PLJ 2021 Cr.C. (Lahore) 71 (DB)
Present: Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ.
MUHAMMAD ASIF--Appellant
versus
STATE--Respondent
Crl. A. No. 82 of 2017, heard on 19.3.2019.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Conviction converted from S. 9(b) to S. 9(c)--It is well settled by High Court in case of any controversy with regard to weight of contraband, preference shall be given to scale used by experts of laboratory and determined by them--Formula of excluding sample from whole contraband and then to decide quantum of sentence according to contraband--In above quoted judgment, formula has been given that out of one gram if 00.76 gram is sent for chemical analysis then it amounts to be 24% less than alleged weight--In same manner as mentioned above sample which has been received in office of PFSA was, 00.76 grams but sample obtained by complainant was one gram which clearly shown defective/underweight scale--As per above mentioned formula, weight of sample parcel received in office of PFSA i.e. 00.76 gram is to be minused from weight of sample i.e. one gram allegedly extracted by complainant and then this percentage is minused from net weight of contraband--According to this formula one gram from recovered heroin was obtained by complainant and as per report of PFSA sample which has been received in office is 00.76 gram and thus weight of sample is 24% less then from actual weight of sample parcels, therefore, keeping in view percentage of deficiency found in weight of sample weight of total contraband recovered from appellant should also be determined after deducting 24% that become 798 grams heroin--Actual weight of heroin proven to be recovered from appellant cannot be more than 1000 grams and case of appellant falls within purview of Section 9(b) of CNSA, 1997--As such, conviction of appellant is converted from Section 9(c) of CNSA, 1997, to Section 9(b) of CNSA, 1997--Court is inclined to alter conviction of appellant reduce his sentence from Six R.I, to One year and 10 months R.I, and also reduce amount of fine from Rs. 30,000/- to Rs. 15,000/- or in default simple imprisonment for 05 months--Appeal was dismissed. [Pp. 74 & 75] A, B & C
2017 PCr.LJ 1077 and PLD 2009 Lahore 362.Mr. Nasir Mehboob Tiwana, Advocate for Appellant.Mr. Muhammad Waqas Anwar, DPG for State.Date of hearing: 19.3.2019.
Judgment
Sardar Muhammad Sarfraz Dogar, J.--The instant appeal in terms of Section 48 of The Control of Narcotic Substances Act, 1997, is directed against the judgment dated 22.12.2016, rendered by the learned Additional Sessions Judge, Khushab, whereby, Muhammad Asif appellant was convicted under Section 9(c) of The Control of Narcotic Substances Act, 1997 in case FIR No. 354, dated 09.8.2015, registered with the Police Station Khushab and sentenced to undergo six years Rigorous Imprisonment alongwith fine of Rs. 30,000/- and in default thereof, he was to further undergo six months Simple Imprisonment. Benefit of Section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him.
2. Precisely, the facts necessary for adjudication of instant appeal, as emanates from the complaint (Exh.PA/1) is that on 9.8.2015, at about 4.45 a.m., Zafar Ail Shah S.I. (PW-5) alongwith other police officials was available at Chowk Hakimanwala in connection with routine patrolling, when received a spy information that Muhammad Asif (appellant) is selling narcotics near graveyard Darbar Badshahan Wala Khushab and he be apprehended if a raid is to be conducted. Consequently, the complainant constituted a raiding party and reached there. On seeing the police party, the appellant tried to flee away but he was overpowered with the help of police officials. On search, a polythene shopper was recovered from his right hand and on checking the sid shopper, heroin was recovered and on weighing, it became 1050 grams, out of wich one gram was separated for chemical analysis and sealed into parcels. Besides, sale procceds of Rs. 18000/- was also recovered from the possession of the appellant. Resultantly, the complainant drafted the complaint and transmitted it in the Police Station for registration of criminal case.
3. After registration of case and formal investigation, report under Section 173, of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, and appellant was sent to face the trial. The learned trial Court, while taking cognizance of the matter, framed the charge against the accused under Section 9 (c) of The Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed trial.
4. In order to prove the alleged recovery, the prosecution examined as many as five witnesses besides tendering report of PFSA (Exh.PD). After completion of prosecution evidence, the statement of appellant/accused was recorded under Section 342 of The Code of Criminal Procedure, 1898, wherein he pleaded his innocence. The appellant neither opted to appear in the witness box in terms of Section 340(2) of The Code of Criminal Procedure, 1898, nor prodced any evidence in deffence. After completion of evidence and hearing both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted him as mentioned in preceding Paragraph No. 1 above.
5. We have heard the learned counsel for the appellant as well as learned counsel for the State and perused the record with due care and caution.
6. According to the compliant (Exh.PA/1), the appellant has been saddled with the allegation of having found in possession of heroin weighing 1050 grams when apprehended by the Police. A glimpse of record reveals that the prosecution has undoubtedly established the recovery of narcotics substance fully substantiated by prosecution witnesses, the positive report of PFSA (Exh.PD) with regard to sample sent for chemical analysis. Despite searching lengthy cross-examination nothing favourable was elicited in favour of appellant. The appellant has failed to establish any malice, motive or ill will against the police officials to falsely entangle him in this case. The appellant has failed to advance any sufficient evidence in his defence. Therefore, we are persuaded to hold that the appellant was rightly convicted by the learned trail Court.
7. As regards the quantum of sentence awarded to the appellant by the learned trial Court, we have noticed that the law machinery was set into motion upon recovery of 1050 grams heroine from the possession of the appellant, when he was apprehended on a tip of informer. The complainant (PW-5) extracted one gram heroine from the recovered heroin for chemical analysis and sent to the Punjab Forensic Science Agency for chemical analysis but its report (Exh.PD) reflected that the actual weight of sample heroin was 00.76 gram instead of one gram that raises serious question about the accuracy of the scale used by the complainant (PW-5) at the time of weighing the heroine recovered from the appellant and it leads us to an irresistible conclusion that scale used by the complainant (PW-5) was defective. To remove this stigma, the prosecution has also failed to send the whole contraband to the Laboratory for determination of its exact weight. It is well settled by this Court in case of any controversy with regard to the weight of contraband, the preference shall be given to the scale used by the experts of the laboratory and determined by them. Guidance is sought from Muhammad Yasir v. The State (2017 P.Cr.L.J. 1077). The relevant extract from the said judgment is reproduced as under:
“……….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 vestigating 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.”
We have drawn the inference from the above judgment to mathematically discuss the formula of excluding the sample from the whole contraband and then to decide the quantum of the sentence according to the contraband. In the above quoted judgment, the formula has been given that out of one gram if 00.76 gram is sent for chemical analysis then it amounts to be 24% less than the alleged weight. In the same manner as mentioned above the sample which has been received in the office of PFSA was, 00.76 grams but the sample obtained by the complainant was one gram which clearly shown the defective/underweight scale. As per above mentioned formula, the weight of sample parcel received in the office of PFSA i.e. 00.76 gram is to be minused from the weight of sample i.e. one gram allegedly extracted by the complainant and then this percentage is minused from the net weight of the contraband. According to this formula the one gram from the recovered heroin was obtained by the complainant and as per report of PFSA the sample which has been received in the office is 00.76 gram and thus the weight of sample is 24% less then from actual weight of sample parcels, 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 deducting 24% that become 798 grams heroin. Thus, we are considered opinion that the actual weight of the heroin proven to be recovered from the appellant cannot be more than 1000 grams and the case of the appellant falls within the purview of Section 9(b) of CNSA, 1997. As such, conviction of the appellant is converted from Section 9(c) of CNSA, 1997, to Section 9(b) of CNSA, 1997.
8. We, thus, are inclined to alter the conviction of the appellant Muhammad Asif and while relying upon the case of Ghidam Murtaza and another v. The State (PLD 2009 Lahore 362), reduce his sentence from Six R.I, to One year and 10 months R.I, and also reduce the amount of fine from Rs. 30,000/- to Rs. 15,000/- or in default simple imprisonment for 05 months.
9. As per report dated 7.2.2019 furnished by the Superintendent District Prison Bhakkar, the appellant has already served out two years, seven months and seventeen days of his sentence. Record is indicative of the fact that the appellant has already served out his sentence. He is directed to be released forthwith, if, not required in any other case.
10. As a sequel of above discussion, the instant appeal is dismissed. However, the sentence of appellant is reduced, in the nature
mentioned hereinabove from the sentence awarded to him by the learned trial Court in terms of judgment dated 22.12.2016. Benefit of Section 382-B, Cr.P.C. shall remain intact.
(A.A.K.) Appeal dismissed
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