2011 SCMR 965 (PLP)

ZIA PERWEZ, J.

This Criminal Petition for Leave to Appeal is directed against the impugned judgment dated 26-11-2008 in Criminal Appeal No. D-258 of 2006, whereby, a learned Division Bench of High Court of Sindh, Circuit Court, Hyderabad, while upholding the judgment of learned Special Judge, Control of Narcotic Substances, Hyderabad in Special Case No. 47 of 2005 and sentence of the petitioner to suffer imprisonment for 14 years with fine of Rs. 5,00,000 or in default to suffer six months more imprisonment, dismissed the appeal preferred by the petitioner.

2. The facts of the case are that on 15-6-2005, Excise Inspector Saleemullah of Divisional Intelligence Branch, -Hyderabad along with his subordinate staff in pursuance M. an Entry No. 44 at the police station conducted checking of vehicles at Kotri. They intercepted a Suzuki Van at about 7-00 p.m. and recovered one white coloured ragzine bag from the possession of the present petitioner containing five slabs of charas wrapped in newspaper in addition to cash of Rs.

250. Samples weighing 10 grains each were drawn from all the slabs, which were sealed and forwarded for Chemical Examination. The Chemical Examiner's Report was positive and confirmed the contents of the parcels were charas. After usual investigation and registration of the case, the petitioner was tried. He was convicted and sentenced by the learned trial Court as stated above. His appeal before the learned High Court was also dismissed. Hence, this petition for leave to appeal.

3. On the petition, coming up before this Court Mr. Mahmood A. Qureshi, learned Advocate Supreme Court for the petitioner stated that he would not press the petition on merits, however, his only grievance is with regard to the quantum of sentence of the petitioner. Accordingly, notice was issued to the Prosecutor-General. Mr. Mahmood A. Qureshi, learned Advocate Supreme Court for the petitioner in support of his contentions that the petitioner was a first time offender and not a hardened criminal placed reliance on the case of Niazud Din v. The State (2007 SCMR 206) wherein on recovery of quantity of 5 kilograms heroin, the quantum of sentence was reduced from 10 years to six years R.I. by a Bench of this court. Mr. Shahadat Awan, learned Prosecutor-General in view of the facts that the present petitioner is a first time offender and not habitual criminal conceded to the reduction of sentence.

4. After perusal of the record in the light of the arguments advanced before us, it appears that there is no previous record of the conviction of the petitioner in any offence. The recovery effected is charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view.

5. For the foregoing reasons, while converting this petition into appeal, we allow the same partly. The sentence and conviction of the appellant is reduced to five years' R.I. with benefit of section 382-B, Cr.P.C. and with fine of Rs. 250,000 (Rupees two lac and fifty thousands) in default of payment of fine the appellant shall undergo further S.I. six months. H.B.T./A-10/SC Order accordingly.