' SALMAN HAMID, J.---Via captioned Criminal Appeal filed under section 48 of the Control of Narcotic Substances Act 1997 (1997 Act) Muhammad Arshad Hussain alia Gul Khan, (the Appellant) has challenged the judgment dated 21-3-2000, handed down by the Special Judge-II, CNS, Karachi, whereby he (Appellant) was sentenced to serve rigorous imprisonment of seven years and was also fined to the extent of Rs.100,000 and in failure to make payment to undergo further simple imprisonment of six months. The appellant was also extended the benefit of section 382(b)
Criminal Procedure Code for offence punishable under section 9(c) of 1997 Act as mentioned in Crime Case No.4 of 2009 of Police Station Garden, Karachi.
2. Learned counsel for the appellant at the very outset implored that he does not wish to press the Appeal on merits and prayed that the impugned sentence and fine be reduced to that already undergone by the Appellant. In support of his arguments regarding undergoing of sentence and/or its reduction to the one already undergone relied upon Raees Khan Jadoon v. The State (2010 YLR 3240), Niazuddin v. The State (2007 SCMR 206), Muhammad Iqbal v. The Province of Sindh (PLD 2011 Karachi 32) and Sajid Hussain v. The State (2010 YLR 2170). It was asserted all the precedents, cited related to heroin. It was also urged that since the quantity was less (1100 grams) and also the fact that there was no criminal record of the appellant and he was first offender and is the only bread winner of his family be released on the sentence already undergone by him as such being mitigating circumstances.
3. On the other hand the learned A.P.-G. Resisted and opposed the Appeal. It was argued that despite quantity of heroine recovered was substantial, the court below had already sentenced the appellant to the minimal and no further benefit could be given. It was also argued that F.I.Rs. Had been filed against the appellant; thus the urging of the appellant that no other criminal case was pending and/or he was a first offender was refuted.
4. We have heard arguments of the counsel and also looked into the cited precedents relied upon by the learned counsel for the Appellant. In the case of Raees Khan Jadoon, a single Judge of this court ordered release of the convict therein forthwith if he was not required in any other case when it was appreciated that according to the jail roll out of total sentence of seven years and three months, including fine the convict on the date of decision of such case had already undergone/served out sentence of four years eleven months and three days, which included remission of two years eleven months and twenty six days and unexpired portion of sentence of such convict came to two years three months and twenty seven days and since in that case the convict was found to be a first offender and was stated to be the sole bread earner of his family, despite the fact that heroine weighing 4.5 kilo grams had been recovered from him, he was released. In the case of Muhammad Iqbal, a division of this court released the convict therein who was sentenced to imprisonment for life abroad and upon his transfer from abroad to Pakistan he (convict) claimed various remissions as applicable under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, special remission awarded by Inspector-General, Prisons under Rule 216 of Pakistan Prison Rules and special remission awarded by Superintendent Jail again under Rule 216 of Pakistan Prison Rules and remission applicable under Rule 204, the total of which came to five years, five months and seven days and thereafter he further earned remission of eight months twenty days. In all the convict in the precedent under discussion served sentence of a period of six years one month twenty seven days and his unexpired portion of sentence remained eighteen years, ten months and three days per jail roll submitted in his case. In the precedent it was observed by the division bench of this court that since the convict therein was convicted for trafficking 2700 grams of heroine and charged with possession thereof and was, convicted and was consequently remained abroad (Sri Lankan Jail) and was thereafter repatriated in Pakistan and if he would have had served the above term (six years one month twenty seven days) of sentence in Pakistan he would have earned at least normal remission commensurate more or less with the remission earned by him in Pakistan and therefore, he was released for the sentence he had already undergone. In the case of Shahid Hussain, again a division bench of this court treated the sentence of rigorous imprisonment of ten years with the one already undergone by the convict which till date was seven years and six months, inclusive of the remission. In this reported case one kilogram of heroine powder was recovered. In the case of Niazuddin, the apex court reduced the sentence of the appellant therein from ten to six years in though he was found to be in.Possession of five kilograms of heroine.
5. Gauging the Appeal, by the above precedents and also the fact that a substantial part of the sentence has been undergone by the appellant and that only a small part thereof is left to be undergone and also the fact that the appellant is a first offender inasmuch as despite the allegation of the learned A.P.-G. That F.I.Rs. And/or criminal cases are pending nothing was brought on record and that such was also not reflected in the F.I.R. Or even in the judgment impugned in the Appeal while we dismiss the appeal but are persuaded to reduce the sentence of the appellant from seven years to the one already undergone by him which according to the jail roll dated 26-7- 2011 come to four years nine months and two days. The fine imposed shall remain untouched and in failure to make payment thereof the simple imprisonment of six months shall be undergone by the appellant.
6. Subject to the above, the appellant be released forthwith provided, however he is not required in any other case.