2015 PLP 308 (SCMR)

IJAZ AHMED CHAUDHRY, J.

The appellant challenges the judgment dated 31st of January, 2006, through which Criminal Appeal No.2071 of 2003, filed by Shaukat Ali appellant, against his conviction awarded under section 9(c) of the Control of Narcotic Substances Act, 1997 [hereinafter referred to as, the Act] and sentence of death with fine of Rs,5,00,000 or in default thereof to suffer 1 year's S.I. was dismissed.

2. Brief facts of the case are that F.I.R. No.8 was registered under section 9(c) 15, C.N.S.A./1997 on 6th March, 2000 at Police Station ANF, Lahore on the complaint of Qadeer Baig, Inspector ANF. The raid was conducted on the house of the appellant and 10 plastic bags of Charas, containing 20/20 packets each of one kilogram, were recovered thus, total 200 kilogram Charas was recovered allegedly from the house of the appellant.

3. Report under section 173, Cr.P.C. was submitted and the trial Court vide judgment dated 17th November, 2003 convicted the appellant and sentenced him to death with fine of Rs.50,00,000 or in default thereof to suffer 1 year's S.I.

4. Learned counsel for the appellant contends that report of Chemical Examiner was evasive. He while relying upon the judgment of this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380), states that if the report of Chemical Examiner is evasive, then appellant deserves acquittal.

5. Learned counsel further contended that the prosecution has not been able to prove the case against the appellant beyond any shadow of doubt and the evidence was insufficient but inspite of that, conviction and sentence has been passed by the trial Court, appeal against which has been dismissed by the learned Division Bench of the Lahore High Court.

6. We have heard the learned counsel for the appellant and perused the record. The prosecution in order to prove the case has produced ASI Muhammad Sarwar (P.W.1) and Abdul Ghafoor Constable (P.W.2), who are formal witnesses. Muhammad Bakhsh Durrani Constable has appeared as P.W.3 because in his presence 20 bags of Charas were recovered from the residential room of the appellant. To prove the recovery, P.W.5, Qadeer Baig, Inspector had also appeared and supported the prosecution case, and then the report of Chemical Examiner was tendered in evidence. After closure of the prosecution, the appellant was examined under section 342, Cr.P.C. On a question that why this case has been made against him, he maintained that the informer of ANF was his enemy and nothing has been recovered from him, however, he did not appear in his defence and also did not produce evidence.

7. The case of the prosecution is that 20 bags were recovered from the residential room of the appellant adjacent to Baithak of the house. Each bag contains 20 packets and each packet weighed 1 kg, whereas 1 gram Charas was separated from each packet and after amalgamation, 10 sealed parcels of 20/20 gram Charas were prepared as sample. In the case of Ameer Zeb v. The State (PLD 2012 SC 380) this Court has come to the conclusion that if Charas is recovered, from each packet a separate sample of Charas for the examination of Chemical Examiner has to be prepared and has to be sent but in the present case only 10 packets have\been prepared after amalgamation of the Charas, which was taken from each packet. In such situation, keeping in view the ratio laid down by this Court in the case of Ameer Zeb (supra), we find that at the most the appellant can be convicted under section 9(c) of the Act but for the recovery of Charas weighing 10 Kg.

8. In view of the matter, we find that recovery of Charas is proved only to the extent of 10 Kg. which fact is supported by the report of Chemical Examiner and the appellant can be convicted for keeping in his possession 10 Kg Charas only. We have perused section 9(c) of the Act, which is punishable with death or imprisonment for life or imprisonment for a term which may extend to 14 years but according to proviso if the quantity exceeds 10 Kg, the punishment shall not be less than imprisonment for life. As the quantity of Charas, recovered from the possession of the appellant is not exceeding 10 kg, hence he cannot be sentenced to undergo imprisonment for life.

9. The appellant is behind the bars, since 7-3-2000 at the time when the Charas was recovered from him, and has undergone more than 14 years in Jail, therefore, we find it a fit case for converting his death sentence to the sentence already undergone by him, which shall include the sentence awarded to him in case of non payment of fine, with benefit of section 382-B, Cr.P.C.

10. In the above circumstances, the appellant is directed to be released forthwith, if not required in any other case. Appeal is disposed of in the above terms. MWA/S-27/SC Order accordingly.