2013 PLP 302 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Muslim Khan and Fareed Ullah petitioners were tried in case F.I.R. No.9 registered at Police Station, Attock Khurd on 11-1-2002 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 with an allegation that they had been apprehended while in possession of charas weighing 24 kilograms and after a full-dressed trial they were convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 29-7-2002 handed down by the learned Judge, Special Court (CNS), Attock and were sentenced to imprisonment for life each and a fine of Rs.5,00,000 each or in default of payment thereof to undergo rigorous imprisonment for three years each. The benefit under section 382-B, Cr.P.C. was extended to them. The petitioners challenged their convictions and sentences before the Lahore High Court, Rawalpindi Bench, Rawalpindi through Criminal Appeal No.561 of 2002 which was dismissed by a learned Division Bench of the said Court vide judgment dated 22-4-2008. Thereafter Muslim Khan petitioner approached this Court through Jail Petition No.137 of 2008 and Fareed Ullah petitioner preferred Jail Petition No. 69 of 2009 which were considered in Chambers by two Hon'ble Judges of this Court and were dismissed vide order dated 15-7-2009. Hence the present Suo Motu Criminal Review Petition before this Court wherein notice had been issued to the State on 12-11-2012.

2. We have heard the learned counsel for the petitioners and the learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the relevant record of the case with their assistance.

3. The record of this shows that the recovered charas allegedly weighing 24 kilograms was in the shape of 20 littars but after the alleged recovery one consolidated sample of the recovered substance had been taken which sample weighed 10 grams only. This admitted fact on the face of it attracts the ratio of the law declared by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) and, thus, at best only one littar of charas could have been considered against the petitioners as the recovered substance and the petitioners could have been convicted and punished accordingly. Going by the law of averages, if 20 littars weighed 24 kilograms then one littar would weigh 1.2 kilograms and it is only charas weighing 1.2 kilograms for which the petitioners could have been convicted and sentenced. In this view of the matter this Suo Motu Criminal Review Petition is allowed after condoning the delay in filing of the same, the order passed by this Court on 15-7-2009 dismissing the petitioners' Jail Petition No.137 of 2008 and Jail Petition No.69 of 2009 is recalled, the said jail Petitions are converted into appeals and the same are partly allowed with the result that the conviction of the petitioners-appellants for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 is maintained but their sentences, as per the sentencing guidelines of the Lahore High Court, Lahore contained in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), are reduced to rigorous imprisonment for four years and six months each and a fine of Rs.20,000 each or in default of payment thereof to undergo simple imprisonment for five months each. The benefit under section 382-B, Cr.P.C. shall be extended to the petitioners-appellants. Disposed of. MWA/F-14/SC Petition allowed.