Allah Bachaya alias Bachoo vs State and another

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, registe red with Police Station Muhammadpur , vide judgment dated 22.05.2021, as under:-- > 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. > 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.P A) 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-1) 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 balso 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 that as far as separation of sample from the recovered bulk of narcotic substance, its deposit with Moharrar and further transmission to the PFSA, Lahore, is concerned, it is fully established through unbroken chain. Hence, if this aspect is taken into consideration, the recovery of 205 grams charm is fully established.

8. Taking into consideration what has been discussed above, conviction and sentence awarded to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 is hereby set aside and he is convicted under Section 9(b) of the Act ibid. As per guidelines given in Ghulam Murtaza's case for recovery of 205 grams1 contraband charas, the appellant is sentenced to rigorous, imprisonment for one year and three months with fine of Rs. 9,000/- and in case of default in payment of fine to further undergo S.I. for three months and fifteen days. He is also extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.

9. With the aforesaid modification in conviction and sentence of the appellant, this appeal is dismissed.