JUDGMENT SYED ZAKIR HUSSAIN, J.--- This criminal jail appeal is preferred by the appellant against his conviction and sentence pronounced by the learned Special Judge (CNS), Larkana, on 25-6- 2009, by way of judgment delivered in Special Case No. 6 of 2006, in the matter of Crime No. 15 of 2006, lodged with Police Station Mahota, for the offences punishable under section 9(c) of Control of Narcotic Substances Act, 1997; on the basis of facts that the appellant was found in possession of packets of charas, 11 in number by the patrolling police party of said police station on prior spy information on the given date, place and time He was arrested and said substance was secured from his possession. Quit of the same 500-grams was taken as sample and put to a separate parcel under memo prepared to such effect then and there in presence of official mashirs. The appellant and the crime property both were taken to police station, where instant F.I.R was lodged and after investigation charge sheet was filed.
2. Trial as already stated above commenced and on the basis of statements of the members of the said police party including the complainant, mashir etc. The learned trial Court passed conviction and sentence by way of impugned judgment. The sentence, which has been awarded, is life imprisonment for possession of entire 11 kilograms covered under section 9(c) of CNS Act, 1997.
3. The learned counsel for appellant states that the case of the appellant falls within purview of section 9(b) of CNS Act for the simple reason that mashirnama is silent as to whether the sample was obtained from each of the eleven packets and therefore the legal presumption that the sample of 500 grams was taken from one of the said Eleven packets would be acceptable for the purpose in question and the offence deemed to have been committed would remain confined to the provision referred to above, and therefore, the conviction and sentence needs to be altered from one of section 9(b), to that of section 9(c) of CNS Act, 1997, as a matter of fairness. In this regard he has relied upon case of Muhammad Hashim v. The State reported as PLD 2004 SC 856.
The relevant head-note whereof runs as under:-- "Record and recovery memo showed that four grams of charas was taken as sample out of total 288, rods and nothing was available on record to show whether the sample for examination by the chemical examiner was taken out from each rod to ascertain that 288 rods were that of charas or some other commodity, having resemblance with the, color of charas like oil cake (Khal) etc. Stringent sentences having been provided under the Control of Narcotic Substances Act, 1997, if offences charged against the accused within any component of section 9 were proved, therefore, said Act. Had to be construed strictly and the relevant provision of law dealing with the procedure as well as furnishing the proof like the report of expert, were to be followed strictly in the interest of justice, otherwise in such-like cases it would be impossible to hold that total commodity recovered from the possession of accused was charas. Presumption, in given circumstances of the present case, was that sample as taken out from only one rod; so far as the remaining rods were concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of Charas or otherwise. Supreme Court while taking into consideration such aspect of the case, held that for such reason, the case of the prosecution had become doubtful, as such, sentence awarded to the accused by the trial Court and maintained by the High Court was not sustainable."
4. According to the learned counsel, the appellant has already served more than 4-1/2 years in confinement as under trial prisoner and convict both and therefore; the purpose of justice is already served. Otherwise, also, according to him, the case of the appellant is of border line, attracting the offence of section 9(b) of Control of Narcotic Substances Act, 1997. Learned counsel for the appellant does not press appeal if the said modification and alteration is effected.
5. The learned counsel appearing for the State/CNS in the matter concedes. He is also of the view that since 500 grams is secured as sample in the matter, with no specific mention as to whether the same has-been obtained from each of the said eleven packets or otherwise, and thus the benefit which is being claimed by the learned counsel for the appellant in the matter as discussed above, is open to be considered in his favour. He in other words, concedes the requested alteration of the conviction and sentence.
6. Consequently, we being in A agreement with what has been argued by the learned counsel for the appellant do hereby alter the conviction and sentence (from that of section 9(c) of the Control of Narcotic Substances Act, 1997) to that of A section 9(b) of the Control of Narcotic Substances Act, 1997 upto the terms of what has been already undergone by the appellant in point of sentence in toto, accordingly. In other words, the conviction and sentence in question so altered shall henceforth stand deemed to have been passed under the latter (section of law) in the interest of justice. The appellant shall be released forthwith, if not required in any other case.
7. The appeal stands disposed of in the above terms.