M. Khurshid Vs The State

I

Judsment Sh eet

PESHAWAR HIGH CO URT ABB OTTABAD BENCH.

,1 UDIC 1,4 I, I )I|PAIIT MI|NT

Cr.A No.9 -A of 0 8

JIJDGMEN!

Date of hearinC ... . .. ... . .. , .. . ,. I 4. 1 2.20 18 ... ... Appellant...(Muhammad Khursheed) by Mr. Shahzad Ahmad Khan, Advocate ....

Respondent...(The State etc) by Sardar Muhammad lsif, Assistant lG SYED MUHAMAMI) ATTIOTJE SHAH. .I:-'l'his appcal is directcd under scction 410 Cr.l'}.C against the judgment dated 2810412018 passed by leamed Additional Sessions Judge-I Mansehra, whcrcby, the appcal filcd by thc appcllant against his conviclion ancl scntcncc awardcd to him by the lcamed Judicial Magistrate vidc judgmcnl datcd 23.04.2018 in case lrlli No. 176 datcd 2210412018 under Arriclcs 3/4 ol' Prohibition (Lnforcement ol lladd) Order, 1979, Policc Station Saddar, District Mansehra.

2.Facts lcading to the instant appeal are that on 22l\4l2\l8 a1 about l8:55 hours, complainanl Muhammacl Nasccm Khan, SI IO Policc Stalion Sad<Jar, Manschra, was on 'gusht' alongwith policc officials on llalakot I{oad, whcn he rcccived spy

inlormation about selling ol narcotics by a pcrson in 'Sanday Sar T,iarat'; that hc r.cachcd thc spor and lound a person sitting there in suspicious condition, who was overpowered by the police officials; that as a result of search, he was found in possession ol 720 grams'charas'kcpt in a shopping bag lying in his lup, who subscquently, discloscd his namc as Muhammad Khurshccd son of Muhammad Aslam.

'l'hc complainant scparatcd samplc o1'livc grams from the recovered contraband for chemical analysis and alrcsted the accused in the case.

3.After completion of investigation, challan was submitled in thc court of lcarncd Judicial Magistrate Ibr" trial. I Iowcvcr, thc appcllant submittcd an application, whcrcin, he has waivcd off his rights undcr Section 241-A CI.P,C. Accordingly, chargc was lramed to which the appellanl pleaded guilty and did not claim tria1, followcd by Show Cause Notice as providcd under section 243 CI.P.C, howcver, thc appcllant placcd himsclf at thc mcrcy of thc Court.

Conscclucntly, thc appcllant was convictcd and scntcnccd to onc month ur.rdcr Articlc 4 P'O, whilc, two months imprisonment and to pay a hne of

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I{s.2,000/- or in default thereof, he was sentcnced to undergo simple irnprisonmanl for 1 0 days, undcr Arricle 3 P.0., vide impugncd judgment datcd 2310412018. 'l'he said conviction was challenged by the appellant bclbre learned Additional Sessions Judgc-I, Mansehra, which was dismissed vide judgment dated28.04.2018, hence, thc instant appeal.

4.Argumcnts of the learned counsel for the parlics heard and pcruscd thc rccord with thcir valuable assistancc.

5.In this case, the appellant had admittcd his guilt qua selling and possessing 'charas'and declined 1o produce any evidence. It is a common practice that once a pcrson who is involved in a criminal case wanls to plead guilty to the chargc lcvelcd against him and placed hirnself'at thc mcrcy o1'thc Court and in that evcnluality he bccomc a liir:nd ol'thc Court and thc Courl always takes lenient vicw in respect of his scntence. Since the appcllant, in thc instant case, had straight away placcd himsclf at thc mcrcy of the trial Courl and plcadcd guilty, thcrcforc, thc lrial Courl has rightly takcn a lcnient vicw in respcct ol his scntcncc.

Iiuflhcrmorc, oncc thc appcllant plcads guilty undcr

scction 265-ll, Cr.l,.C, thcn l.rc is bancd undcr scction 4I 2, Cr.P.C. to challcngc his conviction and scntcncc by liling appcal. I Ic could only cirallcngc lhc cxtcnt or lcgality of thc scntence. There is no reason how, after submission of complete challan and appcarance in the trial Court, thc appellant could rcmain unawarc that if hc madc statcmcnt in thc Court in thc procccdings it could rcsuil in his conviction and scnlcncc on his own plca ol'guiltl'.

(r. Now thc mattcr which is to bc considcrcd by this Court is only the extent and lcgality of the scntcnce awarded to thc appellant by thc leamed trial Court. Whilc going through thc mcmo of appcal filcd by thc appcllant bclbrc thc lcamcd Appcllalc Cout, this Cou( notcs that thc appcllant has challcngcd thc cxtcnt and lcgality ol'thc scntcncc but in an implicd l1lanncf . 'l'hus, this Court considcrs that in pcculiar facts and circumstanccs of the present casc, cspocially, whcn thc appellant is first offcndcr, not prcvior.rsly convictcd and thc onh' brcad carncr ol'his l'amily, modcratc rcduction in thc quantum ol scntcncc would ccrtainly mccts thc inlcrcst o [' justicc.

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7.It rnay be mentionecl that though under section 41,2 Cr.P.C, appeal does not lie in case of plead guilty, cxccpt as to thc extent or lcgalily of the scnlcncc.

Ilowcvcr, thc appellant has lllcd appcal beforc the lcarncd Additional Sessions Judgc-1, Mansehra, which was disrnisscd bu1 again the appcllant has hlcd sccond appeal before this Court, which is not maintainable.

Ilowever, in the interest of justice, this appeal is convcrted into revision pctition under section 439 Cr.P.C.

8.Accordingly, for thc rcasons statcd hclcinabovc, this Courl while excrcising powcrs undcr section 439 read with scction 423 CI.P.C, partially allows the present revision petition in the manncr that thc conviction of the appellant t5 maintained, howcvcr, the scntcnce awarded to him in the prcscnt casc is modificd to the extent that the same is reduccd to the pcriod hc has alrcady undcrgonc.

Announced, /r///

JUD(;E

Dt.14.12.2018,

1*1454[6n1*/

(SU)Mr. Justicc Syed Muhamnrad Atliquc Shah