2014 P Cr (PLP)

AFTAB AHMED GORAR, J.

Having been found guilty of possessing 225 kilograms of charas, the Sessions Judge/Special Court (CNS), Jacobabad, by his judgment dated 4-8-2009, sentenced the appellant to undergo imprisonment for life and pay fine of Rs.100,000 and in default of payment of fine to undergo simple imprisonment for six months more.

2. Briefly, the facts of the prosecution case are that on 29-7-2008, at "Khokhar Laro", SIP Shahnawaz Khoso intercepted the Truck bearing registration No.TKE-/Quetta-311, going towards Shahdadkot side and recovered 225 kilograms of charas in shape of 123 slabs from the secret box in the bottom of the said truck and 97 slabs from the secret box above the driver's seat. The appellant was said to be driving the said truck.

3. On refusal of the accused to accept the charge, the learned trial Court proceeded with trial of the case, during which the prosecution examined mashir ASI Fayaz Hussain at Exh.7, SIP Abdullah Awan at Exh.8, complainant SIP Shahnawaz Khoso at Exh.9 and SIP Leemon Khan at Exh.10. The trial Court, on the basis of evidence of these witnesses found the appellant guilty and sentenced him as above.

4. Learned counsel for the appellant, at the very outset, without arguing the appeal on merits, requested that he would not press the appeal against conviction if the sentence awarded to the appellant is reduced to the period which he has already undergone. Learned counsel placed reliance upon the precedents of Ghulam Murtaza v. The State, report in PLD 2009 Lahore 362, Ameer Zeb v. The State, reported in PLD 2012 SC 380 and Sher Khan v. The State, 2013 MLD 1512 (Sindh).

5. Learned Assistant Prosecutor-General conceded to the request made by learned counsel for the appellant, particularly, in view of the fact that at the time of commission of the alleged offence the appellant was juvenile and he has remained in jail including remissions for pretty long time.

6. It is an admitted fact that the appellant at the time of commission of the offence was of tender age, therefore, he was tried under the provisions of Juvenile Justice System Ordinance, 2000. However, so far the quantum of sentence/imprisonment is concerned, the same was inflicted to the appellant in the light of huge quantity of contraband material recovered from the truck, which the appellant was allegedly driving.

7. It may be observed here that the punishment must be purposeful. No kind of satisfaction can be had by inflicting punishment without purpose. Under the law, there are three purposes of punishment i.e., retributive, preventive and reformative. It appears that the appellant, who at the time of commission of offence was a young boy, had indulged himself in the crime under some misguidance and temptation. The fact with regard to age of the appellant has been borne out from the record, which shows that as per school leaving certificate of the appellant issued by the Head Master, Govt. Special High School, Dera Murad Jamali, District Nasirabad, Balochistan, the date of birth of the appellant was shown as 15-7-1994, hence his age at the time of commission of the offence was about 14 years, while as per opinion of the Medical Board furnished by the Medical Superintendent, Chandka Medical College Hospital, Larkana, vide his letter dated 18-11-2008, the age of the appellant at the relevant time was declared to be about 17 years. According to the jail roll dated 15-1-2014, the appellant has served more than 15 years of sentence including the remissions. The appellant, by committing the offence, apparently has also not gained any monetary benefit.

8. In the case of Niazuddin v. The State, reported in 2007 SCMR 206, the Hon'ble Supreme Court was pleased to reduce the sentence of imprisonment for ten years awarded for possessing five kilograms of heroin to imprisonment for six years. There is lot of difference between charas and heroin with reference to their injurious effect on health and monetary benefit to the persons trafficking in the business. Moreover, in the case of Ghulam Murtaza (supra) relied upon by the learned Counsel for the appellant, the Lahore High Court has provided the formula of punishment vis-a-vis quantity of narcotic material and that judgment has been approved by the Hon'ble Supreme Court of Pakistan in the case of Ameer Zeb (supra). Record reveals that out of the total recovery, 2000 grams of charas were sent for chemical examination and if the formula of punishment provided in the case of Ghulam Murtaza (supra) is followed/applied, which has been duly approved by the Hon'ble Supreme Court in the case of Ameer Zeb (supra), the maximum sentence to be attracted against the appellant would be R.I. for 4 years and 6 months, and fine of Rs.20,000 or in default SI for 5 months.

9. In our opinion, the appellant, who was of tender having no previous criminal record, has already suffered adequate punishment. Accordingly, in the light of judgment of the Lahore High Court in the case of Ghulam Murtaza and the judgment of the Hon'ble Supreme Court in the case of Ameer Zeb (supra), while maintaining the conviction awarded by the trial Court in the instant case, the sentence awarded to the appellant is altered to the imprisonment which he has already undergone. The sentence of fine is also remitted in the circumstances. The appellant may be released immediately if he is not required to be detained in any other case.

10. With the above modification in the sentence, this appeal stands dismissed. HBT/M-30/Sindh Sentence altered.