' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the impugned judgment dated 24-6-2011, passed by the learned Special Judge-II, (C.N.S), Karachi in Spl. Case No,207 of 2010, Crime No,24/2010 under section 6,9-(c) CNS Act, 1997, Police Station Customs, whereby, the appellant Muhammad Tahir Nawaz son of Raja Haq Nawaz was convicted under section 9(c) and sentenced to suffer rigorous imprisonment for five years with fine of Rs,100,000 and in case of default whereof, to further rigorous imprisonment for six months with the benefit of section 382-B, Cr.P.C, the appellant has preferred the instant appeal.
2. Learned counsel for the appellant, at the very outset, stated that the appellant will be satisfied and will not press the instant appeal on merits provided, the conviction of the appellant recorded under section 9(c) may be converted into section 9(b), keeping in view the facts of this case and in the light of the dicta as laid down in the judgment of the Hon'ble Supreme Court of Pakistan in the case of Ameer Zeb v. The State reported as PLD 2012 Supreme Court 380. Per learned counsel, in the cited judgment, the Hon'ble Supreme Court converted the conviction under section 9(c) into section 9(b) of CNS Act, 1997 (hereinafter referred as Act, 1997), of contraband keeping in view the quantity from which the samples were drawn and sent for chemical examination. It has been further prayed that after conversion of such conviction from section 9(c) to section 9(b) of the Act, 1997, the accused may be released by reducing the sentence which he has already undergone.
Learned counsel for the appellant has argued that admittedly in the instant case, only three samples of 10 grams each from three packets were sent for chemical examination, therefore, keeping in view the judgment of Horeble Supreme Court, the appellant is liable to be convicted only for the quantity from which the samples were drawn and sent for chemical examination. Per learned counsel, since the total weight of 20 packets of heroine was 3.9 kilo grams and if the same is divided into equal weight of 20 packets, the weight of each packet comes to 200 grams, and since from three packets samples were sent, therefore, total weight of alleged recovery will be considered 600 grams. As such per learned counsel, the offence falls under section 9(b) and not under section 9(c) of the Act, 1997. He has further contended that since the appellant is first offender and a man of young age, who has shown repentance and promised not to repeat such offence in future, therefore, lenient view may be taken and the appellant may be released on the basis of sentence which he has already undergone. Per learned counsel, as per jail roll, the appellant has already undergone a substantial sentence for about four years including remissions, whereas, he is willing to pay the fine of Rs,100,000 if allowed to be released.
3. Learned standing counsel, on examination of the record and from perusal of the case-law relied upon by the learned counsel for the appellant, does not oppose such contention of the learned counsel for the appellant.
4.
We have heard the learned counsel for the appellant and perused the impugned judgment as well as case-law relied upon by the learned counsel for the appellant. We are of the view that the contention of the learned counsel for the appellant with regard to the conversion of the sentence from section 9(c) to section 9(b) of the Act, 1997, under the circumstances, appears to be correct.
However, for the sake of brevity we, would like to reproduce the relevant portion of the judgment of Hon'ble Supreme Court of Pakistan on the subject, which read as follows:- - "For the purposes of clarity and removal of confusion it is declared that where any narcotic substance is allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against the accused person from which a sample was taken and tested with a positive result."
5. From perusal of the jail roll, it appears that the appellant has already undergone a substantial sentence of imprisonment for about four years, whereas, he has shown repentance and promised not to repeat such offence in future. The appellant is also willing to pay the fine of Rs,100,000.
Admittedly, three samples of 10 grams from three packets of 200 grams each were taken and sent for chemical examination. Such fact is further verified from the chemical examination report available on record as Exhibit-L.
6. In view of hereinabove facts and circumstances of the case and following dicta as laid down by the Hon'ble Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380), this appeal is partly allowed, the conviction of the appellant recorded by trial court for an offence under section 9(c) of the Act, 1997 is converted into section 9(b) of the Act, 1997. The appellant is sentenced for a period already undergone with fine of Rs,1,00,000 or in default of payment thereof to undergo simple imprisonment for six months more.
' The appeal is disposed of in the above terms along with listed application.