Asjad Javaid Ghural, J.--Through this appeal under Section 48 of the Control of Narcotic Substances Act, 1997 appellant Tanveer Ahmad alias Peeru has challenged the vires of judgment dated 06.02.2018 passed by the learned Additional Sessions Judge, Layyah in case FIR No, 198 dated 28.04.2017, in respect of an offence under Section 9-C of The Control of Narcotic Substances Act, 1997; registered at Police Station, City Layyah whereby he was convicted and sentenced under the aforementioned offence to the rigorous imprisonment for four years and six months with the fine of Rs. 20,0001- and in default thereof to further undergo simple imprisonment for five months. The benefit of Section 382-B, Cr.P.C. was extended to the appellant.
2. The precise allegation against the appellant, as narrated in the crime report (Ex.PD) is that on 28.04.2017 at about 5:50 p.m. complainant Rashid Munir, SI (PW-3) received a tip-off, constituted a raiding party, conducted raid at the entrance gate of Ahmad City and apprehended a person, who subsequently disclosed his name as Tanveer Ahmad alias Peeru (appellant) on the pointation of the spy informer. He was carrying a shopper bag containing charas weighing 165-grams alongwith the sale-proceed of Rs. 640/-. The complainant r separated sample of 58.25 grams for analysis, sealed the sample as well as the remaining narcotic substance and took the same into possession vide recovery memo. Ex.PA.
3. Muhammad Rashid Munir Wahla, SI (PW-3)/complainant drafted complaint (Ex.PD) on the same day and sent the same to the police station for the registration of case, he had separated 58.25 gams sample parcel, sealed and took the same into possession alongwith the remaining narcotic substance (P-1) and the sale proceed of Rs. 640/(P-2/1-10) vide recovery memo. Ex.PA. He inspected the place of occurrence, prepared unsealed site-plan (Ex.PC) and recorded the statements of witnesses under Section 161, Cr.P.C. He handed over the case property to Zafar Iqbal, Moharrir (PW-2) on the same day for safe custody. On 3.5.2017, the Moharrir handed over the sample parcel to the Investigating Officer for its onward transmission into the office of Punjab Forensic Science Agency.
4. At the commencement of trial, learned trial Court had framed a charge against the appellant to which he had pleaded not guilty and claimed to be tried.
5. The prosecution had produced 04-witnesses besides the report of Punjab Forensic Science Agency (Ex.PE). The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted the allegations leveled against him, he did not opt to make statement under Section 340(2), Cr.P.C., however he had relied on documents Ex.DA to Ex. DH in his defence.
6. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant as stated above, hence this criminal appeal.
7. Besides pointing out other minor contradictions in the statements of the prosecution witnesses, learned counsel for the appellant confines his argument to the extent that it is a case of offence under Section 9(b) instead of Section 9(c) of the Act ibid and has referred the statement of Muhammad Rashid Munir Wahla, SI/complainant/Investigating Officer (PW-3) that he had separated the sample of 58.25-grams for analysis whereas the report of Punjab Forensic Science Agency (Ex.PE) shows that the weight of sample as 44.44 grams instead of 58.25 grams and, thus, the quantity of total recovered narcotic substance, due to the defective scale, was in fact much less than 1160-grams i,e, the quantity shown to be recovered from the appellant by the Investigating Officer.
8. On the other hand, learned Law Officer contends that the prosecution has been succeeded to prove the charge against the appellant beyond shadow of reasonable doubt by producing cogent, convincing and confidence inspiring evidence; that all the prosecution witnesses are police officials having no or previous grudge to make false statement against the appellant. He, however, states that there may be a possibility of defective weight but it might be the result of time consumed in the submission of parcel for analysis.
9. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and perused the record with their able assistance.
10. The appellant was booked, tried and convicted in the aforementioned case for keeping 1160- grams of charas. Muhammad Rashid Munir Wahla, SI (PW-3) weighed the recovered narcotic substance, separated 58.25 grams, sealed the same alongwith remaining narcotic substance into respective parcels and handed it over to the Moharrir. The complainant had prepared the recovery memo. Ex.PA duly attested and signed by Wali Khan 718/C (PW-1) and Muhammad Iqbal 757/HC.
He also prepared visual site-plan of the place of occurrence and recorded the statements of witnesses under Section 161, Cr.P.C. He handed over the case property to %afar Iqbal, Moharrir on the same day, who further handed over the sample parcel to the complainant on 03.05.2017 for its onward transmission to the office of Punjab Forensic Science Agency, Lahore wherein it was deposited on 4.5.2017 for analysis and the report of said Agency (Ex.PE) was received with positive result. All the aforesaid witnesses. had demonstrated unanimously with regard to the mode and manner of the arrest of the appellant and then the recovery of narcotic substance from his exclusive possession. Wali Khan, constable, being member of the raiding party as well as the witness for the recovery of narcotic substance from the appellant, had supplemented the complainant viz-a-viz the appellant's arrest and the recovery of narcotic substance from his personal possession, which was followed by the consistent statement of Zafar Iqbal, HC/Moharrir, who had kept the case property in the Malkhana for safe custody and then got the sample parcel deposited into the office of Punjab Forensic Science Agency intact. The positive report of Punjab Forensic Science Agency (Ex.PE) provides full corroboration to the ocular account. All the prosecution witnesses are police officials and during cross-examination, the defence remained fail to point out any malice, or ulterior motive on their part to falsely implicate the appellant in this case. The prosecution has successfully proved the charge against the appellant to the hilt beyond any shadow of reasonable doubt.
11. We have observed that the complainant had separated 58.25 grams sample from the recovered narcotic substance at the spot, sealed the same into a parcel and then it was deposited in the office of Punjab Forensic Science Agency intact but the report of said office (Ex.PE) shows that the examined parcel was containing the weight of 44.44 grams, which is less than the weight of aforesaid claimed separate parcel and thereby raised a serious question about the accuracy of scale used by the Investigating Officer at the spot. The identical proposition has been dealt with by this Court in Muhammad Yasir's case (2017 P.Cr.L.J. 1077) and it has been prescribed that the percentage of deficiency found in the scale shall be calculated for the total recovered narcotic substance as well. Keeping in view the percentage of deficiency in the weight of the sample, the actual weight of the recovered narcotic substance would be 884.98 grams i,e, 23.70 % less than the alleged weight, which falls under the ambit of Section 9(b) of the Act ibid.
12. In view of what has been discussed above, this appeal is without any merit, the same stands dismissed, however the conviction of the appellant is converted from Section 9(c) to Section 9(b) of, the Act ibid and as per sentencing policy prescribed in Ghulam Murtaza's case (PLD 2009 Lahore 362), the appellant is sentenced to the rigorous imprisonment for one year and nine months with a fine of Rs. 13,000/-and in default thereof, to further undergo simple imprisonment for four months and 15-days: He shall be given benefit of Section 382-B, Cr.P.C.