' GHULAM MUSTAFA MENGAL, J.---This appeal has been sent by the convict/appellant Shamsullah son of Abdul Wasay through the Superintendent, District Jail, Quetta vide his Letter No,3834/1/12-J.A.
Dated 1261 October 2012, assailing the judgment of Judge, Special Court under C.N.S. Act/Sessions Judge (Adhoc), Quetta dated 27th September, 2012, whereby the appellant has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 2 years' R.I.
With fine of Rs,5,000 (Rupees five thousand only) and in default whereof to further undergo two months S.I. Benefit of section 382-B, Cr.P.C. Was extended in favour of appellant.
2. The relevant facts of the prosecution case are that on 22nd December, 2011 the complainant Muhammad Arif, A.S.-I. Along with his subordinate staff was patrolling the area. During the course of patrolling he received spy information that a person namely Shamsullah is sitting on Railway track in front of Bashir Adda and selling Charas. On receipt of this credible information the police party reached at the pointed place and saw a person sitting on Railway track, who on seeing the Police party tried to escape away, but was apprehended. On inquiry and personal search, he disclosed his name to be Shamsullah son of Abdul Wasay. The police party recovered 17 rod, 17 cubes/cakes, 4 pieces (2 small and 2 large sizes) of baked Charas, wrapped in a plastic bag in presence of witnesses. The appellant was arrested red-handed on the spot and a case under section 9(c) of C.N.S. Act was registered at Police Station, New Kuchlak, Quetta vide F.I.R. No,22 of 2011 dated 22nd December, 2011.
3. After usual investigation challan of the case against the appellant was sent to the trial Court, where charge under section 9(c) of C.N.S. Act, 1997 against the appellant was framed on 20th February, 2012, to which the appellant pleaded not guilty and claimed trial.
4. The prosecution in order to establish its case against the appellant examined three witnesses in all and closed the side of prosecution. Thereafter, appellant was examined under section 342, Cr.P.C, wherein he denied the allegations levelled against him by the prosecution. He neither opted to record his statement on oath under section 340(2), Cr.P.C. Nor wished to produce any evidence in his defence. After hearing the arguments of learned counsel for the parties, the learned trial Court vide the impugned judgment dated 27th September, 2012 convicted and sentenced the appellant as mentioned above.
5. Qazi Abdul Malik, learned counsel for the pauper appellant contended that the occurrence has not taken place in the manner as described by the prosecution. The alleged sample has been received in the Forensics Science Laboratory, Quetta on 9th January, 2012. The prosecution has failed to disclose the whereabouts of the samples during the intervening period. No private person has been associated in the recovery proceedings, though the alleged recovery was made in daylight and the place of occurrence was a busy road. He further contended that there are material contradictions in the statements of prosecution witnesses; as such, the impugned judgment is liable to be set aside.
6. On the other hand Mr. Yaya Khan learned Deputy Prosecutor-General has opposed the arguments of the learned counsel for the appellant and states that the prosecution has proved its case against the appellant beyond reasonable shadow of doubt and if there is any minor contradiction in the statement of P.Ws., does not carry any weight in the eye of law. He prayed for.
Maintainability of conviction and sentence awarded by the trial Court.
7. We have heard the learned counsel for the parties and perused the record of the case. The case of the prosecution is that on 22nd December, 2011, Muhammad Arif, A.S.-I. Along with other police officials was on area patrolling. On prior information from reliable sources to the effect that a person namely Shamsullah is present near Railway track in front of Bashir Adda and is selling Charas. On such information at 3-30 p.m. They reached at the pointed place and found a person sitting on Railway track in front of Bashir Adda. On seeing the police he tried to escape away but was apprehended and recovery of 17 rods, 17 cakes and four pieces (2 small and 2 large size) of baked Hashish wrapped in a plastic shopping bag was effected from the dub of his trouser and Rs,500 as sale amount, was also recovered from his possession. He separated 5 grams from the recovered contrabands for the purpose of analysis and sent to the F. S . L.
8. From perusal of the record, the prosecution case is found full of contradictions on material points. P.W.1 Muhammad Arif, A.S.-I. Is the complainant and P.W.2 Muhammad Tahir, Constable, is the recovery witness of the case. It transpires from the cross-examination of both witnesses that they cannot say how much quantity was taken from each rod, cake and piece of the recovered substance for chemical analysis. This statement of the said witnesses is not only contradicting the contents of F.I.R. But also the recovery memo of the contrabands. In this regard statement of P. W.3 Muhammad Amin Jaffar, S.-I./Investigating Officer is very material, who stated that during investigation at 3-50 p.m. He reached at the place of recovery (Bashir Adda), where Muhammad Arif, A.S.-I. And other police officials along with accused were present. Muhammad Arif, A.S.-I.
Handed over to him recovery memo and two parcels. Both the eye-witnesses have failed to clarify those samples for chemical analysis, which was taken from each slab, cake and 4 pieces. This creates doubt in our mind, regarding the quantity collected from the entire recovered substance for samples and manifests that sample was not taken from each slab, cake and 4 pieces. It is also an admitted fact that the alleged contraband was recovered on 22nd December, 2011 and sample was received by hand in Forensic Science Laboratory, Quetta on 9th January, 2012; therefore, the delay in sending the alleged sample to the Laboratory is another important defect in the prosecution case and is shrouded in mystery that in whose possession the alleged sample remained from 22nd December, 2011 till 9th January, 2012, which makes the case of the prosecution doubtful and any doubt if arises in the links of the chain of prosecution story, the benefit of the same will go to the accused.
9. In view of the above facts and circumstances of the case, we are inclined to maintain the conviction under section 9(c) of C.N.S Act, 1997; however, the sentence of appellant Shamsullah son of Abdul Wasay is reduced one already undergone and alos reduce the fine from Rs,5,000 (Rupees five thousand only) to Rs,2,000 (Rupees two thousand only) and in default in payment of fine, the appellant has to undergo S.I. For one month. Benefit of section 382-B, Cr.P.C. Would remain intact.
10. With the above modification, the appeal stands dismissed.