' MIR HAZAR KHAN KHOSO, C.J.--- This appeal is directed against the judgment dated 21-1-1993 passed by the learned Additional Sessions Judge, Rawalpindi, whereby the appellant was convicted for offence under section 489-C, P.P.C. And under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced as under:--
(i) Under section 489-C, P.P.C. To suffer R.I. For five years and fine of Rs,10,000, in default whereof to undergo R.I. For one year more.
(ii) Under Article 4 of the Order to suffer imprisonment for life, thirty stripes and fine of Rs,20,000, in default whereof to undergo R.I. For two years more.
2. It is case of the prosecution that on 9-2-1991 at about 3-00 p.m. The appellant was apprehended by Muhammad Suglain, S.1. And other police staff of Police Station Cantt., Rawalpindi. From his possession 97 forged counterfeit of one hundred denomination currency notes and one kilogram of heroin were recovered. 11 grams of heroin was taken as a sample from the lot and sent to the Chemical Examiner, whose report is in positive. After taking second 10 grams of heroin the rest of the heroin was destroyed by the authorities after having taken permission from Sub-Divisional Magistrate. The recovered currency notes were certified to be counterfeit by the Chief Manager, State Bank of Pakistan. However, after usual investigation the appellant was sent up for trial before the Court of the learned Additional Sessions Judge, Rawalpindi, where he did not plead guilty to the charge and claimed trial. In all seven witnesses, P.W.1 Fida Hussain, S.1,, P.W.2 Muhammad Yousaf, A.S.I., P.W.3 Muhammad Azad, Constable, P.W.4 Abdul Rauf, A.S.I., P.W.5 Ch. Muhammad Aslam, M.I.C., P.W.6 Hakam Khan, Constable and P.W.7 Muhammad Suqlain, S.I., were examined by the prosecution.
3. In his statement recorded under section 342, Cr.P.C. The appellant denied the allegation.
However, he neither examined himself on oath nor produced any witness in defence. The learned trial Judge found the appellant guilty for offence under section 489-C, P.P.C. And Article 4 of the Order and sentenced him for the same as mentioned hereinabove. Hence this appeal.
4. Mr. Muhammad Munir Khan, Advocate, appeared for the appellant and Ch. Muhammad Ibrahim, Advocate, appeared for the State.
5. The learned counsel for the appellant has raised following two points in support of his appeal:--
(i) The Chief Manager, State Bank of Pakistan, was not examined, hence it was not proved that the currency notes recovered from the appellant were counterfeit.
(ii) The contraband material was destroyed without permission of the trial Court, hence the appellant cannot be held guilty for the offence of being in possession of more than 11 grams of heroin.
6. The learned counsel for the State, so far the first contention is concerned, conceded that examination of the Chief Manager of the State Bank of Pakistan was necessary, hence conviction of the appellant under section 489-C, P.P.C. Cannot be maintained. However, he disputed the second contention of the learned counsel for the appellant.
7. It may be pertinent to observe that the certificate issued by the Chief Manager, State Bank of Pakistan, is not immunized by section 510, Cr.P.C. Hence examination of the Chief Manager before the trial Court was necessary. For the sake of convenience section 510, Cr.P.C. Is reproduced hereunder:-- "510. Report of Chemical Examiner. Serologist. Etc..--- Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, or any Serologist, Finger-print Expert or Fire-arm Expert appointed by Government, or of the Chief Chemist of the Pakistan Security Printing Corporation Ltd. Upon any matter or thing duly submitted to him for examination or analysis and report in the course of proceeding under this Code, may, without calling him as witness, be used as evidence in any inquiry, trial or other proceeding under this Code: ' Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made."
8. On face of it without recording of evidence of the Chief Manager the certificate issued by him has not been legally brought in evidence. The notes as such were not proved to be forged or counterfeit ones. We as such are inclined to set aside the conviction and sentences of the appellant recorded against him under section 489-C, P.P.C. And acquit him of the charge.
9. Regarding the second point, it may be observed that under new amendment brought in provisions of section 516-A, Cr.P.C. a trial Court is competent to allow the authorities for destruction of the contraband material after taking samples from it. The amendment made in section 516-A, Cr.P.C. Reads as under:-- "Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930, the Customs Act, 1969 (IV of 1969), Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979) or any other law for the time being in force; the Court may either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit fbr safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf: ' Provided also that such samples shall be deemed to be whole of the property in an inquiry or Court."
10. No doubt, the permission to destroy the contraband material was not sought from [be trial Court, but, however, it was taken from Sub-Divisional Magistrate. This procedure adopted for destruction of the contraband material may be irregular, but cannot be said illegal one, hence no benefit can be extended in favour of the appellant in that respect. The learned trial Judge has squarelly dealt with the situation in para. 12 of his judgment, a part thereof is reproduced hereunder:-- "But in the present case formal permission has not been obtained from this Court and the Illaqa Magistrate has destroyed heroin under his control and supervision after preparing a sample of 10 grams of heroin P.1. In my view this irregularity on the part of Illaqa Magistrate does not vitiate his proceedings regarding the destruction of case property and is of no benefit to the accused. If for argument's sake, the quantity of heroin destroyed by the Illaqa Magistrate is excluded from consideration, even then there remains 21 grams of heroin (11 grams heroin separated for chemical analysis on the day of recovery and 10 grams heroin P.1 separated by the Illaqa Magistrate), the recovery of which from the accused is fully proved by P.W.6 and P.W.7."
11. To us also the ground taken by the learned counsel for the appellant does not seem to be convincing and is repelled accordingly. Besides, the conviction of the appellant was not challenged on any other ground, hence we are inclined to maintain his conviction for offence under Article 4 of the Order, but reduce his sentence of imprisonment for life to R.I. For ten years, thirty stripes to ten stripes and fine from Rs,20,000 to Rs,10,000, in default whereof to suffer R.I. For one year more. The appellant is also entitled to the benefit of section 382-B, Cr.P.C. The appeal stands disposed of accordingly.