2014 PLP 2209 (YLR)

AFTAB AHMED GORAR, J.

The appellant was tried by the learned Special Judge (Narcotics), Dadu, for the offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997. He found the appellant guilty for the said offence and consequently convicted and sentenced him to suffer rigorous imprisonment for eight years, and to pay fine of. Rs.50,000 or in default whereof to further undergo R.I for six months more, vide impugned judgment dated 22nd August, 2009. The appellant was extended benefit of section 382-B, Cr.P.C.

2. The appellant being dissatisfied with the above judgment has filed the instant appeal.

3. The case of prosecution as per F.I.R No.179/2005, of Police Station Mehar, lodged by SIP Javed Iqbal Tunio lncharge CIC, Dadu, is that, the police party during patrolling saw the appellant waiting for conveyance on bypass road Mehar, and he on seeing the police party tried to slip away, but he was arrested on the spot by the police party under section 54, Cr.P.C. The appellant was having a plastic shopper in his name, which was opened and found containing Charas in shape of ten small and big pieces in an envelope, and on weighing the same it become 1400 grams; out of which, 20 grams of charas were sealed separately for chemical analysis. The appellant was arrested under Mashirnama and was brought at CIC Centre, Dadu, wherefrom he was shifted to Police Station Mehar along with mashirnama and the recovered contraband, where such mashirnama was incorporated into 154 Cr.P.C. book. After usual investigation the case was challaned.

4. A formal charge under section 9(c) of the Control of Narcotic Substances Act, 1997, was framed against the appellant at Exh.2, to which he pleaded not guilty and claimed his trial vide his plea at Exh.3.

5. The prosecution in order to prove the charge against appellant examined complainant SIP Javed Iqbal Tunio at Exh.4, who during his evidence has placed on record memo of arrest and recovery, roznamcha entry, and chemical report at Exh.5 to Exh.7. Prosecution has also examined P.W./Mashir Muhammad Saleh Pitafi at Exh.8, P.W. Razi Khan Solangi at Exh.10, who produced roznamcha entry at Exh.11 and F.I.R at Exh.12. Then the prosecution closed its side, vide Exh.13.

6. The appellant denied the allegations of prosecution in his statement under section 342, Cr.P.C. He neither examined himself on oath nor led any evidence in defence.

7. We have heard learned counsel for the appellant and learned A.P.G., and have gone through the material available on record and impugned judgment carefully.

8. Learned counsel for the appellant, contended that 1400 grams of charas in shape of pieces is alleged to have been recovered from possession of the appellant, out of which only 20 grams were sent for chemical analysis. The learned counsel further submitted that, he would be satisfied, if case of the appellant is decided in view of cases of Muhammad Hashim v. The State (PLD 2004 Supreme Court 856), Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) and Ameer Zeb v. The State (PLD 2012 Supreme Court 380); and the sentence awarded to the appellant may be altered to one, he has already undergone.

9. Learned A.P.G. conceded to the above proposition of the learned counsel for the appellant.

10. The learned trial Judge believed the evidence of prosecution witnesses holding that the evidence of the witnesses is sufficient to connect the appellant with the alleged crime. Besides this, the trial Court also observed that the recovery of charas from possession of appellant is also corroborated by the report of Chemical Analyzer.

11. As, sufficient material was available before trial Court in shape of unimpeachable ocular evidence of complainant supported by Mashir/witnesses on the point of recovery, coupled with mashirnama of arrest and recovery and positive report of Chemical Examiner, for establishing the guilt of appellant for the alleged charge therefore, we are of the view that trial Court has rightly convicted the appellant, hence the conviction awarded to him does not require any interference by this Court.

12. However, on the request of learned counsel for the appellant, we would like to consider the case of appellant in the view of the cases Muhammad Hashim v. The State (PLD 2004 Supreme Court 856), Ghulam Murtaza and another v. The State (2009 Lahore 362) and Ameer Zeb v. The State (PLD 2012 Supreme Court 380). According to prosecution case, the appellant was arrested while in possession of 1400 grams of charas, out of which only 20 grams were sent for chemical examination; the report whereof came in positive; and finding the appellant guilty of the alleged offence he was convicted and sentenced for having possession of 1400 grams charas, to suffer rigorous imprisonment for eight years, and to pay fine of Rs.50,000 or in default whereof to further undergo R.I for six months more. In these circumstances of the case, presumption was that only 20 grams of charas were taken out of 1400 grams as sample, (which too were not taken out from each piece); so far as the remaining 1380 grams were concerned, in absence of any sample taken out from each piece, it would not be possible to hold that they were the pieces of Charas or otherwise.

13. Therefore, keeping in view the law laid down in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380), and by applying the sentencing policy of the Lahore High Court, Lahore laid down in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), we while maintaining the conviction of the appellant, reduce his sentence from eight years to one, which he has already undergone. The appellant is present on bail, his bail bond stands cancelled and surety discharged. These are the reasons for our short order passed on 15-1-2014, whereby the appeal was disposed of.

14. This appeal is disposed of in these terms. HBT/M-51/Sindh Sentence reduced.