' AFTAB AHMED GORAR, J.---Appellant Sher Khan has filed this appeal against impugned Judgment 29-9-2012 passed by learned Special Judge CNS/IInd Additional Sessions Judge, Hyderabad, whereby he was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer Rigorous imprisonment for 10 years with fine of Rs,50,000 and in default thereof, he shall suffer S.I for three months more. Appellant was given benefit of section 382-B, Cr.P.C.
2. Succinctly facts of the prosecution case are that on 26-1-2011 at 2330 hours, complainant SIP Rao Muhammad Jawaid along with police party, during patrolling arrested the appellant and recovered two kilograms charas from his possession at the street of Crown Hotel Unit No,7 Latifabad in presence of the mashirs,
3. Formal charge against the appellant was framed by the trial court in which he denied the allegations and claimed his trial.
4. In order to prove As case, the prosecution examined in all three witnesses i,e, Complainant SIP Rao Muhammad Jawaid, mashir PC Shahid Ali Shaikh and I.O. SIP Mehmood Akhtar and then prosecution closed its side.
5. Statement of the appellant under section 342, Cr.P.C. Was recorded, in which he denied the material put forward to him in shape of questions. He however, neither examined himself on oath nor produced any defence evidence.
6. Learned counsel for the appellant argued that entire recovered charas was not sent to the Chemical examiner and only 10 grams were sent to the chemical examiner, therefore, the appellant would be held responsible to the extent of said 10 grams only. He further contended that there is a delay of four days in sending the samples to the Chemical Examiner and there is no explanation that during such period, the samples were in safe custody. He further contended that as per the F.I.R. As well as mashirnama two patties of charas were recovered from the appellant but four patties were produced in the trial court as case property, which was duly admitted by the complainant as well as mashir. Learned counsel argued that the alleged incident took-place in the street near the Crown Hotel but no person from the locality was associated to witness the incident which is violation of section 103, Cr.P.C. He further contended that case property was sealed in the cloth bag with sewing machine but the said sewing machine was not produced before the learned trial court. Complainant stated that two seals were affixed on each parcel whereas the mashir of the case has stated that one seal was put on the parcel. Learned counsel submitted that letter addressed to the Chemical Examiner shows its date of issuance as 26-1-2011 whereas the F.I.R. Was registered on 27-1-2011, hence according to him how the investigation was started prior to lodging of the F.I.R. He further stated that no document was produced before the trial court regarding sealing and sending the charas for chemical examination; the letter sent to the Chemical Examiner also does not bear outward number, which was essential. Learned counsel submitted that the alleged motorcycle on which the accused was apprehended though was seized by the police, but was not produced before the trial court. Learned counsel submitted it is not necessary that there should so many contradictions or circumstances to extend benefit of doubt and if a single circumstance creates doubt in the prosecution case, its benefit must be given to him as a matter of right. Learned counsel contended that there are so many circumstances in the present case creating doubt in the prosecution case, therefore, the appellant is entitled for acquittal by extending benefit of doubt. Learned counsel contended that there is no previous record regarding the involvement of the appellant in like nature cases. He submitted that the appellant is a poor person and lone bread earner of his family. In support of his arguments, he has relied upon the cases of Ghaus Bux v. The State (PLD 2004 Karachi 201) and Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362).
7. On the other hand, learned Additional Prosecutor-General supported the impugned Judgment and contended that the P. Ws. Deposed in line with each other and there are minor contradictions between their evidence which cannot be considered. He submitted that the appellant did not challenge/dispute the chemical examiner's report which was in positive. He further contended that thereis no requirement of the law to produce wrapper or motorcycle recovered from the accused at the time of incident as the concerned Narcotic substance was sealed and produced in the trial court. He stated that the prosecution succeeded to prove charge against the appellant, therefore, impugned Judgment requires no interference by this court.
8. We have heard learned counsel for the parties and perused the record. The prosecutions in order to substantiate its charge against the appellant examined complainant SIP Rao Muhammad Javed, who was heading the party on patrolling, mashir PC Shahid Ali and the Investigating Officer SIP Mehmood Akhtar, who had investigated the case and challaned the appellant before the learned trial court. The complainant as well as mashir deposed that on the day of the incident, when they reached at Crown Hotel, they noticed a person coming on the motorcycle, who on seeing them ran away, however, they chased and arrested him. They further stated that during personal search of the accused, they recovered charas which was weighed found to be of Two Kilograms, some cash amount and NIC also were recovered from him. Both these witnesses have supported the prosecution case and the contradictions pointed out by the learned counsel for the appellant are not so material to vitiate the prosecution case. These contradictions are regarding number of seal, number of patties of charas, date and outward number of the letter under which the samples were sent to the Chemical Examiner, which are in our view, not fatal to mark any dent in the prosecution case, which otherwise has been supported by the complainant, mashir of arrest and recovery, as well as the I.O. The report of the Chemical Examiner is also in positive.
9. The only question which arises in the present appeal is whether the appellant has been convicted according to the quantity of narcotic substance recovered from his possession. In this regard, an elaborate Judgment has been passed by the Lahore High Court in case of Ghulam Murtaza (supra), wherein the issue of sentence from diverse angles including legal, social and economic perspectives was determined and the normal and standard sentences for different quantities of various contraband narcotic substances recovered in connection with the control of Narcotic Substances Act, 1997 were approved and prescribed. In this connection a chart and principles therefore was provided in the said Judgment. According to the chart regarding the sentence for quantity of charas exceeding one kilogram upto two kilograms has been provided as R.I. For 4 years, six months and fine of Rs,20,000 or in default S.I. For five months.
10. In the decision given in the case of Ghaus Bux (supra), private mashir was available with the police party, who arrested the accused and recovered charas from them and mashirnama was prepared with signatures of the said private person but he was not examined in the case and the Chemical Examiner had received the sample after more than seven months, therefore, it was observed that prosecution did not examine the private mashir available in court and instead had examined a police witness to prove the allegation against the accused. It was held in the said decision that presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 could be raised had the private mashir been examined and would not have supported the prosecution case. Therefore, accused was acquitted. However, in the present case, no private mashir was accompanied with the complainant at the place of incident and also there is no such long delay in the aforesaid case, therefore, this case is of no help to the appellant.
11. In view of the above circumstances and keeping in view the Judgment of the Lahore High Court in connection with the sentences for the quantity of the Narcotic substances, we maintain the conviction, however, modify the sentence of the appellant from R.I. 10 years and fine of Rs,50,000 to 4 years and six months and fine of Rs,20,000 and in default thereof to suffer S.I. For five months.
Appellant is also given benefit of section 382-B, Cr.P.C.
' The Criminal Jail Appeal Stands dismissed with the above modifications in the sentence.
Sentence reduced.