2007 PLP 2894 (YLR)

ASIF SAEED KHAN KHOSA, J.

Muhammad Ilyas appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 12-7-2004 rendered' by the learned Additional Sessions Judge, Rawalpindi. and was sentenced to imprisonment for life and a fine of Rs.50,000 or in default of payment thereof to undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. was extended to him. The appellant has challenged his conviction and sentence before this Court through the present appeal.

2. We have heard the learned counsel for the parties and have gone through the 'record, of this case with their assistance. The learned counsel for the appellant has argued that in the circumstances of this case the appellant could have been convicted and sentenced by the learned trial Court only to the extent of the substance proved to be Charas and not to the extent of the entire quantity statedly recovered from his possession. The learned counsel for the State has opposed this contention 'of the learned counsel for the appellant.

3. According to the prosecution the appellant had been apprehended in a graveyard in Mohallah Safdar Abad, Rawalpindi and Charas weighing ten kilograms and ten grams had been recovered from his possession. During the trial Muhammad Latif, A.S.-I. (P.W.4) and Umer Hayat,. Inspector/S.H.O. (P.W.S) had deposed about the alleged recovery from the appellant's possession. In the F.I.R. as well as in the Memorandum of Recovery at had not been specified as to in which shape Charas had been recovered from the appellant's possession but both the above mentioned witnesses of the alleged recovery had categorically stated before the learned trial Court that the recovered Charas was in the shape of "littars". Both 'the said witnesses, however, could not specify before the learned trial Court as to how many littars of Charas had Been recovered and what was the weight of each littar. It is admitted at all hands that only ten grams of the recovered substance had been sent to the Chemical Examiner for analysis and a report was received in that regard in the positive. It has been held by the Honourable Supreme Court of Pakistan in the cases of Muhammad Hashim v. The State PLD 2004 SC 856, and .Muhammad Riaz and 2 others v. The State 2006 SCMR 1378, that in case of recovery of narcotic substance in the shape of. rods, slabs or littars a sample has to be taken from each of the recovered rods, slabs or littars and if that is not done then the accused person can be convicted only for the weight of one rod, slab of littar from which the sample is A taken and sent to the Chemical Examiner. As already observed above, in the present case even the weight of any littar allegedly .recovered from the appellant's possession is not available on the record and, thus, we are left with no other option but to uphold and maintain the appellant's conviction for only the weight of the sample of the recovered substance sent to the Chemical Examiner .for analysis. This appeal is, therefore, partly allowed, the conviction and sentence of the appellant recorded by the learned trial Court for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 are set aside and instead the appellant is convicted for an offence under section 9(a) of the Control of Narcotic. Substances Act, 1997 and is sentenced to rigorous imprisonment for two ' years. The appellant has already spent more than five years in jail in connection with this case and, thus no sentence of fine is pasted by us against him. The sentence of imprisonment passed by us against the appellant has already been undergone and served out by the appellant. He shall, A therefore, be released from the jail forthwith if not required to be detained in connection with any other case. H.B.T./M-74/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly