' SARDAR MUHAMMAD ASLAM, J.---This criminal appeal is directed against the judgment dated 29- 5-2003 passed by the learned Special Judge Anti-Narcotics, Lahore, whereby he convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment with a fine of Rs,5 lac. In default of payment of fine he will further suffer imprisonment for two years in case F.I.R. No,9 of 1999 registered under section 9(c) of C.N.S.A. At Police Station Anti-Narcotic Forces, Lahore.
2. Succinctly the prosecution story as narrated in the F.I.R. Is that on receiving a secret information a raiding party comprising Qadeer Ahmed Baig, S.-I. Police Station Anti-Narcotic. Force and other officials was constituted under the supervision of Captain Mian Farooq Aziz on 9-3-1999. At about 3-00 p.m. The appellant was found coming from Lahore towards Sheikhupura on Motorcycle No,LXD-5911 who was stopped and from the rear seat of the motorcycle 20 K.G. Charas wrapped in a plastic bag was recovered which was taken into possession and after the investigation the appellant was challaned. In support of its case, the prosecution examined five witnesses. P.W.4 Muhammad Abbas, Driver and P.W.5 Qadeer . Ahmed, S.-I. The complainant were produced to support the recovery. Their statements were relied upon by the trial Court. In his defence, the appellant denied the recovery and examined one witness.
3. Learned counsel for the appellant has argued that the case property allegedly contained Charas weighing 19.980 K.G. Has not been produced in Court, hence conviction cannot be recorded to that extent; that the destruction of the above quantity of Charas by a Magistrate Section 30, even under the order of the learned trial Court, is without jurisdiction and illegal in its inception being opposed to the Statutory provision contained in section 516-A, Cr.P.C. Reliance has been placed on Nawab Ali v. The State 1995 P.S.C. (Criminal) 246 (Federal Shariat Court); and that the appellant at the most can be held liable for keeping in possession 20 grams of Charas, which falls under section 9(a) of C.N.S.A.
4. On the other hand, learned counsel for the State in opposition has argued that the learned trial Court was empowered to direct destruction of the property under section 51.6-A, Cr . P C ; the Magistrate after drawing sample destroyed the remaining crime property and certificate to that effect is Exh.P.G. And Exh.P.H.
5. We have considered the respective contentions of the learned counsel for the parties and perused the impugned judgment and record.
6. P.W.1 Muhammad Yasin, L.H.C./ Moharrir stated that Qadir Baig P.W.5 delivered him two sealed parcels for safe , deposit in the Malkhana, which was kept by him in safe custody. One parcel was sent to the office of the Chemical Examiner Lahore through Abdul Rehman, Head Constable. Abdul Rehman appearing as P.W.2 stated that parcel delivered to him by P.W.1 was deposited by him in the office of the Chemical Examiner intact on 10-3-1999. P.W.3 Dilawar Jan recorded the formal F.I.R.
Exh.P.A. On receipt of complaint sent by Qadeer Ahmed Baig, S.-I. P.W.4 Muhammad Abbas, Driver Police Station A.N.F. Lahore and P.W.5 Qadeer Ahmed Baig, Inspector Police Station A.N.F. Lahore were recovery witnesses. P.W.4 stated that on 9-3-1999, he was a member of the raiding party. At 3-00 p.m. Appellant riding on a motorcycle came from Sheikhupura side and was stopped. He had fastened a plastic "Toora" at the carrier of the motorcycle. It was concealed in a skin of goat. The bag was opened. Charas in the shape of powder 20 K.G. Was recovered. It was taken into possession. Charas weighing 20 grams was separated and made into sealed parcel through recovery memo. Exh.P.B. Signed by him and Shaukat Ali, Head Constable. Articles belonging to the appellant, Exh.P.3 to Exh.P.10, were taken into possession vide recovery memo. Exh.P.D. In cross- examination he withstood . The test and adhered to his statement that 20 K.G. Charas was recovered. 20 grams was separated for the purposes of sample. He also stated that remaining quantity of Charas sealed into parcel was destroyed under the orders of the Court and thus the said property is not available in Court except a sample drawn from said quantity. Qadeer Ahmed Baig P.W.5 recovery witness/I.O. Corroborated statement of P.W.4. In cross-examination, he conceded that 20 K.G. Charas recovered from the appellant was destroyed.
7. An . Application under section 516-A, Cr.P.C. Was filed in Court on 30-5-2000 by Assistant Director/Inspector P.S.A.N.F., Lahore, praying destruction of the recovered narcotics after retaining necessary samples of it, for production before the trial Court. Notice was issued to the accused- appellant for 16-6-2000. Due to public holiday, the case was listed on 17-6-2000 and was adjourned for 30-6-2000 directing service of notice on accused. On the application of the learned Special Public Prosecutor the date of hearing fixed in the case was shortened to 22-6-2000. On the said date without presence and service on the appellant or his counsel order for destruction was passed by the learned Special Judge A.N.F. The remaining recovered quantity of narcotics was destroyed by a Magistrate Section 30, who issued certificate Exh.P.G. And Exh.P.H. The Magistrate did not appear in the witness-box. The certificate Exh. P. G. Produced in the statement of Ch. Muhammad Suleman, Special Public Prosecutor was objected to by the learned Defence Counsel.
Cross-examination of P.W.5 indicates that sample of one K.G. Charas was obtained by the Magistrate from the remaining recovered narcotic before its destruction. He stated that the parcel of the said recovery of one K.G. Was not prepared in his presence. The said parcel has wrongly been mentioned as Exh.P.1. In fact there is no documentary proof on record of the said sample drawn by the Magistrate, before the destruction. No recovery memo. Has been prepared.
Inadvertently, reference has been made to Exh.P.1, which is in respect of recovery, took place on 9- 3-1999 of the entire-quantity weighing 20 K.G. The Magistrate did not appear in the witness-box.
There is no evidence of his drawing sample out of remaining quantity. Parcel prepared by. The Magistrate find mention in Exh.P.H. Has not been produced in Court. Thus there is no evidence of destruction and obtaining of sample from the remaining quantity of Charas weighing 19.980 K.G.
Objection was raised to production of Exh.P.S. And Exh.P.H. The trial Court after taking notice of objection observed that it. Will be attended to in final hearing. However, judgment is silent.
8. The second proviso of section 516-A, Cr . P.0 . Reads as under: -- "Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Custom Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order; 1979 (P.0.4 of 1979) or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining pottion of the property under a certificate issued by it in that behalf; ' Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court."
9. The bare reading would show that the Court mentioned in the above provision is the trial Court which alone is authorized under its own supervision and control to obtain and prepare sample of the property for safe custody and production before it or any other Court and to cause destruction of the remaining portion of the property under a certificate issued by it. The word "it" is of vital significance. Even, if it is assumed that the remaining narcotics was destroyed by the Magistrate under the supervision Of the Court but the certificate has to be issued by the Court itself. In the absence of certificate issued by the trial Court, the evidence of destruction of the remaining case property will not be considered under section 516-A, Cr .P.0 . Admittedly , the samples were not secured by the learned trial Court. Securing of samples through Exh.P.H. And the certificate of destruction Exh.P.G. Will not lend any support to the prosecution. The entire procedure adopted is without jurisdiction. The trial Court is obligated to issue a certificate of destruction. The learned counsel for the appellant has rightly placed reliance on the case of Nawab Ali (supra) wherein Honourable Federal Shariat. Court has observed as under:-- "Any laxity in the matter of securing of samples or causing of destruction of remaining case property was bound to cause disastrous consequences. Further any illegality or serious irregularity in securing sample would deprive the prosecution the benefit of treating the sample as the whole of the case property and the prosecution case may therefore, fail. Further held: That in this case the samples were not secured by the competent Court. The proceedings were taken by a Magistrate 1st Class who not being competent to try the case. Appeal accepted."
' Reference can also be had to Muhammad Ibrahim v. The State 1996 PCr.LJ 1446 in support of the above view.
10. The learned Special Judge on the application of the A.N.F. Directed issuance of notice to the accused. Without effecting service of the accused-appellant or his counsel, he on another application of the A.N.F., shortened the date of hearing and passed the order for destruction of the crime property. It was disposed of only but not decided in accordance with law. Once a notice was issued to the accused, it was bounden duty to provide him a right of hearing. Decision in the absence of either the appellant or his counsel cannot be blessed with sanctity. Drawing of sample by the Magistrate is not free from suspicion. Whether it was drawn from the same remaining quantity of narcotics allegedly recovered on 9-3:1999 is a question mark. No witness of the sample prepared by the Magistrate is available. No recovery memo. Of the sample exists.
11. Non-production in trial of the crime property weighing 19.980 K.G. Charas is fatal to the prosecution case. Conviction cannot be based in the absence of the crime property in Court unless the same has been destroyed in accordance with the law.
12. After analyzing the above facts and case-law we are of the considered opinion that the prosecution has failed to prove its case under section 9(c) of C.N.S.A. Against the appellant.
However, the evidence in regard recovery and taking of samples for Chemical Examiner stand proved by prosecution witnesses, who had no enmity with appellant. Witnesses are consistent to their statements. Chemical Examiner's report furnishes corroboration. The case of prosecution is proved to the extent of 20 grams of Charas. He is liable for this quantity under section 9(a) of C.N.S.A. D which is punishable with 2 years R.I. He is behind the bars for the last 5-1/2 years.
13. For what has been discussed above, this appeal is partly allowed. The conviction and sentence of imprisonment of the appellant under section 9(c) of C.N.S.A. Including sentence of fine are set aside. The appellant is convicted under E section 9(a) of C.N.S.A. And sentenced to two years R.I. He is behind the bars for a period of more than 5-1/2 years and has served out more than the sentence awarded. He, therefore, shall be released forthwith, if not required in any other case.