' MUHAMMAD FARRUKH MAHMUD, Noor Muhammad son of Ahmad Din, appellant, was tried in case F.I.R. No,189 registered at Police Station Faridnagar, Pakpattan Sharif, on 1-10-2000, for offences under section 9(b) of the Control of Narcotic Substances Act, 1997 read with Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. Vide judgment, dated 20-4-2002, the learned Sessions Judge, Pakpattan Sharif, convicted the appellant under section 9(b) of the Control of Narcotic Substances Act, 1997 (hereinafter referred CNSA, 1997) and sentenced him to undergo rigorous imprisonment for 3 years. A fine of Rs,10,000 was also imposed upon the appellant, in default thereof, the appellant was to suffer further simple imprisonment for three months. Benefit of section 382-B, Cr.P.C. Was extended to him.
3. Feeling aggrieved, the appellant has challenged his conviction and sentence by filing the instant appeal.
4. According to F.I.R. Exh.P.B./1, the appellant who was under police custody in lieu of a case registered on the same date relating to the recovery of narcotics was searched and Charas weighing 300 grams was recovered from the fold of his trousers. Cash of Rs,70 was also recovered from the pocket of the shirt of the appellant. The recovered Charas was taken into possession vide memo. Exh.P.A. And thereafter the complaint Exh.P.B. Was drafted on the basis of which the formal F.I.R. Was registered.
5. After investigation the case was sent up for trial. During trial the prosecution produced four witnesses to support its case and after submitting the report of Chemical Examiner Exh.P.D. Closed its case. P.Ws.1 and 2 appeared as recovery witnesses. P.W.2 also stated about the registration of the case and the investigation. P.W.3 was formal in nature. P.W.4 Muhammad Riaz stated about the depositing of the sealed parcel in the office of the Chemical Examiner.
6. The appellant in his statement under section 342, Cr.P.C. Stated that he was Sunni while S.H.O.
P.W.2 was Ahle Hadis, therefore, there was some altercation between him and the S.H.O. At Darbar Baba Farid and resultantly the appellant was roped in a false case. Neither any defence witness was produced nor he made any statement under section 340(2), Cr.P.C.
7. The learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case against the appellant beyond doubt.
8. Conversely, the learned counsel appearing on behalf of The State has argued that the appellant was rightly convicted.
9. We have heard the learned counsel for the parties and gone through the record. We have noticed that prior to the instant case the appellant was involved in another case relating to the recoveries of heroin vide F.I.R. No,188 of 2000. P.W.2 admitted that the time lapsed in recovery of heroin leading to the registration of the earlier case and recovery of Charas, which made basis for the registration of the instant case was hardly minutes or so. On the same date, same place and almost at the same time heroin and Charas were recovered from the appellant, both fell within the definition of narcotics. In these circumstances, the registration of another case (instant case) was unjustified and it appears to be an over play by the police.
10. As two cases have been carved out after the recovery of narcotics from the appellant at the same time and the appellant has already been convicted in lieu of case F.I.R. No,188 of 2000 (in which his appeal has already been dismissed), the appellant cannot be convicted twice for the same offence, in the light of section 403, Cr.P.C. Resultantly, we allow this appeal, set aside the conviction and sentence of the appellant recorded by the learned Sessions Judge, Pakpattan Sharif in case F.I.R. No,189 of 2000. The appellant is hereby acquitted of the charge. He would be released from jail forthwith, if not required in any other case.