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Criminal Appeal No.126 of 1981, decided on 6th February, 1986.

---S.497--Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.11--Sentence--Appeal not pressed on merits but prayer made for reduction of sentence awarded to accused--Accused dragged in litigation for more than five years and suffered agony of protracted trial with all its disadvantages and difficulties during all these years--Accused also remained in jail for nearly two months--Sentence reduced to one already undergone.

Jalaluddin Baloch for Appellant.

Rashid Tariq for the State.

Date of hearing: 3rd February, 1986.

This appeal is directed against the judgment of IXth, additional Sessions Judge, Karachi dated 1-6-1981 whereby the appellant Allah Bux was convicted under section 11 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said order) and sentenced to R.I. for three years and whipping, for 30 stripes.

The prosecution case is that on 15-2-1980 at 11-15 p.m. the two constables, Muhammad Sarfaraz and Anwar Ali Shah of Napier Police Station were on patrol duty when in front of Khatri Jamat Khana on Japani Road they came across accused Allah Bux who was in state of intoxication and was raising cries and abusing people. The said constables caught hold of the accused with assistance of Allah Wassayo and Muhammad Siddiq. In their presence his personal search was taken and one wrist watch and one cigarette lighter were secured from his possession. He was then taken to police station where the head constable on duty forwarded him to Civil Hospital for examination. After receipt of the certificate from the medical officer that the accused was under the influence of alcohol and was unable to control himself and take care of himself, he was put under arrest and F.I. R. was registered. After completing the usual formalities the accused was sent up to face his trial in the Court.

In support of the prosecution besides two police constables mentioned above, mashir Allah Wasayo, M.O. Muhammad Taqi Khan and I.O. Nusrat Ali Khan were examined. It is proved from the evidence of the two constables and the mashir that the accused was found crying and abusing when he was caught by the said constables.

They have further stated that he was found under the influence of alcohol. Their evidence is supported by the Doctor who opined that because of the influence of alcohol the accused was unable to control himself and take care of himself.

The learned counsel for the appellant also does not challenge their evidence. Accordingly he does not press the appeal on merits. However, he prays for reduction in the sentence awarded to the accused. According to him the accused has suffered for more than five years in the case and moreover the learned trial Judge has awarded him the maximum imprisonment of three years prescribed for the offence under section 11 besides awarding him the punishment of whipping. In his opinion, punishment awarded to the accused is too harsh.

The learned State Counsel supports the arguments of the learned counsel for the appellant inasmuch as that this is a fit case in which sentence be reduced. I am also of the view that in the circumstances of the case, the sentence awarded to the accused calls for modification. Admittedly the accused has been dragged in litigation for more than five years and thereby he suffered the agony of protracted trial with all disadvantages and difficulties for all these years. He has also remained in jail for nearly two months. In a case like this in which maximum punishment is three years, the punishment already undergone by the accused is more than enough. Accordingly the sentence awarded to the accused is substituted by only the imprisonment the accused has already undergone. With this modification in the sentence, the appeal is dismissed.

M.Y.H./A-108/K Appeal dismissed.

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