Farooq Haider , J.:- This appeal has been filed against the judgment dated 07.05.2018 passed by the learned Additional Sessions Judge, Tandlianwala, whereby in case arising out of F.I.R No.277/2017 dated 25.07.2017 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Mamokanjan, Tandlianwala (Ex.PB), the learned trial Court has convicted and sentenced the appellant as under:- under Section 9(c) of Control of Narcotic Substances Act 1997 to 04 years & 06 months R.I with fine of Rs.20,000/- and in default of payment thereof the appe llant was directed to further undergo S.I for 05 months. Benefit of section 382-B Cr .P.C. was also extended to the appellant.
2. Briefly , the accusation levelled in the complaint Ex.PD against the appellant, on the basis of which, above mentioned FIR was chalked out, is that on 25.07.2017 Faiz Muhammad, ASI/complainant (PW-4) alongwith Ali Nawaz TASI, Tanvir Ahmad 6857/C, Mazhar Ali 6759/C, Muhammad Ameen HC/5560 was present at Chungi No.5, when on the basis of spy information, a raid was conducted at Pul Saim Nehar and Nosher alias Nosha (appellant) was apprehended by the police party; on checking, a shopper containing 1050 grams of Charas alongwith amount of sale Rs.750/- was recovered from the possession of the accused . A separate parcel of Charas weighing 52.5- grams, out of the recovered charas, for Chemical Analysis was prepared.
After investigation, challan report was sent to Court against the appellant; charge was framed against him, to which he pleaded not guilty; prosecution produced its evidence. The learned trial Court, after recording the statement of the appellant under section 342 Cr.P.C. and hearing learned counsel for the parties, passed the impugned judgment whereby the appellant was convicted and sentenced as mentioned above.
3. At the very outset, learned counsel for the appellant has submitted that prosecution could not prove safe custody of allegedly recovered contraband i.e. charas and thus, has challenged the conviction and sentence recorded against the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997. He has further submitted that prosecution could only prove its case against the appellant to the extent of representative sample taken from the allegedly recovered charas and received by the Punjab Forensic Science Agency , Lahore, which attracts Section 9 (a) of the Control of Narcotic Substances Act, 1997.
4. On the other hand, learned Deputy Prosecutor General has opposed the contentions raised by learned counsel for the appellant and has supported the impugned judgment.
5. After hearing learned counsel for the parties and going through the record, it has been noticed by us that although it is case of the prosecution that 1050-grams of charas was allegedly recovered from the possession of accused/appellant and representative sample comprising upon 52.5-grams was separated from the same, however , safe custody of remaining allegedly recovered charas/case property has not been proved by the prosecution. In this regard, statement under Section 161 Cr.P.C. got recorded by Altaf Hussain 5662/HC/Moharrir (PW-2) is relevant, which has been got exhibited as Ex.DA, and in the said statement, he categorically stated that parcel of sample of charas weighing 52.5 gram was handed over to him on 25.07.2017, he kept the same in Maalkhana and thereafter on 01.08.2017 handed over the same to Allah Ditta SI (PW-1) for onward transmission to the office of Punjab Forensic Science Agency , Lahore but he did not state in his said statement that parcel of remaining charas/case property was ever handed over to him, however , when he appeared as PW-2 during trial, then he tried to improve his statement in this regard. He was categorically cross examined in this regard and relevant part is reproduced: - "It is incorrect to suggest that I did not depose about two sealed parcels which were handed over to me in my statement u/s 161 Cr .P.C. Confronted with Ex.DA where only one parcel is mentioned " (emphasis added)
Said statement of Moharrir i.e. Ex.DA has been also got duly proved from its scribe i.e. Allah Ditta SI (PW-1) and in this regard relevant portion of the statement of PW -1 is being reproduced: - "It is correct that I got recorded statement u/s 161 Cr.P.C. of Altaf Hussain Muharrar Ex.DA. I did not record statement u/s 161 Cr.P.C. of Faiz Muhammad ASI/complainant regarding handing over of case property to Muharrar .
It is incorrect that Altaf Husain Muharrar stated before me that only sample parcel was handed over to him by the complainant. Confronted with Ex.DA where it is so recorded " (emphasis added)
Perusal of aforementioned statement/evidence clearly establishes that only one parcel of sample was handed over to the Moharrir, which was transmitted and got deposited in the office of Punjab Forensic Science Agency, Lahore and second parcel comprising upon remaining allegedly recovered charas/case property was not handed over to him and he has tried to introduce dishonest improvement in this regard. It is settled principle of law that fact introduced by witness through dishonest improvement during his evidence before Court does not carry any legal value rather such conduct raises eyebrows regarding evidentiary value of the statement of such witness. Reliance is placed upon the case of "Syed Saeed Muhammad Shah and another versus The State"
(1993 SCMR 550), the relevant portion whereof is reproduced below: - "27. Secondly , statements of the witnesse s in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir Zaman v. Mehboob and others (1985 SCMR 685) that testimony of witnesses containing material improvements are not believable . Reference can also be made to the cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and others v. The State (1971 PCr.LJ 229) and Fazla and another v . The State ( PLD 1960 Lah. 373 )"
Guidance can also be sought in this regard from the dictum laid down in the case of "Muhammad Rafique and others versus The State and others" (2010 SCMR 385) and relevant portion from page 396 is hereby reproduced below:- "This Court in the case of Saeed Muhamm ad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance "
In view of the same, safe custody of remaining alleged recovered charas i.e. case property could not be proved by the prosecution and same cannot be taken into consideration for the purpose of conviction. In this regard, reliance can be placed upon the case of "Ikramullah and others versus The State" (2015 SCMR 1002 ). Relevant portion of paragraph No.5 of the said judgment is being reproduced: - In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit" (emphasis added).
In this regard, further guidance can also be sought from the case of "The State through Regional Director ANF versus Imam Bakhsh " (2018 SCMR 2039 ).
6. In view of the above, we have reached at the conclusion that case of the prosecution against the appellant to the extent of narcotic received through sealed parcel by the Punjab Forensic Science Agency, Lahore, i.e. 55.63-grams has been proved for the purpose of conviction and sentence to appellant. In this regard, guidance can be sought from the case of "Ameer Zeb versus The State" (PLD 2012 SC 380) and "Khuda Bakhsh vesus The State" (2015 SCMR 735).
7. Resultantly, while taking guidance from the case of "Ghulam Murtaza and another versus the State" (PLD 2009 Lahore 362), conviction and sentence recorded under Section 9(c) of the Control of Narcotic Substances Act, 1997, is converted to conviction under Section 9 (a) of the Act ibid and he is sentenced to nine months rigorous imprisonment with fine Rs.5000/- and in case of default thereof, he shall undergo S.I. for two months and fifteen days, benefit under Section 382-B Cr.P.C. is also extended to him.
8. With the above modification in conviction and sentence awarded to the appellant, instant appeal is dismissed. It is clarified that if the appellant has already undergone modified sentence, then he shall be released forthwith, if not required in any other case.