' ZAFARULLAR KHAN KHAKWANI, J. --- Mst. Rukhsana Bibi, appellant was tried by the learned Additional Sessions Judge, Sahiwal, in case F.I.R. No, 287, dated 28.05.2010, registered under Section 9(b) of the Control of Narcotic Substances Act, 1997 at Police Station City Sahiwal. Vide judgment dated 13.08.2013 the learned Trial Court found the appellant guilty and as such convicted her under said provision of the Control of Narcotic Substances Act, 1997 and sentenced to suffer three years'
R.I. With fine of Rs, 50,000/- and in case of default thereof, to further undergo 03-months' S.I. Benefit of Section 382-B, Cr.P.C. Was granted to the appellant. Feeling aggrieved of her conviction and sentences the appellant has filed this appeal.
2. The prosecution story in brief as narrated in the F.I.R. (Exh.PB/1) is .That Alam Sher, Inspector alongwith other police officials was patrolling in 'the area when he received spy information about presence of the appellant outside her house selling narcotics. Upon this information the Inspector constituted a team and conducted raid and apprehended the appellant. Her personal search by the lady constable divulged into recovery of 485 tablets of morphine and Rs, 650/- as sale proceeds. Out of the recovered tablets, 10 tablets were separated by the Inspector for chemical analysis and the narcotics was taken into possession vide recovery memo. (Exh.PA). Case was registered against the appellant. After investigation she was found involved in the commission of crime and was sent to Court to face trial.
3. At the commencement of trial, charge was framed and on denial of the appellant, the prosecution produced its evidence. After examination of the appellant under Section 342, Cr.P.C., the learned Trial Court concluded that case of the prosecution was proved against the appellant, so she was convicted and sentenced as noted above.
4. Canvassing acquittal for the appellant, her learned counsel submits that the learned Trial Court has convicted and sentenced the appellant against facts and circumstance of the case; that the conviction and sentence is illegal and has no legal justification; that nothing was recovered from the appellant and if any recovery of narcotics was affected from the appellant, no weight of the same has been conducted as to ascertain the quantity of narcotics and it is not discernable as to what offence the appellant has committed and as such she is entitled to acquittal. In the alternate, learned counsel submits that allegedly 485 tablets were recovered from possession of the appellant and each tablet has its own ingredients independent of other but no sample from each tablet was collected and as such it cannot be said that all tablets recovered from the appellant contained morphine as a result of which at the most the appellant could be held liable only to the extent of recovery of said 10 tablets which by no stretch of imagination would be weighty than 10 grams so the appellant could be convicted and sentenced under Section 9(a) of the Control of Narcotic Substances Act, 1997 and that the appellant has already undergone sentence of more than one year which is more than sufficient in the circumstances of the case as appellant is more than 55 years of age and is also a sick person so she may be. Released from jail.
5. On the other hand learned Deputy Prosecutor General defends the conviction on the ground that the same was based on well-reasoned evidence produced by the prosecution and that the positive report of the Forensic Science Laboratory shows that rest of the tablets were also containing morphine and that it had never been claim of the appellant during whole trial that the narcotics recovered from her was not Morphine so the appellant was rightly convicted and sentenced and this appeal is liable to be dismissed.
6. We have heard learned counsel for the parties and have also gone through the record.
7. It is case of the prosecution in the F.I.R. And at trial through Alam Sher, Inspector that on 28.5.2010 at about 9.00 p.m. He alongwith Muhammad Hanif, Sub-Inspector (PW.1), Muhammad Akram, Mushtaq Ahmad and Muhammad Abbas, Constables and Driver Tariq Mahmood was present at Jogi Chowk Sahiwal in connection with patrolling when he received spy information about presence of the appellant outside her house selling narcotics. Upon this information, the Inspector immediately constituted a team adding a Lady Constable and conducted raid at the house of the appellant who was found present outside the house and apprehended. On personal search of the appellant by a Lady Constable, 485 tablets of morphine alongwith Rs, 650/- as sale proceed were recovered. Out of recovered quantity, 10 tablets were separated for chemical examination and the narcotics was taken into possession vide memo. (Exh.PA). He was fully corroborated by Muhammad Hanif, Sub-Inspector (PW.1) who confirmed that in his presence all the proceedings of raid had been conducted and that he had signed the recovery memo. Of narcotics. Both these witnesses were cross-examined at length but nothing material could be brought on record to create a dent in the prosecution case indicating that the appellant has been falsely implicated in this case. We have also perused the report (Ex.PD) of Forensic Science Laboratory which shows that the sample tablets contain morphine. As such we find that the prosecution has proved its case against the appellant.
8. However, second Iimb of arguments of the learned counsel for the appellant needs consideration. We have noted that it was claim of th prosecution that 485 tablets were recovered from the appellant. Alam Sher, Inspector deposed that out of the recovered quantity, he separated 10 tablets for chemical examination which were sent to the laboratory for analysis. It is commonly known and cannot be denied that each tablet contains separate ingredients and is a complete independent unit and on the basis of one component it cannot be said that the whole quantity contained same ingredients. It was requirement of law that sample ought to be taken from each individual tablet and absence of fulfilment of this requirement of law would lead to infer that the prosecution could only succeed to prove case to the extent of 10 tablets and it cannot be held that rest of the quantity also contained morphine. Reliance in this regard can be placed on the cases of Mst. Nasreen Bibi v. The State (2014 SCM R 1603), Ameer Zeb v. The State (PLD 2012 SC 380), Ghulam Khan v. The State (PLD 2005 Peshawar 180) and Shamim alias Tanvir v. The State (2006 YLR 2969).
9. Another significant aspect of this case is that the sentences contemplated in Section 9 of the Control of Narcotic Substances Act, 1997 are based on weight of the narcotics but in this case weight of narcotics was not measured so we hold that by no stretch of imagination weight of 10 tablets can be said to be more than 100 grams and thus case of the appellant at the most falls within the ambit of Section 9(a).Of the Control of Narcotic Substances Act, 1997 and the appellant should be punished under this provision of law. As per report dated 18.9.2013 of the Superintendent of Central Jail, Sahiwal the appellant had served out one month and five days of her substantive sentence meaning thereby that till date i.e, 30.10.2014 the appellant has served out more than one year and two months sentence. The appellant is more than 55 years old widow and as per report of jail doctor she is a sick lady. She has been defending her case since long and has thus suffered the agony of trial for the last more than four years as such we think that sentence of imprisonment already undergone by her would be sufficient to meet the ends of justice.
10. In view of what has been noticed and discussed above, conviction and sentence of the appellant under Section 9(b) of the Control of Narcotic Substances Act, 1997 is set aside and she is instead convicted under Section 9(a) of the said Act and accordingly punished to a sentence already undergone. The amount of fine awarded by the learned Trial Court is also reduced to that of Rs, 5000/- and in default thereof to undergo 15 days' S.I. With this modification in the sentence, the appeal is dismissed. Sentence reduced.