P L D 2004 Supreme Court 856 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

This appeal is by the leave of the Court against judgment of High Court of Balochistan, Quetta dated 1-7-2002 whereby conviction/sentence awarded to appellant under section 9(c) of the Control of Narcotics Substances Act, 1997 (hereinafter referred to as the Act of 1997) to undergo eight years R.I. with fine of Rs.20,000 and in default of payment of the fine to suffer R.I. for one year by the learned Special Judge (CNS), Quetta on 30-5-2001 has been maintained.

2. It is the case of the prosecution that appellant was found in possession of 288 rods (weighing 4 kgs.) of backed Charas on 30-3-2001 at 6-00 p.m. by Rafiullah Shah S.I./S.H.O. Police Station Kuchlak when he was travelling in a passenger bus from Gulistan towards Quetta vide F.I.R. No.33 of 2001. Four grams Charas was taken out as sample for chemical analysis. On completion of investigation, appellant was sent up to face trial before the Special Judge. As he pleaded not guilty to the charge, therefore, he was put to trial and found guilty for the commission of the offence under section 9(c) of Act 1997 vide judgment dated 13-5-2001. Conviction/sentence awarded to appellant by the trial Court has been maintained in appeal vide impugned judgment.

3. It is a jail appeal, therefore, record of the case perused with the assistance of learned State counsel carefully. It emerges there from that: vide recovery memo. Exh.P/1-A, 4 grams of Charas was taken out from total 288 rods. Nothing is available on record to show whether sample for examination by Chemical Examiner was taken our from each rod to ascertain that 288 rods were of Charas or some other commodity having resemblance with the colour of Charas like Oil Cake (Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any competent of section 9 is proved. Therefore, for such reason, Act 1997 has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. are to be followed strictly in the interest of justice, otherwise in such-like cases it would be impossible to hold that total commodity recovered from his possession was Charas. However, in given facts and circumstances of the case, it would be presumed that sample was taken out from only one rod. As far ac remaining rods are concerned, in absence of any sample taken out from them, if would not be possible to hold that they were the rods of Charas or otherwise. Therefore, taking into consideration this aspect to the case, we are of the opinion that for such reason, the case of the prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable. Thus, for the forgoing reasons, appeal is accepted, conviction and sentence awarded to appellant is set aside and he is directed to be set at liberty forthwith, if not required in any other case. M.B.A./M-140/S Appeal accepted.