IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

     Cr. Appeal No.D-230 of 2011

JUDGMENT SHEET

                   PRESENT: JUSTICE NISAR MUHAMMAD SHAIKH J.

                                      JUSTICE SALAHUDDIN PANHWAR J.

For hearing of MA 6516/2012.

Date of hearing      25.10.2012.

Date of Judgment   25.10.2012.

Appellant:              Ali Murad Brohi through Mrs. Irum Anwar Advocate

Respondent:          The State through Syed Meeral Shah  Deputy Prosecutor

General Sindh.

J U D G M E N T

NISAR MUHAMMAD SHAIKH J: This appeal filed by the appellant Ali Murad is directed against impugned Judgment 06.07.2011 passed by the learned Special Judge under Control of Narcotic Substances Act, Hyderabad, in Spl. Case No.25/2008, whereby the appellant was convicted for the offence punishable u/s 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for five years and pay fine of Rs.50,000/- and in case of default whereof to suffer R.I for one month more, in crime No.03/2008 of P.S. Excise DIB Branch Hyderabad under section 9(c) of Control of Narcotic Substances Act, 1997.

2.                 During course of arguments on application under section  426 Cr. P.C (M.A 6516 of 2012), learned counsel for the appellant referred the cases reported as P L D 2012 SC 380, P L D 2004  SC  856,  2008 S C M R  660, 2010 P Cr. L J 1728  and  1990 S C M R 2589 and  submits that    though   this   is  a  fit case for  acquittal  of   the   appellant,  yet   the

appellant would be satisfied if the conviction is maintained and sentence awarded to the appellant is converted to one already undergone by him.

3.       Learned Deputy Prosecutor General Sindh appearing for the State submits that in view of the evidence available on record, he concedes to the request made by learned counsel for the appellant for reduction in sentence.

4.       Perusal of record shows that five packets of charas weighing one Kilogram each were recovered from the possession of the appellant Ali Murad by Excise Police and each packet contained four patties of charas weighing 250 grams each. The deposition of mashir Habibullah Excise constable is that 10 grams was separated from one pati taken from each packet. Since there were total five packets, therefore, as per evidence of the mashir, five patties, one from each packet, were  taken and out of these five patties 10 grams from each was taken out and accordingly total 50 grams of charas from five patties weighing total 1250 grams, was sent for chemical examination.

5.       Report of Chemical Examiner also shows that net weight of each parcel was 10 grams and thus there was total 50 grams in five parcels containing  the charas.

6.       In view of the law laid down in case of Ameer Zaib Vs. The State (PLD 2012 SC 380), the appellant would be liable for narcotic substance to the extent of five patties out of which 10 grams from each pati was separated for chemical examination and the total weight of five patties, as per evidence on record, is 1250 grams only.

7.       Learned counsel for the appellant together with her statement also files certified copies of Judgments in four cases registered against the appellant under Control of Narcotic Substances Act and submits that the appellant, on account of ulterior motives of the police party is being implicated falsely and out total eight cases, he has been acquitted in seven cases including four cases falling under Control of Narcotic Substances Act, therefore, his present case is also the result of such activities of police and as such the appellant is entitled atleast for concession in this case.

8.       The Jail roll submitted by the Jail Superintendent, shows that appellant was awarded conviction for 05 years RI with fine of Rs.50,000/- and in default thereof, to suffer imprisonment for one month more. The Jail roll further shows that the appellant has served sentence of 02 years, 08 months and 18 days till 20.10.2012 and he has also earned remissions of 01 year, 05 months and 25 days and only 10 months and 17 days with fine, remained on 20.10.2012 to be served out by the appellant.

9.       Considering the facts and circumstances of this case and in view of no objection of learned Deputy Prosecutor General, the conviction awarded to the appellant is maintained, however, the sentence awarded to him including the fine is hereby reduced to one already undergone by him till today.

10.     The appeal stands dismissed, with the above modification in the sentence.

11.     The appellant, who is present in custody, shall be released forthwith by the Jail Authority,  if he is not required in any other case.

                                                                             JUDGE

                                                JUDGE    

A.K