IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.589 of 2023

Present: Mr. Justice Omar Sial

Mr. Justice Shamsuddin Abbasi

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Appellant: The State/ANF through Mr. Habib Ahmed, Special Prosecutor ANF

Respondent: Afaaq Ali son of Ishtiaq, Ms. Rahat Ehsan, advocate for pauper respondent

Date of hearing: 01.04.2026

Date of Judgment: 23.04.2026

J U D G M E N T

SHAMSUDDIN ABBASI, J. --- This Criminal Appeal has been preferred by the appellant for enhancement of sentence awarded by the order dated 17.08.2023, passed by learned Special Judge, Court-I, CNS, Karachi in Special Case No.53/2023, whereby, in view of plea of guilt, Respondent No.2 was convicted for an offence under sections 6/9(1)3(c), 14, 15 of the CNS Act, 1997 and sentenced to suffer 3 years R.I. and to pay fine Rs.30,000/-, in default whereof to undergo S.I. for 3 months more, with benefit of section 382-B of Cr.PC, for the period which he has already undergone as under trial prisoner.

2. Facts of the prosecution case are that on 09.04.2023 at about 1045 p.m. to 1100 p.m., on spy information, ANF officials apprehended accused Ajmal Khan while he was on motorbike bearing Registration No. KLG-9818 whereas accused Afaque was sitting in Rickshaw bearing Registration No. D-16-11916 and IO recovered one packet of charas weighing 1200 grams from each accused and obtained 10 grams out of each packet as sample and sealed the same for chemical examination. Hence, subject FIR.

3. After completing all the formalities, report under section 173, Cr.P.C. was submitted before the trial Court and charge was framed on 17.08.2023 at Ex.3, to which the appellant pleaded guilty and has placed himself at the mercy of learned trial Court for taking a lenient view for awarding lesser punishment. On admission of guilt, the appellant was convicted by the trial Court and was convicted for offence under sections 6/9(1)3(c), 14, 15 of the CNS Act, 1997 and sentenced to suffer 3 years R.I. and to pay fine Rs.30,000/-, in default whereof to undergo S.I. for 3 months more. However, benefit of section 382-B of Cr.PC was extended to him. Being aggrieved, the State through ANF filed instant Criminal Appeal for enhancement of sentence against respondent No.2.

5. Notice was issued to respondent No.2 through District Jail Malir and counsel on State expenses has been provided to him on the ground that he is poor person and not in a position to engage a counsel on his own expenses, therefore, a counsel on State expenses has been provided to him to assist this Court.

6. It is inter alia contended by the learned Special Prosecutor for ANF that the impugned order is illegal, unlawful and contrary to law and has been passed in a hasty manner, without applying the judicial mind; that offence committed by the accused is heinous in nature and the learned trial Court while passing the impugned order has neglected/ignored the quantum of sentence provided for commission of offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 and the sentence is quite inappropriate and against the command of law. Moreover, the learned trial Court without considering the same has awarded lesser punishment to the accused, which is against the sentencing policy; that the trial Court has not followed the guideline provided in the case of Ghulam Murtaza and others. Lastly, he prayed for enhancement of the sentence.

7. Learned counsel for respondent No.2 Afaaq Ali contended that impugned order was passed in accordance with law; that respondent No.2 is first offender and there is no previous criminal record of appellant; that he is sole bread earner of his family and learned trial Court has rightly taken lenient view on humanitarian grounds, therefore, appeal for enhancement of sentence is not maintainable.

8. We have heard the learned Special Prosecutor for ANF as well as learned counsel for respondent No.2/accused and have gone through the material available on record.

9. In this case, the State/ANF made prayer through the instant Criminal Appeal regarding enhancement of the sentence of the respondent No.2. Perusal of record reveals that learned trial Court has awarded the sentence below the statutory minimum prescribed under the Control of Narcotic Substances Act, 1997. Learned trial Court, while recording lesser sentence from the statutory minimum has cited the case reported as PLD 2017 SC 671 (State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi), such practice is not only in conflict with the mandate of law but also reflects a misuse of judicial discretion, which undermines the deterrent purpose of the CNS Act. In the instant case, respondent No.2 has been found guilty of possessing contraband, in excess of one kilograms; evidence of recovery and forensic report is inexorably pointed upon his culpability. As per Section 9(3)(c) of the Control of Narcotic Substances (Amendment) Act, 2022, if quantity of charas exceeds 1000 grams to 4999 grams, the punishment provided may extend to fourteen years but shall not be less than nine years along with fine, which may be upto four hundred thousand rupees but not less than eighty thousand rupees. Lessor sentence awarded by learned trial Court is beyond jurisdiction, therefore, it is not sustainable. Magnanimity shown by learned trial Court being outside the remit of law merits recall. Reliance in this context is placed on the cases of 2019 SCMR 1122 (State through Director ANF Peshawar vs. Fakhar Zaman) 2019 SCMR 1288 (State through Director ANF Peshawar vs. Sohail Khan).

9. For the afore-stated reasons, instant appeal for enhancement of sentence awarded to accused/respondent No.2 Afaaq Ali son of Ishtiaq is allowed; impugned judgments to the extent of quantum of sentence is set aside and the appellant is sentenced to nine years with fine of Rs.80,000/- and in case of default in payment of fine, he shall suffer Imprisonment for 3 months more.

J U D G E

Gulsher/PS