessar, J.- Through this appeal, appellant has challenged the judgment dated 07.11.2023 passed by learned trial Court/1^st Additional Sessions Judge/MCTC/Special Judge for CNS Cases, Kandhkot vide Special CNS Case No.31 of 2023 re: The State v. Irshad Bhayo arisen out of Crime No. 114 of 2023 of P.S Kashmore for offence punishable U/S. 9 (c) Control of Narcotic Substance Act 1997. After full dressed trial the appellant has been found guilty of the charge, therefore, has been convicted under Section 9 (c) Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I for nine (09) years with fine of Rs.80,000/= and in default thereof to suffer two years more. The benefit of section 382-B, Cr.P.C has also been extended in favour of the appellant.

2. Crux of prosecution case, as disclosed in the FIR dated 04.6.2023 lodged by ASI Baran Khan Jakhrani, are to the effect that on the fateful day he alongwith his subordinate staff was on patrol duty when they reached at Malik Larro (curve) Indus Highway, they saw a person standing alongwith a black colour shopper who by seeing them in police uniform attempted to run away however, was apprehended by them. On his body search they (police) recovered black shopper from his possession which was containing charas in shape of pieces. On weighing it became 2000 grams. ASI/complainant by citing his subordinates namely PC Nadir Ali and PC Ghulam Sarwar as mashirs handed down such memo of recovery and arrest. Later they came back at P.S alongwith accused as well as the property and to such effect present FIR was lodged on behalf of the State.

3. After investigation, challan was submitted against the appellant. After providing necessary documents to the appellant, a formal charge was framed against him by the trial Court to which he pleaded not guilty and claimed trial.

4. In order to substantiate the charge against the appellant, prosecution examined in all four P.Ws and then the side of prosecution was closed vide statement of ADPP at Exh:8.

5. Thereafter statement of accused as provided under Section 342 Cr.P.C was recorded wherein he denied the allegations leveled against him and claimed his innocence as well as false implication at the hands of police during his illegal confinement for which his uncle had also filed application U/S 491 Cr.P.C. He also examined his witness Muhammad Sadique in defense and claimed trial.

6. On conclusion of trial, learned trial Court, after hearing the learned counsel for the respective parties, handed down the impugned judgment by convicting and sentencing the appellant, as stated above, giving rise to filing of instant appeal.

7. After arguing appeal at some length, learned counsel has drawn attention of the Court towards statement of accused under Section 342 Cr.P.C at page No.77 of the paper book and then refer to page No.79, application under Section 491 Cr.P.C filed by one Mohammad Sadique Bhayo showing illegal confinement of the appellant at the hands of SHO P.S Kashmore on 01.6.2023. He further pointed out that in his statement under Section 342 Cr.P.C while responding to question No.7, the appellant had also specifically deposed that he was taken away by the SHO P.S Kashmore on 27.5.2023, hence his uncle had filed application U/S 491 Cr.P.C, regarding his illegal confinement which he has got exhibited, hence submits that in the light of above malafide on the part of police, the appellant would not contest the appeal on merits and seeks its disposal by modifying sentence awarded to the appellant by trial Court and reducing it to the period he has already undergone.

8. Learned Deputy Prosecutor General, Sindh, appearing for the State 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 reducing his sentence to one he has already undergone.

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

10. The Jail Roll dated 19.3.2024 submitted by the Superintendent Central Prison, Larkana reveals that appellant has remained in jail for 9 months and 15 days out of total sentence awarded to him by the trial Court under impugned judgment.

11. Perusal of record reflects that in his statement under Section 342 Cr.P.C Applicant had specially denied the charge against him and claimed innocence and false implication in this case during illegal confinement by the police for which his uncle Muhammad Sadique also filed application U/S 491 Cr.P.C on 01.6.2023, copy whereof is also brought on record, available at page No.79, which reveals that on 27.5.2023 appellant Irshad Bhayo alongwith his uncle Muhammad Sadique were available at house when at 01.00 p.m SSP Kashmore @ Kandhkot alongwith the then SHO P.S Shabirabad and several other police officers committed surprise raid and taken away him illegally without any case. It appears that the instant FIR was lodged on 04.6.2023 i.e. after about 7 days of his arrest and 3 days of filing of above application U/S 491 Cr.P.C. which shows that most probably the instant case was managed against the appellant and recovery was foisted against him during his illegal confinement which creates mitigating circumstances as regards the accusation of the appellant is concerned.

12. In this view of the above matter coupled with the no objection extended by learned DPG, there appears no legal impediment in accepting the request of the learned counsel for 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 of the society.

13. 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 he has already undergone. Appellant 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

shabir