IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Criminal Appeal No. D- 22 of 2016
Mr. Justice Khadim Hussain M. Shaikh,
Mr. Justice Amjad Ali Sahito,
Appellant Abdul Farooque Arain, in person.
Respondent The State through Mr.Khadim Hussain Khoonharo, Additional Prosecutor General.
Date of hearing: 19.04.2018.
Date of Decision: 19.04.2018.
J U D G M E N T
Amjad Ali Sahito, J. - Through instant appeal, the appellant has impugned the judgment dated 28.03.2016 passed by learned Sessions Judge/ Special Judge C.N.S, Shikarpur, in special case No.1045 of 2014 re. Stat v. Abdul Razaque emanating from Crime No. 239 of 2014 registered at Police Station New Foujdari, Shikarpur for offence under Sections 9 (c) Control of Narcotic Substances Act, 1997 whereby the appellant was convicted and sentenced to suffer imprisonment for seven years and to pay fine of Rs.35,000/-. In default of payment of fine he shall undergo S.I. for six months more. The benefit of Section 382-B, Cr.P.C is extended to the appellant.
2. The prosecution in order to prove its case examined complainant SIP Sher Muhammad Shaikh at Exh.5, he produced mashirnama of arrest and recovery, FIR and true copies of departure/arrival entries at Exhs.5-A to 5-D respectively. P.W-2 SIO/IO Lal Bux Mangnejo as Exh.6, he produced memo of wardat, true copies of departure and arrival entries and report of Chemical Examiner as Exh.6/A to 6/C, PW.3 mashir/PC Kashif Ali was examined as Exh.7. Then the learned DDPP closed the side of prosecution vide statement as Exh.8.
3. The statement of the appellant under Section 342, Cr.P.C was recorded at Exh.9, to which he denied the allegations of prosecution and pleaded his innocence. After hearing arguments, learned trial Court awarded punishment to the appellant as above.
4. As per contention of the appellant, who has been produced in custody by jail authorities, as well as APG the appellant remained in jail for a period of 02 years and 07 months as UTP and after his conviction while unexpired portion of sentence including fine is 04 years 06 months and 24 days. The appellant prayed that a lenient view in the case be taken he would be satisfied if the sentence awarded to the appellant is reduced to that of sentence already undergone by him. Learned APG has recorded no objection.
5. In view of the above facts and circumstances, we are inclined to take a lenient view. The appellant is aged about 28 years of age and on queries he has disclosed that he has two minor children. He further disclosed that at the time of his arrest in this case, the ages of his children were 03 years and 02 months respectively. Perusal of jail roll of appellant shows that during his incarceration in jail his conduct was satisfactory as such he has earned remission of 09 months and 12 days. He is the first offender and there is no report regarding involvement of the appellant in any other criminal case. Accordingly, looking to the mitigating circumstances of the case, sentence awarded to the appellant is reduced to the period of his detention in jail, he has already undergone including the period for which the appellant was to undergo in lieu of fine. In view of above modification in the sentence of appellant, this appeal was dismissed by short order dated 19.04.2018 which reads as under:-
“Heard appellant Abdul Farooque son of Soonhara Khan Arain, who is produced in custody and learned Addl. PG for the State. For the reasons to follow, the appeal filed against the judgment dated 28.3.2016, passed by Sessions Judge/Special Judge C.N.S Shikarpur in Special Case No. 1045 of 2014, based on Crime No.239 of 2014, registered at Police Station New Foujdari under section 9 (c) of C.N.S Act, 1997 is dismissed on merits. However, the sentence of the appellant is modified and reduced to the period that he has already undergone which includes the period for which the appellant was to undergo in lieu of the fine. The appellant is directed to be released forthwith if his custody is not required in any other case”.
6. These are reasons for the same.
Abid H. Qazi/**