' SHEIKH AZMAT SAEED, J.---This order shall dispose ofCriminal Appeal 939 of 2003 having arisen from the judgment, dated 11-4-2003, whereby the learned Additional Sessions Judge Sialkot convicted and sentenced the appellant to undergo R.I. For 7 years and fine of Rs,50,000, or in default thereof, to further suffer S.-I. For one year for the commission of offence under section 9-C of the Control of Narcotic Substances Act, 1997, vide F.I.R. No, 147, dated 13-5-2001 registered with Police Station Nekapura District Sialkot under section 9-C of C.N.S.A., 1997. The Benefit of section 382-B, Cr.P.C. Was extended and the sentence ibid were ordered to run concurrently.
2. F.I.R. No,147 was recorded at the Police Station on 13-5-2001 on the basis of complaint Exh.PD drafted by Sana Ullah Sub-Inspector, which discloses that on 13-5-2001, complainant along with other police functionaries was present in Muhallah Habib Pura in connection with the investigation of case F.I.R. No,146, dated 13-5-2001 under section 3/4 of the Prohibition when Muhammad Javed son of Allah Ditta had disclosed that he along with his brother Nasir Mehmood (appellant herein) were selling the liquor and Charas, and that quantity of Charas was lying in his house. In addition thereto, the appellant was also in possession of heavy quantity of Charas. Upon such disclosure, the police conducted the raid, and on the sight of the raiding party, the appellant is alleged to have run on the roof top of his house through stairs, and after throwing the shopping bag on the roof top had successfully managed to escape therefrom, though he was chased by the police party. The police took into possession of the aforesaid shopping bag alleged to have contained Charas weighing 1125 grams, out of which, 10 grams of Charas was separated for analysis by the Chemical Examiner.
3. Challan was submitted against the appellant under section 512 Criminal Procedure Code placing his name in Column No,2 thereof, whereas charge was framed by the trial Court on 11-4-2002.
4. In order to substantiate the charge against the appellant, the prosecution had produced six witnesses in all and also tendered in evidence the report of the Chemical Examiner Exh. PF. Khalid Mehmood A.S.-I. And Sana Ullah S.-I. P.Ws. 4 and 5 respectively testified to the recovery memo Exh.PC, whereas Muhammad Riaz and Khadim Ali A.S.-I. Were given up as being unnecessary. The appellant was declared as proclaimed offender and was arrested on 22-8-2001.
5. In his statement recorded under section 342, Cr.P.C., the appellant denied the whole prosecution case and pleaded his false implication on account of the enmity as the mother of the accused had moved application against the police. He added that recovery was planted and the samples taken therefrom were fabricated at the Police Station bythe police functionaries. It was further disclosed by the appellant that he never remained fugitive from the law and that fictitious proceedings had been carried out by police in this context.
6. At the conclusion of the trial, the learned trial Judge found theappellant guilty and proceeded to convict and sentence the appellant in the terms enumerated above.
7. The learned counsel for the appellant contends that in fact nothing was recovered from the person of the appellant, and that the prosecution version is wholly incredible, particularly the alleged escape of the appellant through the flight stairs. It was further argued that entire recovery proceedings and the alleged recovery were fictitious and faxe.
8. The learned counsel representing the State controverts the above assertions and supports the judgment impugned.
9. We have examined the record of the case and in the light of the submissions of the learned counsel for the appellant we have carefully examined the recovery memo- Exh.PC and have also scanned the depositions made by the recovery witnesses namely P.Ws. 4 and 5. It is the case of the prosecution that the shopping hag in question when opened, it contained Charas, and out of the same, 10 grams of Charas was separated and sent to the Chemical Examiner. It is the consistent stance of the prosecution that Charas recovered was one monolithic whole from which sample was extracted. However, in the course of cross-examination of P.W.4 at the request of the defence counsel, the case property was de-sealed and it was discovered, as mentioned in the note of the trial Court, that the case property consisted of "two pieces". It is not clear as to from which of the two pieces, sample was extracted for submission to the Chemical Examiner. Admittedly, one and only one sample was taken and there is no conclusive finding that the other piece was also Charas, nor the appellant could be convicted for the recovery of the second piece out of which no sample was taken. There is nothing on the record to suggest the respective weight of the two pieces, therefore, it is not possible to ascertain the weight of the piece from which the sample was taken so as to hold the appellant guilty of the offence under section 9-a, 9-b or 9-c of the C.N.S.A.
In this view of the matter, we are of the considered view that interest of justice would be best served, if the sentence of the appellant is held to be reduced to one already undergone by him.
Hence, the appeal is partly allowed with the modification in the sentence of the appellant to one already undergone by him. He shall be released forthwith if not required to be detained in any other case. In thepeculiar circumstances of this case, his sentence of fine is also set aside. " with the modification in the sentence of the appellant in the term indicated ibid."
Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.