2023 PLP 875 (MLD)

KHADIM HUSSAIN TUNIO, J.

By means of this judgment, we intend to dispose of the above captioned criminal jail appeal, whereby the appellant has challenged the judgment dated 13.09.2018, passed by learned Sessions Judge/Special Judge CNS, Sukkur in Special Case No. 12 of 2013 Re: State v. Abdul Sattar, under section 9(c), CNS Act, 1997 outcome of FIR No. 01 of 2013 registered at Police Station ANF Sukkur, whereby the learned Sessions Judge/Special Judge CNS Sukkur convicted the appellant under section 9(c), CNS Act for recovery of 10 KGs of charas and sentenced him to suffer rigorous imprisonment for 12 years and 6 months and to pay fine of Rs.60,000/- and in case of failure in payment of fine, appellant was ordered to suffer S.I for 9 months more. Learned trial court also convicted the appellant under section 9(c), CNS Act for recovery of 10 KGs of opium and sentenced him to suffer R.I for 12 years and to pay fine of Rs.16000/-and in case of failure in payment of fine amount, appellant was ordered to suffer S.I for 8 months and 15 days more. Both the sentences were ordered to run concurrently. However, benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Briefly, facts of the present criminal jail appeal are that on 23.01.2013, the complainant SHO Inspector Ghulam Abbas of PS ANF, Sukkur received spy information regarding provincial smugglers namely Jannat Gul and Iftikhar would be transporting huge quantity of narcotics in Bedford Truck bearing No. C-2050, from Mardan to Sukkur via Shikarpur to deliver it to co-accused Abdul Majeed and they would pass from Naz bypass road Sukkur during the timeframe of 1600 to 1800 hours. A raiding party was constituted and at 1500 hours, they left PS ANF Sukkur in two official vehicles and proceeded to the pointed place. At 1615 hours, they spotted a truck coming their way and the spy confirmed it to be the same they were looking for, where after the truck was stopped and the driver and passenger were alighted from the same, asked for their names and inquired about the availability of narcotics. After avoiding the questions, they admitted to the availability of narcotics behind the driver seat in a secret compartment. They willingly took out two bags of contraband and handed it to the complainant, after checking the same from one, 10 multi-coloured foil packets containing charas were found whereas from the other, five packets of opium were found. The contraband was weighed separately and came out to be 10 kilograms of charas and 10 kilograms of opium. The truck was further searched and the bodily search of accused was also conducted. Thereafter, accused along with recovered property were brought to P.S ANF Sukkur where FIR was lodged.

3. After registration of FIR, the Investigation Officer conducted usual investigation, recorded 161, Cr.P.C. statements of P.Ws, inspected place of incident, prepared memo of arrest of accused, recovery and submitted challan after concluding the investigation.

4. At trial, prosecution examined complainant namely Ghulam Abbas and P.W PC Zaheer Ahmed, who produced numerous documents through their evidence. Thereafter prosecution side was closed.

5. Statement of accused under section 342, Cr.P.C. was recorded in which he denied all the allegations made against him by the prosecution and pleaded his innocence. However, he did not examine himself on oath in terms of section 340(2), Cr.P.C. to disprove the charge nor examined any witness in his defence.

6. After hearing learned counsel for respective parties, learned trial court convicted and sentenced the appellant as stated supra, hence this appeal.

7. Learned counsel for the appellant has argued that the alleged contraband was foisted upon the appellant; that the alleged contraband was not recovered from the exclusive possession of the appellant and in fact from a Secret compartment that he had no knowledge of the same; that all the witnesses are ANF officials and interested inter se. However, learned counsel for the appellant after arguing the case to an extent stated that he would be satisfied and will not argue the case on merits if the sentence awarded to the appellant is converted to one already undergone by him.

8. Learned Special Prosecutor ANF on the other hand opposed this plea raised by the counsel for appellant while placing his reliance on the case law reported as 2019 SCMR 1122 and 2019 SCMR 1095.

9. We have heard the learned counsel for the parties and perused the record carefully with their able assistance.

10. After a careful perusal of the evidence of witnesses, we have found that they have constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband. They are in comfortable unison on all the salient features regarding interception of the huge quantity of Chars and Opium as well as all the steps taken subsequently. The whole case property was sealed and sent to the Chemical Examiner, which is found by us being exercise more than sufficient to constitute forensic proof. At the time of his arrest, the appellant was driving the truck from wherein he produced the two bags containing the contraband, therefore he was responsible for the said narcotics alleged to have been secured from the truck. We have also examined the report of Chemical Examiner available on the record as Ex. 7-D and have also found that it fully corroborates the evidence of both the witnesses, whose stand is in nexus with the chemical examiner's report. Reliance in this respect can be placed on the case of Mushtaq Ahmed v. The State and another (2020 SCMR 474) (Criminal Petition No.370 of 2019), vide judgment dated 09.01.2020 and Judgment dated 03.03.2020 in Jail Petition No.712 of 2018 (Re: Zahid and Riaz Ali v. The State) (2020 SCMR 590).

11. Now coming to the plea raised by the counsel for appellant regarding reduction of sentence of the appellant. Trial court had awarded an already undergone sentence to co-accused Shahab Ali son of Malik Aman by caste Yousufzai, who had committed the same offence as committed by the present appellant, while deciding Special Case No.13 of 2013, Re: State v. Shahab Ali (juvenile offender) vide judgment dated 13.9.2018, as he was not found being involved in narcotic case prior to that and after his arrest in the aforementioned case on 23.1.2013, for a period of more than five years, he remained in custody and faced trial, therefore, lenient view was taken by the learned trial court. Furthermore, the trial court had already acquitted the co-accused Abdul Majeed while extending benefit of doubt on the basis of same set of evidence through impugned judgment. It is a matter of record that the appellant is a first offender and does not have a previous criminal record. He is the sole bread earner of a huge family and is of old age. His conduct in jail has also been satisfactory as per jail authorities. We are of the considered view that the lesser punishment to the appellant is sufficient for a first-offender. Moreover, the appellant appears to be remorseful of his past and has shown willingness for improvement. It is a well-established principle of law that in special circumstances, the Court at its discretion can divert from the norms and standards prescribed in terms of sentencing after assigning cogent reasons. In this respect, reliance is placed on the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi (PLD 2017 SC 671) wherein it has been held that:- "The exercise of jurisdiction and discretion in the matter of the respondent's sentence by the trial court and the High Court have not been found by us to be open to any legitimate exception, particularly when the reasons recorded for passing a reduced sentence against the respondent and for making a departure from the above mentioned sentencing guidelines have been found by us to be proper in the peculiar circumstances of this case."

12. The above dictum was originally established in the case titled as Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) wherein it has been held that:- "

10. It goes without saying that in a particular case carrying some special features relevant to the matter of sentence a court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure." The Hon'ble apex Court has also been pleased to reduce sentence in cases of similar nature reported as Sherzada v. The State (1993 SCMR 149) and Gul Badshah v. The State (2011 SCMR 984).

14. Per the jail roll of the appellant dated 31.08.2020, he has served out a sentence of 7 years, 7 months and 8 days while subsequently earned a remission of 3 years. The appellant was awarded a sentence of twelve and half and twelve years. The unexpired portion, therefore of the appellant's sentence from the above date would be almost one year and ten months, excluding fine sentence. The backdrop of the above discussion is that since the prosecution has proven its case against the appellant, therefore, this criminal jail appeal is dismissed on merits, however this Court is at the liberty to use its discretion while determining the quantum of sentence. While exercising that discretion, sentences of the appellant are reduced from twelve years and six months and twelve years to one already undergone by him. The fine amount however is maintained, in default of which he shall suffer simple imprisonment as ordered by the trial Court in the impugned judgment.

15. The appeal stands dismissed with the above modification in the sentences. JK/A-17/Sindh Order accordingly.