2005 PLP 1957 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Criminal Appeals Nos.190 and 191 of 2003, both filed by Muhammad Aslam-appellant shall be disposed of by this single judgment.

2. According to case F.I.R. No.37 dated 11-3-2002, for offences under Articles 3/4' of the Prohibition (Enforcement of Hadd) Order, 1979, read with section 9(c) of the Control of Narcotic Substances Act, 1997, was registered at Police Station, Bhong, District Rahim Yar Khan, against the appellant with the allegation that one packet containing One Kilo and Ten Grams of Charas was recovered from the fold of the trousers worn by the appellants. Charas was taken into possession by Rana Saeed Ahmad, Inspector/S.H.O., vide memo. Exh.P.B. attested by Amir Khan, A.S.-I./P.W,2 and Muhammad Yasin, A.S.-I. (not produced during trial). Out of the recovered Charas 10 Grams were separated and secured into a sealed parcel for the purposes of chemical examination. After recovery, complaint Exh. P.A. was drafted by P.W.3, which was sent to the police station and formal F.I.R. Exh.P.A./1 was registered. After completion of investigation the appellants was sent up to face trial.

3. On 21-8-2002 the learned trial Court framed the charge for offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be referred as CNSA) against the appellants. The appellant pleaded innocence and claimed to be tried.

4. During trail the prosecution examined four witnesses, who were all police officials, to establish its case. Amir Khan, A.S.-I./P.W.2 and Rana Saeed Inspector/S.H.O./P.W. 3 furnished the ocular account. Their statements are in accordance with the story as given in the complaint/F.I.R. Rana Saeed Ahmad/ P.W.3 further stated about the drafting of complaint and registration of case. Abdul Ghafoor, A.S.-I./P.W.1 stated about the formal registration of the case and receiving of two sealed parcels, which were to be kept in safe custody at police Malkhana. He added that on 29-3-2002 he handed-over one parcel, which constrained Charas, to Ishtiaq Ahmad, Constable! P.W.4 for onward transmission to the Office of Chemical Examiner, Multan. Ishtiaq Ahmad, Constable/P.W.4 stated that he . was handed-over a sealed parcel containing Charas, which he deposited with the Office of the Chemical Examiner. After placing on record the report of the Chemical Examiner Exh.P.D., which is. in positive, the prosecution closed its case.

5. In his statement under section 342, Cr.P.C. the accused/appellant pleaded innocence and denied the recovery. He further stated that he was innocent and he was involved in this case due to enmity, as he had been moving applications against the Inspector. The appellant did not appear as witness in his defence under section 340(2), Cr.P.C. and closed his case after placing on record certified copies of the documents Exh.D.A. to Exh.D.F.

6. The learned trial Court after having been convinced that the prosecution has proved its case, vide judgment dated 28-6-2003 convicted the appellant for offence under section 9(c), CNSA and sentenced him to undergo R.I. for 14 years and to pay fine of Rs.40,000, in default of payment whereof the convict was to suffer further S.I. for one year. Benefit of section 382-B, Cr.P.C. was extended to the convict/appellant.

7. Another case F.I.R. No.38, dated 11-3-2002 was registered against the appellant at Police Station, Bhong, District Rahim Yar Khan, for offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, read with section 9(c), CNSA, at the instance of Rana Saeed Ahmad, Inspector/S.H.O./ P.W.3.

8. The allegation in the said case against the appellant was that while in police custody, he led to the recovery of One Kilo and Fifty Grams of Charas, which was hidden in a box in the house of the appellant. The same was taken into possession vide memo. Exh.P.B. attested by Amir Khan, A.S.-I./P.W.2 and Muhammad Yasin, A.S.-I. (not produced during trial). Out of the recovered Charas Ten Grams were separated and secured into a sealed parcel for the purposes of chemical examination.

9. In this case the prosecution produced four witnesses to support its case. Rana Saeed Ahmad, Inspector/S. H.O./ P.W.3 stated that the accused/appellant, who was in custody in lieu of case FIR. No.37 of 2002, led to the recovery of One Kilo and Fifty Grams of Charas. He also stated about the drafting of complaint and investigation of the case. Amir Khan, A.S.-I. Appeared as P.W.2 and stated in line with Rana Saeed Ahmad, Inspector/ P.W.3. The statements of both the above-noted witnesses are according to the story unfolded in the complaint F.I.R. The other two witnesses are formal in nature and need not be discussed. After placing on record report of the Chemical Examiner Exh.P.D., which was positive, the prosecution closed its case.

10. The accused did not lead any defence evidence and in his statement recorded under section 342, Cr.P.C. he claimed to be innocent and stated that he was involved in this case, as he had been moving applications against Rana Saeed Ahmad, Inspector/S.H.O. He closed his defence after placing on record certified copies of documents Exh.D.A. to Exh. D.F. and did not appear as witness in his defence under section 340(2), Cr.P.C.

11. Vide judgment dated 28-6-2003 the learned trial Court convicted the appellants for offence under section 9(c), CNSA and sentenced him to undergo R.I. for 14 years with fine of Rs.40,000, in default of payment whereof the convict was to further undergo S.I. for one year. Benefit of section 382-B, Cr.P.C. was extended to the convict/appellant.

12. Both the judgments were appealed against. The appeals have been heard and record has been perused with the able assistance of the learned counsel for the parties.

13. The learned counsel for the appellant in both the appeals have submitted that they would not press these appeals on merits and would pray for reduction in the sentence with further prayer that the sentences passed in both the cases should be directed to run concurrently.

14. The learned A.A.-G. has frankly stated that as far as the conviction was being maintained he felt satisfied and has nothing much to say about the quantum of sentence.

15. After perusal of the record, we are of the opinion that no ill-will or motivation on the part of the witnesses could be pointed out by the accused in the course of trial, therefore, the prosecution case against the appellant for commission of offence is considered to have been established. However, during the course of hearing we noticed that the recovered Charas in both the cases exceeded One Kilo by a very small quantity, so in the interest of justice, had got the case property weigh in the open Court. The packet of Charas relating to case for No.37 of 2002 when weighed was found to be of 600 Grams of Charas instead of One Kilo and Ten Grams. Similarly, the packet of Charas in case FIR.No.38 of 2002 when weighed was found to be 700 Grams instead of One Kilo and Fifty Grams. This step was taken by this Court in the interest of justice and the result has justified it. Thus, we feel that in all the cases where the material recovered exceeds One Kilo by a small margin, the learned trial Court, during trial, should get the material weighed in the presence of the accused and the prosecutor. It appears that Rana Saeed Ahmad, Inspector/S.H.O. in order to show. his efficiency has wrongly mentioned in both the cases that the recovered Charas weighed more than a Kilo. This practice is highly deprecated.

16. The upshot of the whole discussion is that we alter the conviction of the appellants in both the cases (F.I.Rs. Nos.37 and 38 of 2002) to offence under section 9(c), C.N.S.A. Resultantly, the sentences in both the cases are reduced to five years' R.I. The sentences of fine in both the cases are maintained with modification that in default of payment thereof the appellant would undergo further S.I. for three months. Benefit of section 382-B, Cr.P.C. already extended to the appellant in both the cases is maintained.

17. All the sentences awarded to the appellants in both the cases (F.I.Rs. Nos.37 and 38 of 2002) shall run concurrently.

18. With the above modifications in the sentences and the direction that the sentences shall run concurrently, both these appeals (Crl. Appeals Nos.190 and 191 of 2003) are partially allowed.

19. A copy of this judgment would be sent to all the learned Sessions Judges and the Additional Sessions Judges in the Province of Punjab for guidance.

20. A copy of this judgment would also be sent to the D.I.G., Bahawalpur, who would take suitable action against Rana Saeed Ahmad, Inspector, after getting the matter inquired into. H.B.T./M-1062/L Order accordingly.