2006 PLP 2811 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Charagh Shah-appellant has assailed judgment dated 18-5-2006 handed down by Mr. Muhammad Saeed Awan, learned Additional Sessions Judge, Bahawalpur in case F. I. R. No.543 registered at Police Station Baghdad-ul-Jadid on 25-11-2005 for offence under section 9(b) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to be as Act), whereby lie was convicted under section 9(b) of the Act and sentenced to two years' R.I. He was also directed to pay fine of Rs. 1,

000. In default of payment of fine he was to suffer simple imprisonment for 15 days. The benefit of section 382-13, Cr.P.C. was extended to the convict-appellant.

2. According to prosecution case on 25-11-2005 the appellant was arrested in case registered for offence under section 13 of the Arms Ordinance. During search 110 rams of Charas, which was in the shape of different pieces and was in a shopper, was recovered from the right side pocket of the shirt worn by the appellant. Out of the recovered Charas 10 `rams were separated and sealed into a parcel for the purposes of its examination by the Chemical Examiner. The rest of the Charas was sealed into a different parcel. After the recovery of Charas Abdul Rauf. S.H.O. P.W.3 drafted complaint Ehx.PA and sent it to the police station for formal registration of the case. On the basis of the complaint formal F. I. R. (No.543 of 2005) Exh.P.A/l was registered for offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.

3. After the completion of investigation the appellant was sent up to face trial. The learned trial Court framed charge for offence under section 9(b) of the Control of Narcotic Substances Act, 1997 against the appellant. As the appellant denied the allegations and claimed to be tried, the trial commenced.

4. During trial the prosecution produced six witnesses to support its case. Jindwadda Constable P. W.2 and Rauf Gill complainant S.H.O. P.W.3 furnished the ocular account and stated about the recovery effected from the possession of the appellant. In addition to that P.W.3 stated about drafting of the complaint and investigation of the case. Muhammad Tariq H.C. P.W.4 stated that sealed parcels containing Charas were handed over to him for safe custody by P.W.3 and that one of the parcels containing 10 grams of Charas was sent to the Chemical Examiner on 7-12-2005 through Tariq Javed Constable P.W.S. The rest of the witnesses are formal in nature and need not be discussed. After placing on record the report of the Chemical Examiner Exh.P.O., which is in positive, the prosecution closed its case.

5. In his statement recorded under section 342, Cr.P.C. the appellant claimed to be innocent and explained that fake recovery had been planted upon him. The appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. and closed his case after producing Karam Hussain Shah and Rajaish D. W.1 and D. W.2 in his defence. D.W.I who is father of the appellant stated that nothing was recovered from the possession of the petitioner on the fateful day. While D.W.2 Rajaish stated that hot words were exchanged between Jindwadda and Charagh Shah on 24-1-005 one day prior to the occurrence and thereafter, the appellant was involved in a false case. 6.? At the very outset the learned counsel for the appellant has submitted that he would pray for reduction of sentence alone in the circumstances of the case. On that score he has referred to the meagre quantity of Charas allegedly recovered from the appellant and to the factum that the appellant was previously a non-convict.

7. Learned counsel appearing on behalf of the State has submitted that as long as conviction was being maintained he has nothing much to say about the quantum of sentence.

8. We have heard the learned counsel for the parties and have also gone through the record of the case. 9.? It has been noticed by us that P. W. 2 and P.W.3 had no previous enmity or ill-will against the appellant so as to involve him in a false case. Both the witnesses have corroborated each other on almost all the material points. Their statements are also supported by the report of the Chemical Examiner. Both the defence witnesses produced by the appellant have not given any convincing evidence and their statements are general in nature. In these circumstances, the prosecution had successfully proved its case against the appellant and learned counsel for the appellant has wisely not pressed for acquittal. Having come to this conclusion we have given our considerate and anxious thought to the quantum of sentence in the circumstances of the case. According to prosecution case itself the recovered Charas was in the shape of different pieces. In that case either the specimen from all the pieces should have been sent to the Chemical Examiner or all the recovered substance should have been sent to the Chemical Examiner for establishing whether it was narcotic substance or not. In the instant case it cannot be said with certainty that rest of the pieces also contained Charas. Thus extending benefit of doubt to the appellant we alter the sentence from section 9(b) of the Control of Narcotic Substances Act, 1997 to section 9(a) of the Act and reduce the sentence to the period already served out by him. The appellant would be released forthwith if not required in any other case.

10. With the above noted modification in conviction and sentence this appeal in partly allowed. H.B.T./C-26/L ??????????????????????????????????? Appeal partly allowed.