' ASIF SAEED KHAN KHOSA, J.---Asmat Ullah alias Billa Pathan appellant was convicted for an offence under section 6 read with section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment, dated 23-10-2002 rendered by a learned Additional Sessions Judge, Lahore and was sentenced to rigorous imprisonment for eight years and a fine of Rs,50,000 or in default of payment thereof to undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal.
2. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.
3. At the outset the learned counsel for the appellant has pointed out that a sample of only 10 grams out of the recovered substance had been sent to the Chemical Examiner for analysis and there is no proof available in this case regarding the remaining substance recovered from the appellant's possession to be narcotic substance. In that backdrop the learned counsel for the appellant has submitted that he shall be satisfied if the appellant's conviction is converted into one under section 9(a) of the Control of Narcotic Substances Act, 1997 and his sentence is reduced accordingly. In the peculiar circumstances of this case the learned counsel for the State has not opposed this submission of the learned counsel for the appellant.
4. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by us that Muhammad Nawaz, A.S.I. (P.W.4) had acknowledged before the learned trial Court in so many words that at the time of its recovery from the appellant's possession charas was in the form of various pieces and a sample of that charas was taken only from one such recovered piece. There is nothing available on the record to establish as to what was the weight of the piece of charas out of which the said sample had been taken. The sample sent to the Chemical Examiner for analysis weighed only 10 grams. In the cases of Muhammad Hashim v. The State PLD 2004 SC 856, Arif Ullah v. The State 2005 PCr.LJ 1173 and Jangrez Khan v. The State 2005 PCr.LJ 1506, it has already been held that if the recovered substance is in the shape of various pieces and if a sample is taken only from one such recovered piece then conviction of the accused person can be recorded only in respect of the weight of the piece from which such sample is taken. In the case in hand even the weight of the piece from which the sample had been taken is not discernible and, thus, we are left with no other option but to convict and sentence the appellant only for the quantity of narcotic substance which had been sent to the Chemical Examiner for analysis. In this view of the matter this appeal is partly allowed, the conviction of the appellant recorded by the learned trial Court for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 is set aside and the same is converted into a conviction for an offence under section 9(a) of the Control of Narcotic Substances Act, 1997 and the sentence of imprisonment passed against the appellant by the learned trial Court is reduced to that already undergone by him. We have been informed that the appellant had already spent more than two years in jail at the time of suspension of his sentence by this Court during the pendency of this appeal. An offence under section 9(a) of the Control of Narcotic Substances Act, 1997 carries a maximum sentence of two years' imprisonment. As the appellant has already served out more than two years' sentence of imprisonment, therefore, we have felt persuaded to set aside his sentence of fine so as to meet the ends of justice and it is ordered accordingly. The appellant has already been released from the jail on account of suspension of his sentence by this Court during the pendency of this appeal. His bail bond and surety shall stand discharged.