This appeal was sent from jail by Abid Ali son of Muhammad Moosa Lohar against his conviction by the learned Sessions Judge, Mirpurkhas, by judgment dated 11-1-1995 passed in Sessions Case No. 197 of 1992 convicting the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentencing him to 2 years' R.I., 5 stripes and a fine of Rs.5,000 and in default in the payment of fine to suffer further R.I. For 6 months. Benefit of "section 382-B Cr. P.C. Was extended to the appellant. I have heard Mr. S.M. Sayedain Zaidi, learned counsel for the appellant and Mr. Agha Zafir Ali, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.
2. According to the prosecution version, on 6-10-1992, on his personal search, 30 Puris containing powder were recovered from the possession of the appellant and the .Gross weight of 30 Puris, including the powder contained therein, came to 30 grams. The head of the search party P. W. 1, S.I.
Tariq Mahmood, Incharge Police Post Mirwah of Police Station Tehsil Mirpurkhas, did not mix powder contained in 30 Puris and then taking the sample for chemical analysis but he separately sealed 2 Puris and remaining 28 Puris with powder were sealed separately and only 2 Puris with powder were sent for chemical analysis. According to Chemical Examiner's report dated 22-11-1992, the net weight of the powder without two wrappers came to 0.730 grams (which is less than 10 grams).
3. According to learned counsel for the appellant, as only 2 Puris with powder contained had been sent for chemical examination and sample had not been taken after mixing the entire contents of all the 30 Puris, there is no legal evidence on record that the powder in rest of the 28 Puris was also heroin. It may be observed that, according to the Chemical Examiner's report, the powder contained in the 2 Puris sent for chemical analysis was found to be heroin. In the circumstances, learned counsel contends that, at best according to the prosecution, the appellant could be convicted of possession of 0.730 grams of heroin, maximum sentence for which 'would be 2 years.
According to learned counsel, the appellant has already remained in custody for more than one year and the case is of 1992 and as such lenient view may be taken and the sentence may be appropriately reduced.
Mr. Agha Zafir Ali, learned counsel for the State concedes that, in the circumstances, conviction could only be recorded for possession of 0.730 grams of heroin and he does not oppose the request for reduction of sentence.
4. Learned counsel for the appellant is correct in his submission that, in the circumstances, where the powder in 30 Purig had not been mixed and then sample taken by the seizing officer from the Puris containing the powder for chemical analysis and keeping the rest of the 28 Puris with powder unexamined, under the law, the appellant could only be convicted for possession of heroin in respect of which the positive report from the Chemical Examiner is available. The appellant, therefore, could only be convicted for possession of 0.730 grams of heroin and could not be convicted in respect of possession of powder contained in the rest of 28 Puris which were not subjected to chemical analysis
5. As a result the conviction of the appellant is modified to convictions under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 for possession of 0.730 grams of heroin. It is informed by the Reader that, according to the record available, the appellant remained in custody for over 4 months during his trial and then he has remained in custody since 11-1-1995' after his conviction which comes to about 10 months. In all, the appellant has remained in custody, first as an under trial prisoner and then as a convict, for a period now exceeding 14 months. If the remissions to which he is entitled under the jail rules are taken into consideration, he will be completing nearly one and a half years in custody. The case is of 1992. He has already suffered over three years of litigation. The maximum sentence for possession of heroin weighing up to 10 grams is two years. '
6. In the circumstances, the sentence is reduced to the sentence already` undergone by the appellant which will include the period he is required to undergo for non-payment of fine. The sentence of stripes is set aside.
As the appellant has already undergone his sentences, it is directed that he be released forthwith if not required in any other case.
Jail Criminal Appeal No.26-I of 1995 stands disposed of in the above terms.