Raja Shahid Mehmood Abbasi, J. Appellant Imtiaz Abid alias Raja Munna was tried by the learned Additional Sessions Judge/Judge Special Court CNSA, Pind Dadan Khan (Jhelum), whereby the appellant was convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997 in case FIR No. 198 dated 26.07.2017 in respect of offence u/S. 9(c) of CNSA, 1997 registered at Police Station, Pind Dadan Khan and sentenced to rigorous Granting bail to an accused person does not amount to his acquittal rather his custody is handed over from State to surety, who takes responsibility to produce that accused before trial Court as and when required and summoned. imprisonment for two years with fine of Rs. 20,000/-, in default whereof, to further undergo simple imprisonment, for two months. However, the benefit of Section 382-B, Cr.P.C. was extended in his favour.
2. The brief facts as gleaned through FIR Ex.PB registered on the basis of complaint Ex.PA are that on 26.07.2017 at 02:30 PM, Muhammad Ashfaq, SI/complainant (PW.5) along with other police contingent was present near City Area Imam Bargah Qaiser Abbas in connection with patrolling/general hold-up where he received spy information that the present appellant was standing in Lorry Adda to sell charas to his customers. Upon this Information, raid was conducted and the, appellant was apprehended and upon his personal search charas weighing 1070 grams was recovered. Hence, the crime report.
3. After formal investigation, report under Section 173 of the Criminal Procedure Code, 1898 was prepared and submitted before the trial Court. The appellant was sent to face the trial. After delivering the copies of the documents in terms of Section 265-C of the Criminal Procedure Code, 1898, the trial Court framed the charge against the appellant on 10.10.2017, to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined five witnesses to bring home the guilt of accused. The prosecution gave up Muhammad Nazir, HC PW being unnecessary and after tendering in evidence report of the Punjab Forensic Science Agency, Lahore (Ex.PE) closed its evidence.
4. The statement of appellant was recorded under Section 342, Cr.P.C. wherein, he refuted the allegations levelled against him and claimed his innocence. He neither opted to make statement on oath as required under Section 340(2), Cr.P.C. nor produced any evidence in his defence.
5. After completion of evidence from both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted and sentenced him as mentioned in preceding paragraph No. 1 above.
6. At the very outset learned counsel for the appellant contends that the appellant was apprehended while in possession of contraband charas weighing 1070 grams wrapped in a polythene shopping bag and it is nowhere mentioned that the contraband was weighed with or without the wrapping material, therefore, prays for reduction of the sentence already undergone by him.
7. On the other hand, learned Deputy Prosecutor General opposed the contentions raised by the learned defence counsel for the appellant and supported the impugned judgment.
8. We have considered the matter from all angles and we are satisfied that the appellant was found involved in possessing charas mentioned above. During analysis of the sample, sent to the PFSA, Lahore, it was confirmed vide report (Ex.PE) that the recovered substance was Charas. Two witnesses namely, Muhammad Ashfaq, SI (PW.5) and Muhammad Ashraf, Constable (PW.4) have been produced by the prosecution to establish the fact of apprehension of the appellant and recovery of contraband Charas from his possession. Regarding the recovery, suffice it to say that the deposition of Muhammad Ashfaq, SI/complainant (PW.5) gaining strength from the statement of Muhammad Ashraf, Constable (PW.4) can safely be depended upon as he is not only a responsible officer but has supported the prosecution version in a straightforward manner. Both these witnesses were subjected to lengthy and searching cross examination in order to shatter the prosecution version but nothing beneficial to appellant could come out of their mouth. During the investigation carried by Muhammad Iqbal, SI (PW.3) the appellant was found fully involved in this case. It is difficult to believe that such contraband was planted to oblige the superiors. It may be remarked here that all the witnesses have remained firm and made consistent statements on material particulars and learned defence counsel for the appellant has failed to point out any discrepancy worth the name or contradiction in their statements. No or enmity has been proved on the part of these witnesses for false implication. The recovery has been proved satisfactorily and omission to fulfill the ingredients of Section 103, Cr.P.C. is not vital in view of Section 25 of the Act. In this way, the prosecution has proved its case beyond shadow of doubt. However, we, have observed that in the complaint (Ex.PA) and in the prosecution evidence it is nowhere mentioned that the contraband charas was weighed with wrapper or without wrapper, in this way, if the contraband charas was weighed along with wrapping material, it cannot be ruled out that the actual quantity of recovered contraband from the appellant was around 1000 grams or less, therefore, the case of the appellant would fall within the purview of section 9(b) of the Act ibid. Hence, the conviction of the appellant is converted from section 9(c) of the Control of Narcotic Substances Act, 1997 to section 9 (b) of Act and keeping in view the schedule provided in the case of "Ghulam Murtaza and another v. The State" (PLD 2009 Lahore 362). As far as quantum of sentence is concerned, while considering the nature, quantity of the recovered charas, which is less harmful as compared to heroin and while keeping in view the status of the appellant being first offender, he should be afforded an opportunity to mend his ways. He has already served out one year of his sentence and he also faced the agony of protracted trial coupled with incarceration, his sentence is reduced to one undergone by him. As far as sentence of fine is concerned, it is observed that under Section 9(b) of the Act sentence of fine is provided as Rs. 13,000/-, therefore, the same is reduced accordingly, failing which the appellant would suffer simple imprisonment for four months and 15 days. Since the appellant is on bail by way of suspension of his sentence, hence he is directed to pay the amount of fine of Rs. 13,000/- within two weeks, failing which the law will take its own course. At present his surety is discharged.
9. With the modification in the conviction and sentence as indicated above, the appeal is hereby dismissed. The disposal of the case property shall be as ordered by the learned Trial Court.