' SH. AZMAT SAEED, J.---The captioned Jail Appeal has been preferred by the appellant Shamim alias Tanveer to assail his conviction and sentences awarded by the learned Judge, Special Court (C.N.S.A. 1997), Gujranwala by means of judgment impugned dated 26-2-2003, whereby, the appellant was convicted and sentenced to undergo R.I. For 7 years', plus fine of Rs,50,000 or in default thereof, to further suffer R.I. For six months' with benefit as contemplated by section 382-B, Criminal Procedure Code for the commission of offence under section 9(c) of the C.N.S. Act, 1997 in case F.I.R. No,69 dated 15-3-2001 Police Station Dhulley, Gujranwala.
2. The prosecution case is based on the complaint Exh.PA authored by Muhammad Afzal A.S.-I.
P.W.3 which discloses that on 15-3-2001 when he was on patrol duty along with other police functionaries at Shama Road, he had received a secret information that the appellant was dealing in narcotics, and was present beside the wall of Quaid-e-Azam Divisional Public School. Thus, the police party raided the said place along with the informer and apprehended the appellant at the spot with the shopping bag containing 3 K.Gs. Charas, out of which, 10 gram Charas was separated for purposes of chemical analysis and took both the sealed parcels into possession vide Memo.
Exh.PB attested by Anljad Ali, A.S.-I., Abdul Razaq constable besides himself. Then he scribed the complaint and dispatched the same to the Police Station where formal F.I.R. Exh.PA/1 was drafted by Muhammad Mansha, A.S.-I. Same day at 2-45 p.m.
3. After registration of the case, the investigation was taken over by Arif Hussain, S.H.O. P.W.6, who visited the spot, prepared the site-plan Exh.PC, recorded the statements of the P.Ws. And he deposited the case property with Muharrir. On completion of investigation, he submitted his report before the trial court under section 173, Criminal Procedure Code.
4. To prove its case at the trial, the prosecution had produced six witnesses in addition to the documentary evidence Exh.PA to Exh.PD. P.W.2 Abdul Razak and P.W.3 Muhammad Afzal A.S.-I.
Deposed about the recovery of Charas.
5. In his examination under section 342 Criminal Procedure Code, the appellant had controverted the prosecution allegation, and also produced two defence witnesses. He also produced Exhs.DA to DC in his defence. He did not opt to get his statement recorded under section 340(2), Criminal Procedure Code. It was deposed by the appellant that on 12-3-2001 he was arrested from his house by Arif Hussain P.W.6 followed by the arrest of Shahid alias Shadu. The appellant was asked by said P.W.6 to pay the illegal gratification, but he did not fulfil such demand on account of his poverty. Said Shadu had paid the illegal gratification, thus, he was got discharged by P.W.6. The appellant further stated that he was confined in the police station from 12-3-2001 to 15-3-2001 and claimed to have been arrested in presence of his family members when the police vehicle in which Shadu was present was parked in front of PCO owned by Watis. The appellant further stated that when he was taken to the lock-up on 12-3-2001, Munir son of Nazir Ahmed was already confined there under the Gunda Act. He also asserted that nothing was recovered from him and the Charas was falsely planted upon him.
6. D.W.1 Muhammad Naseer alias Kalu stated that on 12-3-2001 he was arrested and confined in the police station and on the same day at about 8-30 p.m., two more persons including the appellant were also confined in the police lock-up. He further stated that he did not know the appellant previously and also did not know for which offence the appellant was arrested by police. He denied having dealt in narcotic.
7. D.W.2 Waris Ali deposed that the appellant was known to him. On 12-3-2001 at about 7 p.m. He was present at the PCO and had seen four persons in police uniform dragging the appellant. He further deposed that nothing was recovered from the appellant at that particular point of time.
8. After evaluating both the prosecution as well as defence evidence, the learned trial Judge convicted and sentenced the appellant in the manner as stated above.
9. We have heard the learned counsel for the appellant and the State and have scrutinized the whole evidence available on record. As far as D.Ws. 1 and 2 are concerned, suffice it to add their depositions hardly furnished any basis to prove the innocence of the appellant.
10. To ascertain the genuineness of the recovery, we would dilate upon the testimony of P.Ws.2 and 3 respectively. In his cross-examination P.W.2 stated that the Charas recovered from the appellant was in the shape of slabs (Chhiters) and admitted that he was unable to remember the number thereof. However, he affirmed that sample was taken from only one blab. Similarly, P.W.3 conceded in his cross-examination that recovery of Charas was in the form of "Dallis" of different sizes and the sample was taken from one piece only. Admittedly, the positive report of the Chemical Examiner Exh.PD relates to that particular slab of Charas, out of which the sample was taken and dispatched for its chemical analysis, and in our view would not hold good qua the remaining portion of the B seized substance. Furthermore, the quantum and weight of the slab from which the sample was taken is not evident on the record. In this view of the matter, it is difficult to hold whether the offence falls within the mischief of sections 9(a), 9(b) or 9(c) of the C.N.S.A.
11. Considering the case from all angles, we are of the view that interest of justice would be best served, if the sentence of the appellant is reduced to one already undergone by him. In the peculiar circumstances of this case, the sentence of fine is also set aside. The appellant shall be released forthwith if not required to be detained in any other case.
12. With the aforesaid modification in the appellant's sentence, this appeal stands dismissed.
Sentence reduced.