' IMAM BUX BALOCH, J.---Through this appeal, the appellant has assailed the judgment dated 27-11- 2008 passed by the learned Special Judge C.N.S., Thatta in Special Case No,16 of 2008, arising out of F.I.R. No,60 of 2008 of Police Station Gharo registered for offences under section 9(c) of C.N.S. Act, 1997, whereby, the learned trial Court convicted and sentenced the appellant to suffer R.I for life imprisonment and to pay a fine of Rs,200,000 and in case of non-payment of fine, to suffer S.I. For one year more. However, the benefit of section 382(b) was extended in his favour.
2. The prosecution case in precise is that on 10-4-2008, S.I.P. Tahir Ayoob Pathan of Police Station Gharo received information from S.H.O. Police Station Dabeji, S.I.P. Noor-ud-Din Brohi that during the checking of vehicles, one white colour Corolla Car No,AMQ-650 had slipped away from their vision which be stopped and checked.' On receiving such information S.I.P. Tahir Ayoob left the Police Station Gharo along with his subordinate staff namely S.I. Ameer Bux Khoso, H.C. Sikandar Ali, P.C.
Allandino, P.C. Aqeel Ahmed, P.C. Waseem Khan, P.C. Muhammad Bux, P.C. Muhammad Mursaleen vide Entry No,29 at 2230 hours. The police party started checking at Aari Camp and when at about 2300 hours the said numbered Corolla Car was got stopped, the driver tried to cross the police party but the police got stopped the car. The police enquired about the parentage of driver, who disclosed his name as Shakir son of Dost Muhammad Brohi originally resident of Khuzdar, presently living at Filter Plant Gharo. The police while, treating him suspect arrested him under section 54, Cr.P.C. And made his personal search. From his front side pocket of his Shirt two notes of 100 denominations were recovered. The car was searched and from Digi of the Car two plastic bags of blue and red colour were recovered containing 14 packets of Charas, each pocket containing 100 rods of charas. The recovered charas was weighed, which became 14 k.Gs. The police party picked up one packet containing 100 rods and sealed the same separately as sample for chemical examination while 13 bags were separately sealed in blue plastic bag. Such Mashirnama of arrest and recovery was prepared.
3. The complainant S.I.P. Tahir Ayoob lodged F.I.R. Under section 9(c) of C.N.S. Act, 1997 against the applicant accused. After completing the usual investigation, the challan was submitted before the Court of Special Judge C.N.S. Thatta.
4. The Charge (Exh.No,2) was framed against the appellant under section 9-C C.N.S. Act, 1997 to which the appellant pleaded not guilty and claimed to be tried.
5. During trial prosecution has examined S.I.P. Tahir Ayoob as P.W.1 (Exh.4). He has produced attested copies of Entry at Exh.4-A, Mahsirnama of Arrest and Recovery as Exh.4/b, F.I.R. No,60 of 2008 as Exh.4-c, A.S.-I. Ameer Bux Khoso as P.W.2 (Exh.5), S.I.P. Ellahi Bux as P.W.3 (Exh.6). He produced chemical report as Exh.6-A.
6. After completing the prosecution evidence, the prosecution closed its side by Exh.7. The statement of appellant under section 342 Cr.P.C. Was recorded by the trial Court. In his statement, the appellant stated that he is innocent and has falsely been implicated by the police. Prior to this case he was involved in two other cases of similar nature. In one case he was acquitted while in this case he has been falsely implicated.
7. We have heard Mr. Habib Ahmed, learned counsel for the appellant and Mr. Zahoor Shah, learned A.P.-G. For the State and have gone through the record.
8. At the very outset of the arguments, learned counsel for the appellant stated that he does not want to touch the merits of the case but as one k.g. Charas was sent for chemical examination, the same may be treated as recovery and his sentence from life imprisonment be reduced into sentence provided for one k.g. Charas, which was sent for chemical examination. Learned counsel has relied upon the following case-laws:--
(i) Abdul. Karim v. The State (2010 MLD 71),
(ii) Muhammad Suleman Jatoi v. The State (2010 YLR 441),
(iii) Muhammad Riaz and 2 others v. The State (2006 SCMR 1378),
(iv) Waris Khan and 2 others v. The State (2008 SCMR 991),
(v) Jamil Khan and 2 others v. The State (PLD 2008 (Karachi) 374),
(vi) Muhammad Hashim v. The State (PLD 2004 SC 856),
(vii) Jan Alam v. The State (2009 YLR (Kar.) 1724), (viii)Gulshan Ara v. The State (2010 SCMR 1162),
(ix) Amanat Ali and 2 others v. The State (2008 SCMR 991).
' Learned counsel for the appellant has summed up his arguments while praying in the light of above authorities the sentence of life imprisonment may be reduced.
9. On the other hand, learned Assistant Prosecutor General argued that it is not necessary for the prosecution to send all contraband material for chemical examination. He further contended that the learned counsel for the appellant has not disputed the report of the Chemical Examiner, hence the prosecution has proved its case and the learned trial Court has rightly convicted the appellant.
He has vehemently opposed for reduction of sentence of the appellant. He has relied upon following case-laws:--
(i) Ali Muhammad and another v. The State (2003 SCMR 54),
(ii) Nadir Khan and others v. The State (1988 SCMR 1899),
(iii) Muhammad Mustafa and another v. The State (2008 SCMR 742),
(iv) Muhammad Khan v. The State (2008 SCMR 1616),
(v) Tariq Mehmood v. The State (PLD 2009 SC 39),
(vi) Saifurrehman v. The State (PLD 2009 SC 383).
10. We have considered the submissions advanced at the bar by both the parties, and have gone through the case-laws relied upon by both the learned counsel for the parties. The main contention of the learned counsel for the appellant is that only 1 k.g. Charas was sent for chemical examination and accepting the chemical examination report as positive the conviction of the appellant be reduced under section 9(b) of the C.N.S. Act, which provides punishment for seven years.
10. In the case of Gulshan Ara (supra), the Hon'ble Supreme Court has observed as under:- "(7) Having come to the afore-referred conclusion, the Court converted the conviction of the appellant in the said case from section 9(c) of Control of narcotic Substances Act, 1997 to section 9(b) of the said Act and reduced the sentence to the period that the appellant had already undergone. In the instant case as well admittedly no sample was taken from any other packet except one and the said packet according to the prosecution weighed only one kilogram. That being so the case of the appellant would fall in section 9(b) of Control of Narcotic Substances Act, 1997 consequently, this appeal is partly allowed and by converting appellant's conviction from section 9(c) of Control of Narcotic Substance Act, 1997 to section 9(b) of the said Act her sentence is reduced including that of fine to the one that she has already undergone. She shall be released forthwith unless detained in any other case."
12. In the above cited case-law the Hon'ble Supreme Court was of the view that in the given facts and circumstances of the case it be presumed that the sample was taken out from only one rod, as far as the remaining rods are concerned in the absence of any sample taken out from them would not be possible to hold that they were the rods of Charas or otherwise, therefore, taking into consideration this aspect of the case the Hon'ble Supreme Court was of the view that for such reason the case of the prosecution becomes doubtful. In the above circumstances of the case, the appeal was allowed.
13. We have examined the case-law. Recent view of the Hon'ble Supreme Court as observed in the case of Gulshan Ara.(supra) is that the contraband material sent for chemical examination is to be considered for conviction of an accused. In the present case 1 k.g. Of charas was sent for chemical examination and the chemical report is in positive. Admittedly, no sample was taken from any other packet except one. Learned counsel for the appellant has contended that the case of the appellant would fall under section 9(b) of C.N.S. Act, 1997 as held by the Hon'ble Supreme, Court in the case of Gulshan Ara (supra). The contention of learned counsel appears to be plausible, therefore, in view of Gulshan Ara's case (supra) the case of the appellant would fall under section 9(b) of C.N.S. Act, 1997. Consequently, we partly allow the appeal by converting the sentence of the appellant from section 9(c) to section 9(b) of C.N.S. Act, 1997 i.e, seven years and also reduce the fine up to Rs,100,000 and in default of payment of fine, he shall suffer R.I. For six months more. The benefit of Section 382-B, Cr.P.C. Has already been extended, by the trial Court, which will remain intact.
' With the above modification, sentence awarded by the trial Court in the impugned judgment, the appeal is disposed of.
Sentence reduced.