2017 P Cr (PLP)

MUHAMMAD ANWAARUL HAQ, J.

Through this criminal appeal, Muhammad Yasir appellant has challenged the vires of judgment dated 28.09.2016 passed by the learned Additional Sessions Judge, Rawalpindi in case FIR No.07 dated 04.01.2015 registered under section 9(c) of Control of Narcotic Substances Act, 1997 at Police Station Banni, Rawalpindi whereby he has been convicted under section 9(c) of C.N.S.A., 1997 and sentenced to four years and six months' R.I. with fine of Rs.20,000/, in default thereof, to further undergo five months' S.I. The benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. The facts giving rise to this appeal are that FIR referred above was lodged against the appellant with the allegation that at the time of his arrest by the police party he was found in possession of Charas weighing 1015 grams. After conclusion of trial, learned trial court convicted and sentenced the appellant as mentioned above.

3. At the very outset, learned counsel appearing on behalf of the appellant does not oppose conviction of the appellant, however, requests for its conversion for offence under section 9(b) of C.N.S.A., 1997 by stating that according to the report of Punjab Forensic Science Agency Ex.PD, sample of 10 grams Charas prepared by the complainant sent for chemical analysis has been found to be 6.22 grams, therefore, quantity of total Charas shown to have been recovered from the appellant as 1015 grams was infact much less than that weighed by the investigating officer with his defective scale.

4. Heard. Record perused.

5. We have gone through the evidence produced by the prosecution in support of its case and other incriminating material available on record and found that recovery of Charas from the appellant stands proved. However, we have noticed that it was the case of prosecution that upon search of the appellant 1015 grams Charas was recovered from him out of which 10 grams was separated as sample and sent to the Punjab Forensic Science Agency for chemical analysis but its report Ex.PD reflects that actual weight of sample Charas was 6.22 grams instead of 10 grams that raises serious question about the accuracy of the scale used by the investigating officer at the time of weighing the Charas recovered from the appellant and it leads us to an irresistible conclusion that the scale used by the investigating officer was defective. Needless to add that after conviction of an accused under C.N.S.A., 1997, weight of the contraband is of vital importance in deciding quantum of his sentence and even a difference of one gram is quite significant. It goes without saying that in the case of controversy regarding the weight of contraband, preference shall always be given to the scale used by the experts of the Laboratory and the weight determined by them. Argument of learned law officer that by the time material reaches the office of Chemical Examiner it loses weight is of no help to the prosecution, as conviction and sentence of an accused can only be based upon the unchallenged report of the Chemical Examiner and not on the evaluation or assessment of the investigating officer. In this case despite receipt of the report of Punjab Forensic Science Agency and tendering the same in evidence prosecution remained totally fail to remove the above mentioned defect and never applied for ascertaining the actual weight by the court or by sending the whole contraband to the Laboratory for determination of its exact weight.

6. As per report of Forensic Science Agency Ex.PD the weight of the sample of 10 grams sent for chemical analysis had been found as 6.22 grams i.e. 30.78% less than the alleged weight. Therefore, keeping in view the percentage of deficiency found in the weight of the sample, the weight of total contraband recovered from the appellant should also be determined after deduction of 30.78% from 1015 grams Charas. Thus, in our view actual weight of the Charas proved to be recovered from the appellant becomes 631 grams that falls within the purview of section 9(b) of C.N.S.A., 1997. Hence, conviction of the appellant is converted from section 9(c) of C.N.S.A., 1997 to section 9(b) of C.N.S.A., 1997 and as per sentencing policy, formulated in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), appellant is sentenced to one year and nine months' R.I. with a fine of Rs.13000/-, in default thereof, to further undergo four months and 15 days' S.I. Benefit of section 382-B, Cr.P.C. is also extended to the appellant. With this modification in the conviction and sentence of the appellant, this criminal appeal stands dismissed. KMZ/M-78/L Order accordingly.