IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Present:-

Mr. Justice Shamsuddin Abbasi

Mr. Justice Jan Ali Junejo,

Cr. Appeal No. D-77 of 2023

Appellant		Zamir Hussain son of Ghulam Shabbir Marffani,
		Through Mr. Syed Qazim Raza Shah, advocate

State		Mr. Ali Anwar Kandhro, Additional Prosecutor General for the State
Date of hearing		25-03-2025
Date of order		25-03-2025

O R D E R

Shamsuddin Abbasi, J. Through instant criminal appeal, appellant Zamir Hussain s/o Ghulam Shabbir Marfani, has assailed the Judgment dated 15.11.2023, passed by the learned I-Additional Sessions Judge/Special Judge Narcotics, Shikarpur, in Special Case No.188/2022, (re: The State V/S Zamir Hussain), emanating from Crime No. 14/2022 of P.S. Madeji, for the offence 9(c) of C.N.S Act, 1997, whereby the learned trial court has convicted and sentenced the appellant to suffer rigorous imprisonment for 14 years and to pay fine of Rs. 400,000/-. In case of failure, the appellant will suffer S.I for six months more. Accused was also given benefit of Section 382-B Cr.P.C for the period he remained as under trial prisoner.

2. Relevant facts of the prosecution case as per FIR lodged by the complainant ASI Imtiaz Ali Soomro are that on 16.02.2022 at 1830 hours, he along with his subordinate staff left the P.S in a Police Mobile bearing registration No. SPD-468, vide entry No. 17 at 1700 hours, for patrolling purpose along with investigation kit and digital scale. Per complainant, after visiting different places, when, at about 1730 hours, they reached near Jalbani curve situated on a main road leading from Sukkur to Larkana, where, they saw that one person was standing on the left side of the road, who was having blue colour shopper in his hand. After seeing them in a Police Mobile, said person had tried to run away towards the side of village Muhammad Murad but they immediately stopped their Police Mobile and arrested him after chasing behind him up to 15 paces along with blue colour shopper. Per complainant, after arresting the accused, he had snatched blue colour shopper from his hand and then he had appointed HC Allah Wadhayo and PC Ashique Hussain as mashirs. On opening blue colour shopper, they had found seven pattis of Chars along with one small and one big piece of Chars, which on weighing had become 8000 grams. On enquiry about his identity, accused disclosed his name as Zamir Hussain S/O Ghulam Shabir Marfani R/O Wakro. During his bodily search, they had also recovered two currency notes of Rs. 100/- total Rs. 200/- from his right flank pocket. He had sealed the case property in two separate parcels and then prepared such mashirnama in front of mashirs HC Allah Wadhayo and PC Ashique Ali and then obtained their signatures thereon. Thereafter, they returned back along with arrested accused and recovered case property to the P.S, where, he was booked in the instant case u/s 9 (c) Control of Narcotic Substances Act.

3. After that F.I.R was lodged and whole quantity of Chars was sent for chemical analysis. According to the report in this regard, the presence of the respective Narcotic Substance was proved. After codal formalities, charge sheet was presented against the present accused to face his trial.

4. On 29.04.2022, a formal charge against appellant/accused was framed and read over to him in Sindhi language at Ex.3, to which, he pleaded not guilty and claimed to be tried, vide his plea at Exh.4.

5. At trial, the prosecution has examined as many as four witnesses. The gist of evidence, adduced by the prosecution in support of its case, is as under:-

6. PW-1/complainant ASI Imtiaz Ali Soomro was examined at Exh.5, who produced attested copy of entry No. 17 at Exh. 5/A, Mashirnama of arrest of accused and recovery of Chars at Exh. 5/B and FIR at Exh. 5/C. PW-2 Mashir/HC Ashique Ali Kehar at Exh.06, he produced mashirnama of place of incident at Exh. 6/A. PW-3/IO S.I.P Zakir Hussain Abro at Ex. 07, he produced attested copy of entry No. 40 at Ex. 7/A, attested copy of entry No. 8 at Ex. 7/B, R.C No.19 was examined at Ex. 7/C and positive chemical report at Ex. 7/D. PW-4/WHC Altaf Ali Shah was examined at Ex. 08, he produced entry No. 280 of Register No. 19 at Ex. 8/A. Thereafter, side of the prosecution was closed by the learned DDPP for the State, vide his

statement at Exh. 09.

7. The statement of accused was recorded under section 342 Cr.P.C at Exh.10, wherein, he denied the prosecution allegation and stated that he has been falsely implicated in this case by foisting the Chars upon him and prayed for justice. Accused Zamir Hussain intended to examine himself on oath, so also D.W Mst. Noor Jehan, by taking plea that he was arrested by PC Ayaz Chandio of P.S Stuart Ganj about 7 days before registration of the FIR, when he along with his mother Noor Jahan and Mst. Umedan were going on Motorcycle towards Shikarpur city for purchasing household articles and it was about 5.00 p.m, when, said police officials had arrested him and demanded Rs. 3,00,000/- but on refusal, they had foisted Chars upon him. Per him, he was innocent and prayed for justice. He produced CTC of application submitted by his mother U/S 491 Cr.P.C against PC Ayaz Ali at Ex. 10/A.

8. On conclusion of trial, the learned trial Court found the appellant guilty of the offence charged with and, thus, convicted and sentenced him as stated in para-1 (supra), which necessitated the filing of the listed appeal.

9. The learned counsel for the appellant, after arguing the matter at some length, submits that he would not press this appeal on merits if the conviction and sentences awarded to the appellant are reduced to the period he has already undergone contending that the appellant has no previous criminal record in his credit, he is not a dangerous, desperate and hardened criminal as well as not a previous convict and served sufficient punishment and due to his confinement in jail his family members are passing a miserable life and that the appellant undertakes that he will prove himself as a law abiding citizen and will not indulge in any unlawful act in future.

10. On the other hand, the learned Additional P.G while supporting the impugned judgment has argued that prosecution has successfully proved its case against the appellant beyond reasonable shadow of doubt, therefore, the appeal merits no consideration and is liable to be dismissed. He, however, has not disputed the submission of learned counsel for the appellant with regard to conversion of sentence into the period already undergone and extended his no objection to that extent.

11. We have heard the learned counsel for the appellant and the learned Additional P.G for the State and gone through the entire material available before us with their able assistance.

12. A keen look of the record reveals all the prosecution witnesses while appearing before the learned trial Court have supported the case of the prosecution and involved the appellant in the commission of offence leaving no occasion for his false implication due to any ill-will or animosity. We are, thus, in agreement with the submission of learned Additional P.G that the prosecution has successfully proved its case against appellant beyond any reasonable shadow of doubt and the appeal merits no consideration.

13. Insofar as the submission of learned counsel for the appellant with regard to reduction of sentence into the period already undergone on the ground that the appellant is not a dangerous, desperate and hardened criminal as well as not a previous convict is concerned, suffice to observe that the appellant has served the sentence of 03 years, 01 months and 09 days and also earned remission of 07 years, 10 months and 09 days as on 25.03.2025 and as per jail roll. Total period he remained in jail including remission period is 10 years, 11 months and 18 days.

14. Per learned counsel the family of the appellant is passing a miserable life due to his confinement in jail. Needless to say that normally, it is very difficult for a family to survive without support of earning member of the family. The position, being so, would be nothing but causing misery to the family of the appellant on account of his act. The peculiar facts and circumstances, so pleaded by the counsel for the appellant, having gone unchallenged by prosecution may well be taken into consideration for departing from the normal practice. The appellant also undertakes that he will prove himself a law abiding citizen and will not indulge in any unlawful act in future. He is a first offender and has no previous criminal history in his credit and only earning member of his family as well as served a sufficient sentence, therefore, it would be appropriate that appellant may be given an opportunity to improve himself as a law abiding citizen.

15. It is, however, pertinent to note that awarding punishment is only meant to have a balance in the society because all the divine laws speak about hereafter. Thus, conceptually, punishment to an accused is awarded on the concept of retribution, deterrence or reformation so as to bring peace which could only be achieved either by keeping evils away (criminals inside jail) or strengthening the society by reforming the guilty. The law itself has categorized the offences. There are certain offences, the punishment whereof is with phrase “not less than” while there are other sentences which are with phrase “may extend upto”. Such difference itself is indicative that the Courts have to appreciate certain circumstances before setting quantum of punishment in later case which appear to be dealing with those offences, the guilty whereof may be given an opportunity of “reformation” by awarding less punishment which how low-so-ever, may be, will be legal. The concept of reformation should be given much weight because conviction normally does not punish the guilty only but whole of his family.

16. Keeping in view the above facts and circumstances of the case, we are of the considered view that prosecution has discharged its burden of proving the guilt of the appellant beyond reasonable shadow of doubt, thus the appeal, insofar as it impugns conviction, is dismissed on merits. However, while entertaining the plea that the appellant is sole bread earner of his family, who is passing a miserable life, and the appellant is not a previous convict, we find it a fit case for departure from the normal practice of determining quantum of sentence. Therefore, in our view it would serve both the purposes of deterrence and reformation, if the sentence is modified and reduced to one already undergone. Accordingly, the sentence awarded to the appellant through impugned judgment dated 15.11.2023 is modified and reduced to one already undergone, which also include the sentence awarded in lieu of fine. The appellant shall be released forthwith if not required to be detained in connection with any other criminal case.

17. The instant Criminal Appeal is disposed of with above modification.

Judge

Abdul Salam/P.A