2014 PLP 1087 (YLR)

SHAUKAT ALI MEMON, J.

Upon recovery of 110 grams of Charas, the appellant was arrested in Crime No.30/2005, Police Station Pangrio, under section 9(b) of C.N.S Act, 1997 and was challaned before Special Judge Narcotic Badin. The Special Court after regular trial convicted the appellant for the stated offence in Special Case No.101 of 2005 and sentenced him to undergo R.I for one year and to pay fine of Rs.10,000 and in default thereof to suffer R.I. for one month more. The appellant as well as his counsel at the very outset stated that in case this Court, while maintaining the conviction, if reduces the sentence to one already undergone, the appellant would not press the instant appeal. We with the assistance of learned counsel for the appellant and Deputy Prosecutor-General Sindh have scrutinized the record and have found out that 110 grams of charas in the shape of small and big pieces was recovered from the possession of appellant, out of which only 10 grams of Charas was sent for chemical examination. Nowhere it is mentioned that sample for chemical examination was drawn from each and every piece of Charas, recovered from the possession of the appellant enabling the Court to fix the quantity represented by such sample. Anyhow, the sample drawn for chemical examination represents the recovery only to the extent of 10 grams. We are guided by the judgment of apex court in Ameer Zeb's case (PLD 2012 SC 380) and are of the view that the appellant could not have been convicted for an offence under section 9(b) but under section 9(a) of the Control of Narcotic Substances Act, 1997 for the quantity of charas which was sent for chemical examination. We have further seen the jail roll and have found that the appellant has served out the sentence for approximately four months and 18 days including remission. Though the punishment fixed for the recovery of Charas upto 30 grams as prescribed in Ghulam Murtaza's case reported as PLD 2009 Lahore 362, which was upheld by the apex Court in the case of Ameer Zeb (Supra), is R.I. for 6 months and fine of Rs.3000/or in default S.I. for 2 months, but looking to the age of the appellant, who is more than 60 years of age with no previous conviction record and has undergone agony of the pendency of the appeal since 2006, we feel no hesitation to accede the request of the appellant to the extent of reducing the sentence to one already undergone. Learned Deputy Prosecutor General Sindh has also recorded no objection in view of reported case-law. For the foregoing reasons, we while dismissing this appeal and maintaining conviction, reduce the sentence awarded to the appellant to one already undergone, however, subject to payment of fine of Rs.2000 and in default thereof he shall undergo S.I. for one month. He is on bail. His bail bond is cancelled and surety discharged. Let a copy of this judgment be communicated to the Superintendent, Central Prison, Hyderabad for his record. AG/G-8/Sindh Sentence reduced.