PLJ 2024 Cr.C. (Note) 286
[Lahore High Court, Lahore]
Present: Miss. Aalia Neelum and Tariq Iftikhar Ahmad, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 50749 of 2017, heard on 4.4.2018.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Question of sentence--Quantum of sentence--Recovery of charas--As regards question of his sentence, we have carefully gone through record available on file, which reveals that during course of cross examination 239/C (PW-1)-the recovery witness has deposed that “10-grams was separated with hands--After taking small amount of charas from each piece 10-grams charas was completed.” The recovery memo. and complaint have been exhibited in case and from contents of recovery memo. and complaint Ex.PA and Ex.PB respectively it reveals that charas weighing 1160-grams was recovered and thereafter, complainant (PW-2) drew a sample of 10-grams, whereas, S.I. (PW-2)-the complainant has specifically mentioned that from recovered substance, he (PW-2) separated 10 gram charas for chemical analysis--From testimony of PW-1 the recovery witness, it is axiomatic that recovered substance Charas was in pieces and one parcel of consolidated case property was prepared and some was handed over to Moharrar Malkhana--Thereafter, one sample of parcel was dispatched through SI (PW-2) for onward transmission to office of Punjab Forensic Sciency Agency, Lahore--The prosecution had failed to establish that representative sample was not drawn from pieces--In absence of proof regarding preparation of separate sample, appellant cannot be liable to be convicted for recovered substance which was 1160-grams--At most, quantity which could be considered at this stage is only to extent of weight of sample-- Thus appellant is liable only for weight of sample of Charas--When such is case, only weighing 10 grams charas could be considered against appellant--The schedule provided in Ghulam Murtaza’s case (PLD 2009 Lahore 362) reflects that rigorous imprisonment for six months upon recovery of charas upto 30-grams along with fine of Rs. 3,000/- and in default simple imprisonment for two months has been provided--On merits and pressed only on quantum off sentence awarded, considering all aspects, High Court is of opinion that interest of justice will be met if sentence imposed on appellant is reduced to period appellant has already undergone--We think that ends of justice will be served by maintaining conviction but reducing sentence to period already undergone along with fine by appellant--With this modification, appeal is hereby dismissed. [Para 12, 13 & 14] A, B, C & D
PLD 2012 SC 380, PLD 2009 Lahore 362 and 2013 SCMR 302.
Ch. Muhammad Naseer Kamboh, Advocate (Defence Counsel) for Appellant.
Mr. Muhammad Waqas Anwar, DPG for State.
Date of hearing: 4.4.2018.
Judgment
Miss Aalia Neelum, J.--Appellant-Muhammad Ashfaq alias Shaaqi son of Faiz Ullah, Caste Pathan, resident of Mohallah Dhanai Khel, Kamar Mushani was involved in case F.I.R No. 228 of 2015, dated 13.11.2015, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Kamar Mushani, District Mianwali and was tried by the learned Addl. Sessions Judge/Judge Special Court CNS, Isa Khel. The learned trial Court seized with the matter in terms of judgment dated 14.03.2017, convicted the appellant under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced him to 04-years and 06 months rigorous imprisonment with the direction to pay Rs. 20,000/- as fine and in case of default in payment thereof, to further undergo simple imprisonment for 05-months. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant. Feeling aggrieved, the appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.PD) lodged on the complaint (Ex.PB) of Imran Ijaz, S.I. (PW-2) is that on 13.11.2015, he (PW-2) along with Hafeez Ullah, A.S.1 (given up PW). Ameer Muhammad 478/C, Masood Iqbal 239/C (PW-1), white on official vehicle Mobile-II, driven by Ghulam Akbar 93/C, was present at bridge Adola near mettled road leading to Chapri, while forming a picket of prevention of crimes, where a person while carrying a shopper of black colour in his right hand came from Chapri Road on foot, who on seeing the police party turned back at once but due to suspicion, the appellant with the help of police employees was apprehended, who later on disclosed his name as Muhammad Ashfaq alias Shaaqi. During search of the appellant, a shopper of black colour having in his right hand containing charas was recovered and on weight it became 1160-grams, which was taken into possession vide recovery memo. (Ex.PA). Out of the recovered substance, 10-grams Charas was separated for Chemical Analysis. The complainant (PW-2) drafted complaint (Ex.PB) and sent the same through Ameer Muhammad 478/C to the Police Station for registration of the formal FIR (Ex.PD).
3. Thereafter, the investigation was entrusted to Habib Ullah, S.I, (PW-3), who being Investigating Officer of the case visited the place of occurrence and prepared the site-plan (Ex.PC) of the place of recovery, recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. and also sent the appellant to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty, the Investigating Officer (PW-3) prepared report under Section 173, Cr.P.C.. while placing his name in Column No. 3 of the challan and sent the same to the Court of competent jurisdiction.
4. The learned trial Court formally charge sheeted the appellant on 07.01.2016, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as four witnesses. Masood Iqbal 239/C (PW-1) is the witness of recovery, Imran Ejaz, SI (PW-2) is the complainant of the case, Habib Ullah, SI (PW-3) is the Investigating Officer of the case and Fateh Sher MHC (PW-4) is the Moharrar of the Police Station.
5. On 22.02.2017, the learned ADPP gave up PW-Hafeez Ullah, ASI being unnecessary and closed the prosecution evidence after tendering the report of PFSA (Ex.PE).
6. The appellant was also examined under Section 342, Cr.P.C. wherein he neither opted to appear as his own witness in terms of Section 340(2), Cr.P.C. nor opted to produce defence evidence and while replying to a particular question that why PWs had deposed against him, the appellant-Muhammad Ashfaq alias Shaaqi made the following deposition:
“Local police had got lodged a fake and fictitious case against me to show his efficiency. Recovery of charas is fake and fictitious which was planted against me just to strengthen the prosecution case. PWs are police personnel. They have deposed falsely on the direction of Investigating Officer.”
7. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned ADPP, the learned trial Court while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
8. Despite repeated calls, no one has entered appearance on behalf of appellant, therefore, Ch. Muhammad Naseer Kamboh, Advocate (Cell No. 0300-4066965) is hereby appointed as defence counsel at State expense today. The learned counsel for the appellant has opted not to object conviction of the appellant but, however, prayed for reduction in his sentence mainly on the touchstone of dictum of law laid down by the August Supreme Court of Pakistan in the case of “Ameer Zeb v. The State” (PLD 2012 SC 380).
9. On the other hand, learned Deputy Prosecutor General has not opposed the contention raised on behalf of the appellant.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
11. As the learned counsel for the appellant has not opted to assail conviction recorded by the learned trial Court against the appellant. Therefore, we do not feel it necessary to discuss in detail the prosecution evidence on the record. However, we find that in view of recovery of narcotic substance charas fully substantiated by Masood Iqbal 239/C (PW-1)-recovery witness, Imran ljaz, SI (PW-2) the complainant of the case, Habib Ullah, SI (PW-3) I.O. and the positive report of Narcotics Analysis Report (Ex.PE) with regard to sample sent for narcotics analysis, particularly the fact that the complainant and other officials had no previous ill will to falsely involve the appellant in the instant case, we have been persuaded to hold that the appellant was rightly convicted and sentenced by the learned trial Court. We, thus, see no infirmity in the impugned judgment to the extent of conviction of the appellant, as awarded by the learned trial Court and as such we find no ground or justification to warrant interference in the same. Consequently, we are inclined to maintain the conviction as recorded by the learned trial Court.
12. However, as regards the question of his sentence, we have carefully gone through the record available on file, which reveals that during the course of cross examination Masood Iqbal 239/C (PW-1)-the recovery witness has deposed that “10-grams was separated with hands. After taking small amount of charas from each piece 10-grams charas was completed.” The recovery memo. and complaint have been exhibited as Ex.PA and Ex.PB in the case and from the contents of the recovery memo and complaint Ex.PA and Ex.PB respectively it reveals that charas weighing 1160-grams was recovered and thereafter, the complainant (PW-2) drew a sample of 10-grams, whereas, Imran Ijaz, S.I. (PW-2)-the complainant has specifically mentioned that from recovered substance, he (PW-2) separated 10 gram charas for chemical analysis. From the testimony of Maqsood Iqbal 239/C (PW-1)-the recovery witness, it is axiomatic that the recovered substance Charas was in pieces and one parcel of consolidated case property was prepared and some was handed over to the Moharrar Malkhana. Thereafter, one sample of parcel was dispatched through Imran ljaz, SI (PW-2) for onward transmission to the office of Punjab Forensic Sciency Agency, Lahore. In the dictum of law laid down by august Supreme Court of Pakistan in the case of “Ameer Zeb vs. The State” (PLD 2012 Supreme Court 380) it was held that:
“If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cakes/slabs are not kept separately for their analysis by Chemical Examiner then the sample would not be a representative sample.”
It was also held by their Lordships in the August Supreme Court of Pakistan in Ameer Zeb’s case which reads as under:
“that it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.”
The prosecution had failed to establish that the representative sample was not drawn from the pieces. In absence of proof regarding preparation of separate sample, the appellant cannot be liable to be convicted for the recovered substance which was 1160-grams. At the most, the quantity which could be considered at this stage is only to the extent of the weight of sample.
13. Thus the appellant is liable only for weight of sample of Charas. When such is the case, only weighing 10 grams charas could be considered against the appellant. The schedule provided in Ghulam Murtaza’s case (PLD 2009 Lahore 362) reflects that rigorous imprisonment for six months upon recovery of charas upto 30-grams along with fine of Rs. 3,000/- and in default simple imprisonment for two months has been provided. The above said sentencing policy formulated by this Court in Ghulam Murtaza’s case (PLD 2009 Lahore 362) was also subsequently approved by the August Supreme Court in the case of “Amir Zaib vs. The State” (PLD 2012 SC 380) and in case of “Fareed Ullah vs. State” (2013 SCMR 302). The appellant is previously non- convict and being first offender deserves leniency in terms of Ghulam Murtaza’s case (PLD 2009 Lahore 362).
14. In view of the above, since the learned counsel for the appellant did not press this appeal on merits and pressed only on the quantum of sentence awarded, considering all the aspects, this Court is of the opinion that interest of justice will be met if the sentence imposed on the appellant is reduced to the period the appellant has already undergone. We think that the ends of justice will be served by maintaining the conviction but reducing the sentence to the period already undergone along with fine by the appellant. With this modification, this appeal is hereby dismissed.
(A.A.K.) Appeal dismissed
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