IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.635 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

Respondents 2 & 3: Zakir son of Satim Khan and Umar Wahid son of Ajram Khan through Mr. Ajab Khan Khattak, advocate

Date of hearing: 29.04.2026

Date of Judgment: 04.05.2026

J U D G M E N T

SHAMSUDDIN ABBASI, J. --- This Criminal Appeal has been preferred by the Appellant/State for enhancement of sentence awarded vide order dated 21.09.2023, passed by learned Special Judge, Court-I, CNS, Karachi in Special Case No.426/2016, whereby, in view of plea of guilt, Respondents 2 and 3 were convicted for offence under sections 6/9(c), 14, 15 of the CNS Act, 1997 and sentenced to suffer the term of R.I. for 17 years and to pay fine Rs.100,000/- each, in default whereof to undergo S.I. for 8 months each, with benefit of section 382-B, Cr.PC for the period which they have already undergone as under trial prisoners in aforesaid case.

2. Briefly the facts of the prosecution case are that on 02.09.2016 at 1400 hours, complainant on the pointation of spy informer stopped Trailer No.SMA-164, apprehended accused Zakir and Umar Wahid, who disclosed availability of narcotics in secret cavities inside diesel tank, wherefrom 170 packets of charas in the shape of slabs wrapped in yellow solution tape were recovered, total weight of 170 packets become 204 Kilograms, hence the subject FIR.

3. After completing all the formalities, report under section 173, Cr.PC was submitted before the trial Court and charge was framed on 11.08.2017 at Ex.3, to which appellants pleaded not guilty and claimed to be tried.

4. After framing of charge, respondents 2 and 3 filed application for pleading guilty before learned trial Court, placing themselves at the mercy of the learned trial Court with a request while awarding sentence a lenient view may be taken, such application was taken on record at Ex.10; show cause notice was issued to respondents by learned trial Court at Ex.11, to which respondents submitted reply at Ex.12. Learned SPP seriously opposed the contention of leniency by contending that accused are involved in a heinous offence, a huge quantity of charas have been recovered from their possession and such offence is against the society; that the case is at the verge of conclusion, as such, no leniency can be granted to accused. However, learned trial Court, after hearing the accused/respondents as well as learned S.P.P. convicted the appellants for offence under sections 6/9(c), 14, 15 of the CNS Act, 1997 and sentenced them to suffer the term of R.I. for 17 years and to pay fine Rs.100,000/- each, in default whereof to undergo S.I. for 8 months each, with benefit of section 382-B, Cr.PC, for the period which they have already undergone as under trial prisoners. Being aggrieved, the State through ANF filed instant Criminal Appeal for enhancement of sentence against respondents 2 and 3.

5. Notice was issued to respondents 2 and 3 through Superintendent, District Jail Malir, where they were confined and on their request, services of advocate for pauper respondents was provided to them on State expenses to assist the 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, a huge quantity of charas weighing 204 kilograms has been recovered from their possession 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; that in Ghulam Murtaza case, reported as PLD 2009 Lahore 362, punishment for offence involving quantity of narcotics more than 10 Kg. is provided as life imprisonment or death penalty, with fine of Rs.100,000/- but the learned trial Court without considering the same has awarded lesser punishment to 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 respondents 2 and 3 Zakir and Abdul Wahid contended that impugned order was passed in accordance with law; that respondents 2 and 3 are first offenders and there is no previous criminal record of appellants; that they are sole bread earners of their families, they have pleaded guilty and placed them at the mercy of learned trial Court for taking a lenient view while awarding sentence to them in the instant case and the learned trial Court has rightly taken lenient view on humanitarian grounds and convicted and sentences the appellants as stated above, therefore, the instant appeal for enhancement of sentence is not maintainable and the same may be dismissed. However, he sought time to provide relevant case law, by the close of Court hours tomorrow i.e. 30.04.2026 but the learned counsel for appellant has never turned up to place on record any case law.

8. We have heard the learned Special Prosecutor for ANF, learned counsel for respondents 2 and 3 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 sentence of respondents 2 and 3. Perusal of record reveals that learned trial Court has awarded the sentence below the statutory minimum period prescribed under the Control of Narcotic Substances Act, 1997. Learned trial Court, while recording lesser sentence from the statutory minimum period 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 reflects a misuse of judicial discretion, which undermines the deterrent purpose of the CNS Act. In the instant case, respondents 2 and 3 have been found guilty of possessing charas weighing 204 kilograms, which is in excess of ten kilograms; evidence of recovery and forensic report is inexorably pointed upon their culpability. Prosecution examined all the material witnesses and after recording the statements of appellants under section 342, Cr.PC, they pleaded guilty. Learned trial Court had issued show cause notice to them as to why the maximum punishment under Section 6/9(c), 14, 15 of the Control of Narcotic Substances Act, 1997 shall not be awarded to them and they filed reply to the show cause notice with the admission of their guilt. We cannot ignore the fact that a huge quantity of narcotics was recovered from the possession of respondents 2 and 3 thus, in such circumstances, they were liable to be sentenced to imprisonment for life, with fine of rupees eight hundred thousand and in case of default of payment of fine, he shall suffer S.I. for one year more. 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).

10. For the afore-stated reasons, instant appeal for enhancement of sentence awarded to accused/respondents 2 and 3 Zakir and Umar Wahid is allowed; impugned order to the extent of quantum of sentence is set aside and the appellants are sentenced to Imprisonment for life. However, fine amount and imprisonment in default whereof shall remain intact.

J U D G E

Gulsher/PS