PLJ 2022 Cr.C. 635 (DB)
[Lahore High Court, Multan Bench]
Present:
Muhammad Waheed Khan and Ali Zia
Bajwa, JJ.
ALLAH
BACHAYA alias BACHOO--Appellant
versus
STATE
& another--Respondents
Crl. A.
No. 365 of 2021, heard on 21.12.2021.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Consolidated sample from each piece--Reduction in
sentence--Charas weighing 4100 grams was recovered and 205 grams was separated
for analysis--Both the PW’s stated that the recovered charas was consisting of
12 pieces whereas out of each piece sample was separated and merged into one
parcel--At the most, only the weight of sample which was transmitted to the
office of PFSA could be used against the appellant--If this aspect is taken
into consideration, the recovery of 205 grams charas is fully
established--Sentence awarded u/S. 9-C of CNSA is hereby set aside and
appellant is convicted u/S. 9-B of CNSA for recovery of 205 grams charas and is
sentenced one year R.I. and three months with fine--Appeal dismissed. [Pp. 637, 638 & 639] A, B, C, D & E
PLD
2012 SC 380 ref.
M/s. Khawaja Qaiser Butt, Tariq Mehmood Dogar and Rao
Matloob Ahmed, Advocates for Appellant.
Mr. Shahid Aleem, Addl. Prosecutor General for State.
Date of hearing 21.12.2021.
Judgment
Ali Zia Bajwa, J.--Through
this criminal appeal filed under Section 48 of the Control of Narcotic
Substances Act, 1997, Allah Bachaya alias Bachoo son of Ghulam Haider,
caste Lashari, resident of Muhammadpur, Tehsil Jampur, District Rajanpur,
appellant, has challenged his conviction and sentence awarded to him by the
learned Additional Sessions Judge-I, Jampur, in case FIR No. 111/2020, dated
10.03.2020, offence under Section 9(c) of the Control of Narcotic Substances
Act, 1997, registered with Police Station Muhammadpur, vide judgment
dated 22.05.2021, as under:--
Ø
Under Section 9(c) of the Control of Narcotic
Substances Act, 1997, sentenced to undergo R.I. for seven years and six months
with fine of Rs. 35,000/- and in case of default in payment thereof, to further
undergo S.I. for six months and fifteen days.
Ø
Benefit of Section 382-B, Cr.P.C. was also
extended in favour of the appellant.
2. Prosecution story as portrayed in the FIR (Exh.PA) lodged on
the complaint (Exh.PD) of Zafar Hussain, S.I. (PW-4) is that on 10.03.2020 the
complainant along with Abdul Shakoor ASI, Muhammad Nawaz ASI, Muhammad Jaffar
1639/C, Muhammad Ayub 917/C, Muhammad Baqir 340/C and Hazoor Bakhsh 565/C
boarding on official vehicle bearing registration No. RP/1005, driven by Ayaz
Ahmed 450/C was present at Cattle Market when informer passed on spy
information that accused Allah Bachaya alias Bachoo was in possession of
huge quantity of charas and was selling it while standing at railway track. On
this information a raid was conducted and on the signal of the informer, the
accused was apprehended, who disclosed his name as mentioned above. At that
time the accused was holding a polythene bag in his right hand out of which
contraband charas weighing 4100 grams was recovered. Out of the recovered
narcotic substance, 205 grams was separated and made into a sealed parcel for
forensic analysis while remaining bulk (P-l) was taken into possession vide recovery
memo. Exh.PB. On further search of the accused wattak amount/sale proceeds
amounting to Rs. 750/- was recovered and taken into possession vide recovery
memo. Exh.PC. The complainant drafted complaint (Exh.PD) and transmitted it to
Police Station for registration of formal FIR. After registration of the case,
he prepared rough site plan of the place of recovery (Exh.PE) and recorded statements
of the prosecution witnesses under Section 161, Cr.P.C.
During
the course of investigation having found the appellant guilty, report under
Section 173, Cr.P.C. was prepared and submitted before the learned trial Court
while placing his name in Column No. 3.
3. After submission of challan, learned trial Court indicted
the accused vide order dated 29.09.2020 to which he pleaded not guilty
and claimed trial. Prosecution in order to establish its case produced as many
as four (4) prosecution witnesses.
Zafar Hussain, S.I. (PW-4) is complainant of the case, as well
as, Investigating Officer whereas Muhammad Nawaz, ASI (PW-3) is other witness
of recovery. Mehmood Ahmad 1142/HC (PW-2) was posted as Moharrar at the
relevant time while on presentation of complaint Syed Johar Abbas 10/HC (PW-1)
chalked out formal FIR.
4. After completion of prosecution
evidence, statement of the accused, as provided under Section 342, Cr.P.C., was recorded by the learned trial Court. He
professed his innocence and pleaded false implication in the case. Upon
completion of trial, the learned trial Court having found case against the
appellant to have been proved beyond any shadow of reasonable doubt, convicted
and sentenced him as mentioned and detailed above.
5. Prosecution version in this case
hinges upon ocular/recovery account, its deposit with malkhana and
report of Punjab Forensic Science Agency (Exh.PF) in this regard.
6.
As far as prosecution version with regard to recovery is concerned, the same
has been substantiated through the statements of Zafar Hussain, S.I. (PW-4) and
Muhammad Nawaz, ASI (PW-3). Perusal of their statements reflects that both the
prosecution witnesses remained consistent with regard to factum of recovery
from the appellant before us. However, learned counsel for the appellant has
vehemently agitated that during the course of trial both the prosecution
witnesses qua recovery viz. complainant, as well as, Muhammad Nawaz, ASI
(PW-3) stated that the recovered charas was consisting of twelve (12) pieces
whereas out of each piece, sample was separated and merged into one parcel,
thus, the instant case requires its evaluation as per guidelines in land mark
judgment of august Supreme Court of Pakistan in the case of Ameer Zeb vs.
The State (PLD 2012 SC 380).
In order to evaluate contention raised by learned counsel for
the appellant we have minutely gone through the record available on file, as
well as, statements of the prosecution witnesses made during the course of
trial. We have noticed that while appearing in the witness-box, Zafar Hussain,
S.I. (PW-4)/complainant stated that the recovered charas was consisting of
twelve pieces. Relevant extract out of his statement is reproduced as under:
"The accused
was having a blue coloured shopper in his right hand,
from which charas was recovered which on weight was 4100 grams which was
consisting upon 12 pieces."
Similarly Muhammad Nawaz, ASI (PW-3)
other witness of recovery also conceded this fact in the following terms.
"The accused
was having a blue coloured shopper in his right hand,
from which charas was recovered which on weight was 4100 grams which was
consisting upon 12 pieces."
Both
the prosecution witnesses further admitted that from each piece, samples were
separated and merged into one parcel weighing 205 grams charas. In this
eventuality, at the most, only the weight of sample which was transmitted to
the office of Punjab Forensic Science Agency could be used against the
appellant. Hence, as rightly contended by learned counsel for the appellant the
whole recovered narcotic substance cannot be used against the appellant as laid
down in Ameer Zeb case supra.
7. Hence, only evidence against the appellant available on file
is report of Punjab Forensic Science Agency (Exh.PF), which no doubt is
positive. However, its close scrutiny reflects that net weight of sample sent
to PFSA was approximately 205 grams. We have noticed
