' SARDAR MUHAMMAD ASLAM, J.---This criminal appeal is directed against the judgment, dated 11- 9-2003 passed by the learned Additional Sessions Judge, Faisalabad, whereby he convicted the appellant under section 9(c) of C.N.S.A. And sentenced him to undergo 7 years' R.I.Along with a fine of Rs,10,000. In default of payment of fine he shall further undergo S.-I. For 6 months. The benefit of section 382-B, Cr.P.C. Was also granted.
2. Learned counsel for the appellant contends that P.W.2 stated that the recovery of 200 grams was effected from the person of the appellant hence he can only be convicted to that extent.
3. Learned counsel for the State has supported the judgment of the learned trial Court and argued that though Basharat Ali A.S.-I. P.W.2 stated recovery of 200 grams Charas vide recovery memo Exh.PA yet statement of Bashir Ahmed P.W.3 fully corroborates the stance taken in the first information report of having effected the recovery of 1200 grams Charas.
4. Heard. Record perused.
5. Ex. PA is the recovery memo. The recovery was witnessed by Basharat Ali A.S.-I. P.W.2 and Khalid Constable. One of the recovery witness Basharat Ali A.S.-I. Stated 200 grams Charas was recovered from the person of the appellant. The learned ADA gave up the other recovery witness Khalid Mahmood being unnecessary. The report of the Chemical Examiner is positive. The learned counsel for the appellant has not seriously questioned the conviction but prayed that in view of thestatement of P.W.2 the sentence passed is excessive and does not commensurate with the quantity of Charas recovered.
6. After considering the case from all angles, we are of the view that P.W.2 has stated that the recovered quantity was 200 grams and the other recovery witness was given up by the prosecution without any reason, cast doubt on prosecution case. The conviction under section 9(c) is thus not sustainable. The offence in this manner falls under section 9(b) of C.N.S.A. The conviction and sentence under section 9(c) is set aside.
7. We are of the view that offence against appellant falls within the ambit of section 9(b) of C.N.S.A.
We accordingly convict him under section 9(b) and sentence him to undergo 5 years' R.I. With a fine of Rs,5000. In default whereof he will suffer S.-I. For 3 months. Benefit of section 382-B, Cr.P.C.
Shall remain available to him.
8. With the above modification, this appeal stands disposed of.