Syed Shahbaz Ali Rizvi, J: - Samar Hayat, appellant, through this appeal, has assailed the judgment dated 03.10.2018 passed by the learned Addl. Sessions Judge/Judge Special Court C.N.S, Shahpur in case FIR No.52 dated 01.03.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Jhawarian District Sargodha whereby , he was convicted under Section 9(c) of the said Act and sentenced to rigorous imprisonment for seven years and four months with fine of Rs.33,000/- and in default thereof, to undergo simple imprisonment for seven months. He was, however , extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
2. As per prosecution case the brief facts, as disclosed by Ahmad Yar, SI/complainant (PW-3) in his complaint (Exh- PC) on the basis of which formal crime report (Exh-P A) was registered, are that on 01.03.2016 at 10.15 a.m, the appellant, when riding a motorcycle, was apprehended by the police and during his personal search, besides Rs.1000/-, sale proceeds and mobile phone 21 15 grams Charas was recovered from him.
3. After investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial court, after observing pre-trial codal formalities, framed charge against the appellant on 11.04.2016 to which he pleaded not guilty and claimed trial.
4. The prosecution produced Rab Nawaz , ASI (PW-1) Moharrer of the police station, Muhammad Ashraf, ASI/duty officer (PW-2) who, on receipt of complaint (Exh-PC), drafted formal crime report (Exh-P A), Ahmad Yar, SI/complainant (PW-3) and Haq Nawaz, ASI (PW-4), recovery witness. Haq Nawaz, ASI (PW-4) also transmitted the sample parcel to the Punjab Forensic Science Agency . Muhammad Azam, SI (PW 5) is the investigation officer of the case. The learned Assistant District Public Prosecutor gave up Abdul Rehman 1896/C (since dead), tendered report of Punjab Forensic Science Agency , Lahore (Exh-PF) in evidence and closed the prosecution evidence.
5. After completion of prosecution evidence, the statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he refuted the allegations levelled against him and professed his innocence. The appellant deposed that he had falsely been implicated in this case by the complainant due to previous grudge as his father was taken by the police and his brother Sikandar Hayat moved a petition under Section 491 of the Code of Criminal Procedure, 1898 upon which, his father was recovered and produced before the learned Sessions Judge, Sargodha on 22.12.2015 who was released and the District Police Officer, Sargodha was directed to conduct inquiry against the police officials Haq Nawaz, ASI and Abdul Rehman PW (since dead).
He did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him however , he did produce certified copy of petition moved under Section 491 of the Code of Criminal Procedure, 1898 (Exh-DA) and order thereon (Exh-DB) and copy of judgment of his acquittal (Exh-DC) in his defence.
6. The learned trial Court vide its judgment dated 03.10.2018, found the appellant guilty , convicted and sentenced him as mentioned above.
7. After arguing at a little length, learned counsel for the appellant while hinting at the relevant part of the cross examination of Ahmad Yar, SI/complainant (PW-3), maintains that he would be satisfied if the conviction and sentence of the appellant is modified in the light of the statement of said Ahmad Yar, SI/complainant who, during his cross examination, maintains that the contraband recovered from the possession of the appellant was in the form of pieces and that he separated ten grams from all the pieces.
8. Learned Deputy Prosecutor General does not contest the submission made by learned counsel for the appellant.
9. Heard. Record perused.
10. It has been observed that during his cross examination, complainant Ahmad Yar, SI (PW-3) admitted that the recovered Charas was in the form of pieces. The relevant excerpt from his statement reads as under: - "...Charas was containing some pieces. I cannot tell about the numbers of pieces. From whole pieces, the same 10 grams was separated...
It is also relevant that the learned trial court, upon the request of learned counsel for the appellant, de-sealed the case property and observed that the contraband was found in 15/16 small pieces. For the reason mentioned supra, in the light of dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases of Ameer Zeb v. The State (PLD 2012 SC 380) and Mst. Nasreen Bibi v. The State (2014 SCMR 1603 ), the appellant can only be convicted to the extent of Charas contained in the sample parcel that stands examined by the Punjab Forensic Science Agency and its report Exh-PF) is available in evidence. According to the law settled by the Hon'ble Supreme Court of Pakistan in the supra mentioned cases, the sample parcel containing 10 grams of Charas allegedly taken from different pieces of the contraband sent to the Punjab Forensic Science Agency is not to be considered a representative sample of the bulk in view of which, his conviction for the bulk of narcotic weighing 2115 grams Charas allegedly recovered is not warranted under the law. By now it is an established proposition that in the circumstances given above, the accused/appellant can only be convicted and sentenced for the possession of contraband only to the extent of sample that as per the recovery witnesses weighed 10 grams of Charas while report of the Punjab Forensic Science Agency (Exh-PF) reflects it as 10.02 grams.
11. It has also been noticed that the learned trial court has awarded enhanced sentence to the appellant because of his previous conviction in connection with case FIR No.28 dated 13.02.2015 registered for offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Jhawarian District Sargodha but the record reveals that the learned trial court has awarded said sentence to the appellant without complying with the provisions of Sections 221(7) , 265-I (1) of the Code of Criminal Procedure, 1898, and also by ignoring the requirements of Section 265-I (2) of the Code ibid. For ease of reference, both the above mentioned provisions of law are reproduced hereunder: - "221. Charge to state offence. (1) ...
(2)...
(3)...
(4)...
(5)...
(6)...
(7) Previous conviction when to be set out. If the accused have been previously convicted of any offence, is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed." (underlining for emphasis is our)
265-I . Procedure in case of previous convictions . (1) In a case where, by reason of a previous conviction the accused has been charged under Sectio n 221, sub-section (7) the Court, after finding the accused guilty of the offence charged and recording a convict ion shall record the plea of the accused in relation to such part of the charge.
(2) If the accused admits that he has been previously convicted as alleged in the charge, the Court may pass a sentence upon him according to law, and if the accused does not admit that he has been previously convicted as alleged in the charge the Court may take evidence in respect of the alleged previous conviction, and shall record a finding thereon and then pass sentence upon him according to law .
Scanning of the above reproduced Sectio n 221(7) of the Code of Criminal Procedure, 1898 manifests that to hold a convict liable to an enhanced sentence under the law because of his previous conviction, the fact, date and place of previous conviction is to be stated in the charge at any time before sentence is passed whereas, the provision of Section 265-I of the Code ibid shows that if a charge is framed again st an accused regarding his previous conviction and said accused replies to the charge in affirmative, the Court may pass a sentence upon him in accordance with law but if he replies in negative, the Court may take evidence with regard to previous conviction as alleged in the charge, record finding thereon and then sentence the accused in accordance with law. The question as to what evidence is required to prove the previous conviction of a convict has its answer in Section 511 of the Code of Criminal Procedure, 1898, that for convenience is reproduced as under:- "511. Previous conviction or acquittal how proved. In any inquiry, trial or other proceedings under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force.
(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held to be a copy of the sentence or order; or
(b) in case of conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered: together with, in each of such cases evide nce as to the identity of the accused person with the person so convicted or acquitted. "
It is also relevant to mention that in the instant case prior to awarding enhanced sentence to the convict/appellant even no question with regard to his previo us conviction was put to him during his statement recorded under Section 342 of the Code of Criminal Procedure, 1898. In this view of the matter , infliction of enhanced sentence upon the convict/appellant by the learned trial court without adopting the prescribed procedure mentioned supra is not warranted under the law .
We find it pertinent to observe here that Section 75 of Pakistan Penal Code, 1860 , does not have any nexus with the question of enhanced sentence to be inflicted under the penal provisions of Control of Narcotic Substances Act, 1997 as the legislature has confined its scope only to the extent of conviction and sentence for offences punishable under Chapter XII or Chapter XVII of Pakistan Penal Code, 1860. Hence, application of Section 75 of the Code ibid with regard to awarding enhanced sentence to a previously convicted convict of an offence punishable under any law other than Chapter XII or Chapter XVII of Pakistan Penal Code, 1860, would not be justifiable.
Taking stock of the whole discussion in preceding paragraphs, conviction and sentence awarded to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 is hereby set aside and he is convicted under Section 9(a) of the Act ibid and sentenced to rigorous imprisonment for six months with fine of Rs.3,000/- and in default thereof, to undergo simple imprisonment for two months. He is also extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
12. With the aforesaid modification in conviction and sentence of the appellant, this appeal is dismissed.