' KHADIM HUSSAIN M. SHAIKH, J.---Appellant Muhammad Azeem through this Criminal Jail Appeal No,46 of 2006 has called in question the judgment dated 30-11-2005 passed by learned Court of Special Judge (C.N.S.), Sukkur in Special Case No,39/2003 re-State v. Muhammad Azeem Pathan, based upon Crime No,2/2003 of Police Station, Excise, Sukkur registered for offences under sections 6, 7 and 8 read with section 9(c), C.N.S. Act, 1997, whereby the appellant was convicted and was sentenced to suffer R.I. For ten years and to pay fine of Rs,25,000 and in default of payment of fine was further to suffer R.I. For six months. He was, however, given benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the prosecution case are that on 24-10-2003 the complainant namely Excise Inspector Attaullah Soomro accompanying his subordinate staff while was on checking duty on Shikarpur-Sukkur road at about 9 a.m. Stopped Bus bearing No, RPT 1776, near Manzoor Hotel in Dreha village, Taluka Sukkur and on checking the same he found appellant Muhammad Azeem sitting on seat No,10 with a white polythene shopper in his lap and he being suspect, was brought out from the Bus from his personal search cash amount of Rs,500 with a copy of the N.I.C. And one passenger ticket No,1802 of AlSaadat Air Conditional Coach, were secured from front pocket of his shirt, on checking the polythene shopper (bag) recovered from the appellant, the complainant party secured two white cloths packets containing heroin powder wrapped in polythene bags. The complainant then weighed the heroin powder and weight of each packet, was 1 Kg. The complainant separated 200 grams heroin from each packet and sealed the same in white papers as samples for chemical analysis and remaining heroin powder was sealed in separate wrappers and such mashirnama was prepared in presence of mashirs Hussain Bux and Abdul Ghani at the spot and then they brought the apprehended accused and heroin powder etc. At Excise Police Station, Sukkur where the above F.I.R. Was lodged.
3. After investigation challan was filed in the learned Court of Special Judge (C.N.S.), Sukkur against the appellant to stand his trial.
4. Formal charge under section 9(c), C.N.S. Act, 1997, was framed against the appellant Exh.4, to which, he pleaded not guilty and claimed to be tried vide his plea Exh.5.
5. At the trial prosecution examined complainant Excise Inspector Attaullah Soomro P.W. 1 Exh.
7. He produced mashirnama of arrest of appellant and recovery of heroin, cash and ticket etc. From his possession Exh.7/1, attested copies of entries Nos. 9359-60 of movement register pertaining to complainants departure from Excise Police Station and his return at Police Station Exh.7/2, F.I.R. Exh.7/3 and report of Chemcial examiner Exh.7/4, mashir Excise Inspector Hussain Bux P.W.2, who acted as mashir was examined Exh. 18 and then closed its side vide Exh.9.
6. Statement of accused was recorded under section 342, Cr.P.C. Vide Exh.10, wherein he denied the allegations and pleaded his innocence stating further that along with him his mother and his aunt were travelling with him in the same bus and while checking an Excise Police Officer secured one polythene bag beneath a seat of Bus and he enquired about its ownership from his mother and aunt and misbehaved with them, to which the appellant objected with the result he was implicated in this case. The appellant, however, did not examine himself on oath nor examined any other person in his defence.
7. After hearing the counsel for the accused, the learned trial Court found the appellant guilty and convicted and sentenced the appellant as discussed in para-1 supra.
8. Appellant being dissatisfied with the said judgment dated 30-11-2005 has filed the present criminal jail, appeal through Superintendent Central Prison-I, Sukkur.
9. At the very out-set, the learned Advocates for the appellant submitted that they do not dispute the conviction and do not press this appeal and pray that the sentence awarded to the appellant, may be reduced to that already undergone and the fine may also be reduced, per the learned counsel, the appellant is unable to pay the said fine amount of Rs,25, 000 in full. The learned counsel for the appellant further submit that the appellant was arrested on 24-10-2003 and since then he has all along remained in continuous custody till date and thereby he has remained in jail for more than seven and half years inclusive the remission extended to him, that the appellant is first offender and has responsibility towards his family members including his ailing mother and due to his detention his family members have been financially crippled, that the appellant learning a lesson has improved himself by realizing his mistake and he undertakes not to repeat such an offence in future as he wants to reform and rehabilitate himself as a respectable citizen, learned counsel have relied upon the cases of Nizamuddin v. The State 2007 SCM R 206, Muhammad Hashim v. The State PLD 2004 SC 856 and Amanat Ali v. The State 2008 SCM R 991.
10. The learned S.P.P. Appearing on behalf of the State states that the sentence awarded by learned trial Court to the appellant is on higher side and he concedes that the sentence of the appellant may be reduced to that he has already undergone and the fine may also be reduced.
11. We have heard the learned counsel for the appellant and have perused the jail roll and have also gone through the case-law.
12. Record reflects that the appellant is in custody since his arrest from 24-10-2003 till date. The appellant is stated to be a first offender and has shown his remorse and penitence as convict and since he has served substantive sentence of more than seven and half years including the remission, the appellant therefore, deserves leniency. In the similar circumstances, apex Court in the case of Nizamuddin (supra) reduced the sentence from ten years to six years awarded by the Trial Court to the petitioner from whom 5 Kg of heroin powder was recovered.
13. Following the dictum laid down by apex Court in the case of Nizamuddin (supra), we while dismissing the appeal as not pressed and by maintaining the conviction awarded to the appellant reduce the sentence of the appellant Muhammad Azeem from ten years to one already undergone and also reduce the fine from Rs,25, 000 to Rs, 5,000 and in default in payment of fine, the appellant has to undergo R.I. For one month instead of six months.