2007 PLP 3080 (YLR)

REHMAT HUSSAIN JAFFERI, J.

The present appeal is directed against the judgment dated 25-8-2006 passed by the learned Special Judge (CNS), Jamshoro alias Kotri, by which he convicted the appellant for offence punishable under section 9(c) of Control of Narcotic Substances Act,. 1997, sentenced him to suffer imprisonment for life and fine of Rs.10,00;000 or in default thereof to suffer R.I. for three years with benefit of section 382-B, Cr.P.C. Brief facts giving rise to the present appeal are that on 1-6-2005 at 8.00 a.m, near Toll Plaza of Jamshoro, Sehwan Road the complainant Excise Inspector Syed Asghar Ali Shah along with his subordinate staff intercepted a .car, which was driven by the appellant. The complainant searched the car and found secret cavities under driver and passenger seats of the car. Four polythene bags and three polythene bags of heroin powder were secured from the said secret cavities. The said packets were weighing and each packet weighed one kilogram, total weight was seven kilograms. The complainant drew 50 grams from each packet as samples by preparing seven packets for sending them to Chemical Analyzer for examination and report. The samples and remaining properties were sealed, the appellant was arrested and such mashirnama was prepared. The complainant brought the appellant and the properties to the police station where he lodged the F.I.R. The police after usual investigation challaned the appellant in the Court where he was tried, convicted and sentenced as mentioned above under the. Impugned judgment. We have heard the advocate for the appellant, A.A.G. for the State and perused the record of this case very carefully. At the trial the prosecution examined two witnesses viz, complainant Excise Inspector Asghar Ali and mashir Excise Jamadar Dodokhan. They gave the same details of the incident as mentioned in the earlier part of the judgment. They specifically stated that from the two secret cavities seven packets of heroin powder weighing one kilogram each were secured. Out of which, 50 grams of heroin were separated from each packet, therefore, seven packets were prepared as sample for sending them to Chemical Analyzer for examination and report. Both the witnesses were subjected to cross-examination but nothing came on record to discredit their evidence. Their evidence is unanimous ml all the material aspects of the case. There are no material contradictions or discrepancies in then evidence, therefore, we do not find any reason to disbelieve their evidence. The important aspect of the case is the Chemical Analyzer's report. The Chemical Analyzer examined the contents of the packets and his observations are as under:-- "l. Weight: i. Gross wt.' of the each seven parcels with contents=50 gms. ii. Net wt. of the above contents each seven pcls without any wrappers=42 gms.

2. Physical app:- Light brown coloured powder.

3. Solubility test:- Partially soluble in alcohol, Ether Chloroform.

4. Colour test:- Marquis test:-Faintly Positive. ii. Frohed.s test:-Faintly Positive: iii. Mecke test-Faintly Positive iv. Nitric and test:- Faintly Positive.

5. T.L.C. Test:- Slightly identical with Heroin (Diacetyl Morphine). 10 gms. contents from each of the above seven parcels consumed in analysis remaining case property duly sealed is to be collected from. this office within (15) days from the date of receipt of this report. RESULT OF EXAMINATION One paper piece found in each of the above .seven parcels contains low concentration of Heroin," From the above report, it is clear that the tests were faintly positive and contents were slightly identical with heroin. Finally, the expert opined that parcel contained low concentration of heroin, Thus, it is manifest that the entire powder was not the heroin, but some percentage of heroin was mixed up with the powder. What was the said percentage'? The expert report is silent. Therefore, keeping in view the said aspect of the .case, we have to examine as to in which clause of section 9 of Control of .Narcotic Substances Act, 1997 the case would fall. Under clause (a), if the quantity of heroic etc, is 100 grams then the sentence is two years with or without fine. Under clause (b), if the quantity of heroin is more than 100 grams, but does not exceed one kilogram then the sentence is seven years with fine and wider clause(c), if the quantity of heroin etc, is more than 1000 grams then the sentence is death or imprisonment for life or imprisonment upto 14 years with fine. Keeping in .view the above' provisions of law, we have examined the case in the light of ,Chemical Analyzer's report, from which ho definite opinion can be given about the exact quantity of heroin mixed up with the powder, but we are sure that the heroin would be more than 100 grams, as the total weight of the powder was seven kilograms, but it cannot be more that 1000 grams, as such, the offence would fall under section 9(b) of Control of Narcotic Substances Act, 1997; therefore, the appellant is liable to be convicted for the said offence. As regards 'the sentence, as we could not .form any definite opinion about the exact quantity of heroin powder except as shown above, therefore, benefit of doubt is required to be given to the appellant in respect of quantity of heroin powder and sentence. Under the above circumstances, by our short order dated 20-8-2007 we had convicted the appellant for offence punishable wider section 9(b) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer imprisonment which he had already undergone and disposed of the appeal in the said terms. These are the reasons of the said short order. N.H.Q./M-128/K Order accordingly.