Ch. Mushtaq Ahmad, J.--Appellant Hazrat Ali Rehman was tried by learned Additional Sessions Judge/Judge, Special Court (CNS), Khushab in case FIR No. 101 dated 16.3.2018 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Khushab for the recovery of 1080 grams Charas from the possession of appellant.
2. On conclusion of trial vide judgment dated 7.9.2019 he was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997, PPC and sentenced to 4 Years R.I. with fine of Rs. 20000/- and in the event of default to undergo further simple imprisonment for five months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Feeling aggrieved by that judgment appellant has preferred this appeal.
3. FIR (Exh.PC) was registered on complaint (Exh.PB) of Muhammad Nawaz, S.I. (PW-1) alleging therein that on 16.3.2018 at 1.50 p.m. he alongwith five other police officials was on patrolling duty on Mobile-II driven by Muhammad Sarwar 3/DL near Kath Chowk, Khushab where he received spy information that a suspicious person was standing at Pully Sabir Abad and if raid is conducted he can be apprehended. On this information complainant alongwith his team raided at the said place and found a person who subsequentl y disclosed his name as Hazrat Rehman Ali S/o Gul Rehman, resident of Mauza Takht Nusrati, District Karak (KPK). On seeing the police party accused tried to flee away but he was apprehended and from his personal search Charas weighing 1080 grams was recovered. Out of which 54 grams substance was separated for sending it to the office of PFSA, Lahore for analysis purpose. Besides this, police also recovered cash Rs. 12000/- from the accused vide recovery memo.
Exh.P A.
4. Investigation of this case was conducted by Umer Farooq, S.I. (PW-5). On completion of investigation report under Section 173, Cr.P.C. was submitted before the trial Court where appellant was charged sheeted on 9.6.2018.
He pleaded not guilty and claimed trial. In order to prove charge against the appellant prosecution got examined five witnesses besides report of Punjab Forensic Science Agency , Lahore (Exh.PE/1). Thereafter statement of appellant was recorded under Section 342, Cr.P.C. On completion of trial he was convicted and sentenced, as mentioned in the opening paragraph of this judgment.
5. At the very outset learned counsel submitted that conviction recorded by learned trial Judge under Section 9(c) of Control of Narcotic Substances Act, 1997 was not sustainable, as case of appellant was covered by law laid down in Ameer Zeb's case because recovered substance was in different pieces as per statements of PW-1 complainant Muhammad Nawaz, S.I. Learned counsel argued that in that eventuality Section 9(a) of CNSA, 1997 at the most could be invoked. However , learned Deputy Prosecutor General has opposed this contention on the grounds that contraband material was recovered from the appellant and that prosecution has proved the charge against the appellant beyond reasonable doubt hence, impugned judgment is not open to any exception. Prays that this criminal appeal may be dismissed.
6. Heard. Record perused.
7. In order to prove charge prosecution produced five witnesses in all. Out of them PW-1 Muhammad Nawaz, S.I. was complainant of FIR (Exh.PC) whereas PW-2 Muhammad Irshad 305/C was marginal witness to recovery memo. (Exh.P A) of contraband charas. PW-5 Umer Farooq, S.I. was Investigating Officer of this case. While appearing before Court they remained consistent on all material points qua date, time and place of recovery .
However , from the contents of First Information Report (ExkPC) it is not clear that recovered contraband charas was in what shape. This fact was clarified by Muhammad Nawaz, complainant (PW-1) in cross-examination while stating as under: The recovered charas was in two pieces. It is correct that I had not mentioned the shape of recovered charas in my complaint Exh.PB.'
However , PW-2 Muhammad Irshad 305/C the other recovery witness in answer to the same question stated that recovered charas was in one piece in shape of one slab.
8. The report of Punjab Forensic Science Agency (Exh.PE/1) reveals that one sealed parcel containing approximately 54 grams of suspected charas was received on 26.3.2018 in the Lab through Umer Farooq, S.I (PW- 5).
9. From the above it is clear that sample parcel of Charas prepared by the complainant (PW-1) was not a representative sample of entire bulk. It has been observed that allegedly recovere d charas was comprising upon two pieces and 54 grams was allegedly separated as sample, however , it has not been got clarified by the prosecution that what was the weight of each piece. In this backdrop there is no option left except to take into consideration only that quantity of charas for the purpose of conviction and sentence, which has been received through sealed parcel of sample by the Punjab Forensic Science Agency , Lahore and it was 54 grams Charas .
10. In Ameer Zeb's case reported as PLD 2012 SC 380 their Lordships held that where any narcotics substance is recovered in the shape of different packets, slabs, wrappers, it is necessary that separate sample parcel be prepared from each piece otherwise quantity of narcotic substance is to be considered against accused to the extent of sample which was taken and sent for chemical analysis. On prosecution's own showing one sample of 54 grams contraband material was separated from the recovered substance which on analysis was found as Charas vide Chemical Examiner report (Exh.PE/1). So, in the light of Ameer Zeb's case appellant could be held responsible for the recovery of only 54 grams charas which offence falls within the ambit of Section 9(a) CNSA, 1997 and its punishment as per Ghulam Murtaza's case (PLD 2009 Lahore 362) is 09-Months R.I. with fine of Rs. 5000/- and in lieu of default of payment thereof to undergo further simple imprisonment for 21/2 months. As per record appellant remained behind the bars since registration of F.I.R i.e. 16.3.2018. He was convicted on 7.9.2019 and if period of his imprisonment is calculated, he has already served out more than one year and ten months imprisonment.
11. In the above backdrop, while modifying conviction of the appellant from the offence u/S. 9(c) of CNSA, 1997 to Section 9(a) of CNSA, 1997 we reduce his sentence, to the period of 09-Months R.I. which has already been served out by him. The amount of fine is also reduced from Rs. 20,000/- to Rs. 5000/- and in the event of default thereof to undergo simple imprisonment for two and half months which sentence has also been served out by the appellant. He shall be released from jail forthwith, if not required in any other case.
12. With the above modification in conviction and sentence of the appellant the appeal in hand is dismissed.