1. ' BASHIR A. MUJAHID, J.---Ghulam Jillani appellant has challenged judgment, dated 26-5-2003 passed by the learned Sessions Judge/Special Court C.N.S.A., 1997, Khushab whereby he was convicted under section 9B of Control of Narcotic Substances Act, 1997 for having possession of Charas 255 grams and was sentenced to 2-1/2 years' R.I. And a fine of Rs.5000, in default thereof to further undergo S.I. For three months. Benefit of section 382-B, Cr.P.C. Was, however, extended in his favour.
2. ' The brief facts of the case are that Arshad Abbas, S.-I. Received spy information that the appellant was present in Chowk Khananwala and selling drugs. On which raiding party was constituted and raid was conducted and the appellant was arrested and from his personal search charas 255 grams wrapped in plastic paper was recovered which was taken into possession through memo.
3. Exh. P.B. On the basis of complaint Exh. PA/1 formal F.I.R. No. 281, dated 19-11-2002 under section 9-B C.N.S.A., 1997 was registered at Police Station Khushab.
4. ' After completion of the investigation the appellant was sent up for trial. The trial Court framed the charge which was denied by the appellant and he claimed trial.
5. ' During the trial the prosecution; examined Sher Afzal A.S.-I. P.W.1. Who recorded the formal F.I.R.
6. Exh.PA on the basis of complaint Exh.PA/1: Nasir Iqbal H.C.P.W.2 kept the sealed parcel of charas in safe custody in police Malkhana and handed over the same to Muhammad Sibtain, FC P.W.3 for deposit of the same in the office of Chemical Examiner. Muhammad Sibtain, FC P.W.3 delivered the sealed parcel of charas in the office of Chemical Examiner intact. Muhammad Afzal, FC P.W.4 was member of the raiding party and he attested the recovery memo. Exh.PB whereby charas weighing 255 grams was taken into possession. Muhammad Arshad Abbas, S.-I. P.W.5 was complainant of the case, he investigated the case and submitted the challan.
7. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.PD.
8. ' The statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question as to why the case against him and the P.Ws. Deposed against him he stated as under:-- "Unfortunately I had inimical relations with one Sardar Jafer Khan Baloch who happens to be a big landlord of Khusab town. I and my family members opposed him during recent Local Bodies Elections and voted against his group. He being in league with the local police falsely got me involved in this case. About 5 days prior to the registration of this case I was in illegal custody of police and later on at his behest I was involved in this case."
9. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
10. ' Learned defence counsel for the appellant has opted not to challenge the conviction of the appellant and has prayed for lesser penalty as only 255 grams charas was recovered from the appellant which is less dangerous kind of narcotics.
11. ' Learned counsel for the State has opposed the impugned judgment.
12. ' Heard. Record perused.
13. The appellant was apprehended by the police and from his personal search charas was recovered and there is no mala fide or on part of the police, therefore, we find that the prosecution case has been established against him by the ocular account corroborated by positive report of Chemical Examiner and find no reason warranting interference in the conviction recorded against him, so the same is maintained.
14. As far as sentence is concerned, learned trial Court has observed in para.16 of the judgment that the accused is previously involved in cases of similar nature, therefore, he is habitual offender but we find that no such suggestion was put to him in his statement recorded under section 342, Cr.P.C., so without evidence put to the accused same cannot be passed for recording of conviction or sentence. Learned Defence counsel for appellant is justified in not challenging the conviction and praying for lesser sentence as only 255 grams charas was recovered which is less dangerous kind of narcotics, therefore, while taking lenient view we reduce the sentence of the appellant to the period having been already undergone by hint which will meet the ends of justice The appeal is dismissed with the above modification. The appellant is ordered to be released forthwith if not required to be detained in any other case.