' SHAKEEL AHMED BALOCH, J.---This criminal appeal has been presented against the judgment dated 26th September, 2013, passed by the Special Judge, CNS/Sessions Judge (Adhoc), Quetta.
The appellant was convicted and sentenced under section 9(c) of the CNS Act, 1997 to suffer R.I. For a period of four years and to pay fine of Rs,20,000, In default whereof to further undergo two months' S.I., with benefit of section 382-B Cr.P.C.
2. Brief facts of the case are that on 17th March, 2012, on the report/Murasala of complainant Nasir Ahmed, SI, an F.I.R. No, 53 of 2012 was registered at Brewery Police Station, Quetta, alleging therein that on the aforesaid date, during patrolling when they reached at Killi Tarkha near graveyard, the appellant was found in suspicion condition. He was stopped and his personal search was conducted. Resultantly, backed hashish in pieces, wrapped in plastic bag were recovered from his possession. On weighing, the same was found two kilogram, out of which five grams was separated for chemical analysis and sealed_in parcel No,1, while the remaining was sealed in parcel No,2. The recovered Hashish was taken into custody through recovery memo. After completion of the investigation, the challan was submitted before the Court of Special Judge, CNS/Sessions Judge (Adhoc), Quetta.
3. The charge was framed and read over to the appellant, to which the appellant denied the allegation and claimed trial. The prosecution in support of its case, produced three witnesses, and also exhibited relevant documents. After close of prosecution side, the appellant was examined under section 342 Cr.P.C., wherein he denied the allegation levelled against him. The appellant did not opt to record his statement under section 340(2) Cr.P.C, nor produced any witness in his defence. On conclusion of the trial, the appellant was convicted and sentenced as mentioned hereinabove, hence this appeal.
3(sic) The learned counsel for the appellant argued that the appellant is innocent and nothing was recovered from his possession and the contraband narcotics was foisted on him by the prosecution. He further contended that the trial court has not properly appreciated the evidence and the material available on record. According to him, there are contradictions in the statements of the witnesses, but the trial court has failed to properly appreciate the same.
4. The learned Deputy Prosecutor-General opposed the contention put forth by the learned counsel for the appellant and stated that the charas was recovered from his possession, which was taken into possession through a recovery memo. He further stated that the witnesses were thoroughly cross-examined, and none of the witness was shaken, therefore, the trial court after proper appraisal of the evidence and material available, on record, has rightly convicted and sentenced the appellant.
5. We have heard the learned counsel for the parties and have perused the record. The perusal of record reveals that the recovered charas allegedly weighing two kilograms was in the shape of four pieces, and according to the prosecution witnesses five grams was separated from those pieces and sealed in a Parcel No, I. Under such circumstances, it would be appropriate to mention here that the sample from each piece should have been extracted and each sample should have been sealed in separate parcel for chemical examination. If no sample is taken from any particular piece or if different samples taken from different pieces are not sent separately for analysis to Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substances of which no sample has been taken separately and sealed separately or tested being narcotic substance.
Under such circumstances, the sample of five grams separated for chemical examination would be considered as extracted from one piece which is considered to be 1/2 kilogram, and only that 1/2 kilogram of charas could have been considered against the appellant as a recovered narcotics and similarly the appellant could have been convicted accordingly for the recovery of 1/2 kilogram Charas. In this regard reliance is placed on the case of Ameer Zeb v. The State (PLD 2012 SC 380) and the case of Fareed Ullah v. The State (2013 SCM R 302).
' Thus, in view of what has been stated and discussed hereinabove, the appeal is partly allowed, the conviction of the appellant awarded by the trial court for an offence under section 9(c) of the Control of Narcotic Substancesct, 1997 is converted into section 9(b) of the said Act and the sentence of the appellant is reduced from four years' R.I to that of one year and six months' R.I., and fine of Rs,20,000 is reduced to that of 13,000, and in default thereof to undergo S.I. For three months with benefit of section 382-B Cr.P.C.
Sentence reduced.