Dost Muhammad Khan, J.--Appellant Muhammad Uzair Siddiqui, upon conviction bas been. sentenced to life imprisonment with a fine of Rs, 20,000/- for crime under Section 9 CNS Act. He was further sentenced under Sections 417/418/468 PPC to 3 years R.I with a fine of Rs, 10,000/- by the learned ASJ-III, Swabi vide judgment dated 23.2.2004.
2. Brief facts of the case are that on a tip off, Nisar Ahmad S.I of Police Station Akora Khattak (PW.4) on 5.1.2003 apprehended the appellant at 12.30 hours while travelling in Jeep No, A-2726/Peshawar.
On search of the Jeep, from its alleged secret cavities 43 packets containing "Charas" each one weighing 1 K.G was recovered. Two registration number plates IDG2763, two registration number plates ADA/2712 abbottabad. Two other registration number plates MNH-9339 and IDG-9293 were also recovered. Total 41 samples each 4 grams were separated/prepared from the bulk of the quantity for Export examination. The appellant was arrested and at the conclusion of investigation, charge-sheet was filed in the trial Court. Trial commenced before the learned Sessions Judge, Swabi but later on it was transferred to the diary of learned ASJ-III, Swabi.
3. At the trial, prosecution examined four witnesses in all, out of whom Muhammad Fayaz ASI (PW.1) is marginal witness to the recovery memos while Nisar Ahmad S.I (PW.4) is the Investigating Officer, who filed charged sheet against the appellant in the trial Court after completion of investigation.
4. The learned defence counsel took exception to the findings of the trial Court and the conclusion drawn by it from the evidence on the quantity of "Charas" (narcotics). She argued that the entire bulk of the quantity was allegedly destroyed pending trial on the request of prosecution but no legal proof was furnished nor any evidence has been adduced to substantiate/establish this fact, therefore in the absence of proof, appellant cannot be held guilty for having in his possession "Charas" weighing 43 K.Gs and this fact would have an adverse impact on the quantum of sentence as well.
Confronted with the above anomaly, learned Additional Advocate-General sought adjournment for one day to verify this fact by requisitioning the original record which was allowed and we also directed that the daily diary dated 5.1.2003 of the Police Station be produced to see that the SHO/Investigating Officer has mentioned his departure for the arrest of the appellant on a prior information or it is otherwise.
5. Today, the daily diary was produced and on perusal we did not find entry with reference to the above case regarding secret information allegedly received by the S.H.O.
On perusal of record a certificate issued by a Magistrate showing the preservation of 500 grams sample of "Charas" for purpose, of producing at trial was found but with no details about the present case.
6. The learned trial Judge while recording the statement of Nisar Ahmad (PW.4) has recorded a note/observation that only photo-copy of the certificate and list containing different narcotics having been destroyed was produced but subject to the objection raised by the defence. For this reasons no exhibit mark was put on these documents and the same were never made part of the record. Neither the prosecution nor the learned trial Judge has thereafter taken this aspect to its logical conclusion because the original documents were never brought on record nor the photo- copy was made part of the evidence by comparing the same with original.
In the challan dated 30.4.2003 the recovered "Charas" weighing 42.828 K.Gs was shown as case property in Column No, 4 giving rise to an inference that by then it was available and was not destroyed. The certificate available on record appears to be attested copy and not the original one which too was not exhibited on record. The 'order-sheet of the trial Court dated 7.1.2004 contains reference to this certificate but it was not made part of the record as by then the prosecution evidence was already closed and the case was listed for the statement of the accused. No effort was made to bring on record the original of this certificate to use as an evidence. Similarly the Magistrate who had issued the same after conducting alleged destruction process of case property was not produced. No request was made to examine him as Court witness. The trial Judge too has not recorded any note/observation regarding comparison of the original with the attested copies or photo-copies. The certificate issued is also inconclusive and indescriptive as the same pertains to many cases but no description of any one is given. The crime number (FIR No,); the date of occurrence and the Police Station has been omitted therefrom. Names of the accused and title of the cases is also not shown. The destruction shown in the photo-copy is stated to have been carried out on 4.10.2004.
7. The sample containing preserved quantity of 500 grams of "Charas" was allegedly prepared by a Head Constable as was stated by PW. 4 but he too was withheld from the Court and also his name and other particulars are unknown. The combined study of all the above facts lead us to the conclusion that the prosecution has failed to establish beyond reasonable doubt that 43 K.Gs of "Charas" was recovered from the possession/control of the appellant.
8. The object and intent of the law makers behind enacting Clause (c) of Section 9 CNS Act providing deterrent punishment was to suppress the mischief of trafficking, transporting, importing or exporting narcotics substances at large scale.
To inflict capital punishment of death or that of life imprisonment, the prosecution is under statutory obligations to furnish the first degree of proof through high quality evidence reasonably creating nexus of an accused with the commission of the offence.
To establish that particular quantity of narcotic was recovered from the accused, prosecution is duty bound to establish by leading, evidence to that effect because the proviso to sub-section (4) of Section 33 of the C.N.S. Act requires that pending enquiry or trial the bulk of narcotic substance is to be .disposed of/destroyed according to the procedure laid down by the provisions of Section 516-A Cr.P.C. The second proviso to the said provision being much relevant in the context is reproduced below:-- 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 Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O 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 portion of the property under a certificate issued by it in that behalf."
Most important in the above provision is its deeming clause contained in third proviso which is reproduced below: "Provided also that such samples shall be deemed to be whole of the property in any inquiry or proceedings in relation to such offence before any authority or Court".
9. All the three clauses i,e, (a), (b) and (c) of Section 9 C.N.S. Act provides different quantum of sentences of imprisonment including death sentence depending entirely and exclusively on the quantity involved. Clause (a) provide maximum sentence of two years or with fine or with both if the quantity involved is 100 grams or less, Clause (b) provides the maximum sentence upto 7 years R.I. if the quantity involved exceed 100 grams but does not exceed 1 K.G while Clause (c) provides death or imprisonment for life or imprisonment upto 14 years and fine upto one million rupees if the quantity involved exceeds the limit specified in Clause (b). However, the most severe punishment/sentence is provided in third proviso when the quantity exceeds 10 K.Gs the punishment is death and shall not be less than imprisonment for life.
10. The study of the above provision of law would show that the severity of punishment has direct nexus with the quantity of narcotics recovered from an accused. The prosecution duty is, therefore, two fold, firstly that it is to establish the guilt of an accused for having in his possession or under his control the contraband narcotics and secondly to I establish through evidence the particular quantity said to have been recoved. In the second case if no evidence is adduced to prove the exact quantity recovered from an accused, ordinarily Court would be unable to award the sentence prescribed by Clause (c) or for that matter the one under the third proviso to Clause (c).
11. Whenever the prosecution requires the Court to draw an inference that the sample preserved shall be construed to be the entire bulk of the narcotics having been destroyed through the order of the Court, it shall bring on record the written permission granted by the trial Court and the certificate of its destruction issued either by the trial Judge or the Magistrate supervising such process which shall contain all reasonable details and reference to the FIR No,, the date of occurrence, the title of the case with particulars of the accused, the section of law applied and the description of the Police Station where the case was registered and of course the date, time and place where the narcotics were destroyed. Both these documents are to be brought on record in evidence and for that purpose at least the Magistrate who supervise the process of destruction is to be produced alongwith the police officer/person who, has separated the samples from the bulk for production at the trial otherwise it would difficult for the Court to draw the required inference envisaged by the third proviso to Section 516-A Cr.P.C., more particularly in a case where defence denies the recovery of particulars quantity of narcotics from accused person.
12.One intriguing aspect of the instant case is that on 20.8.2003 during the evidence of PW.1 exhibit mark P-1 was given to the rest of the quantity of "Charas" but the order-sheet of the trial Court of the same date show that the case property was not before the Court as the same was requisitioned from the ,prosecution for the next date which was never produced at any stage. This exhibit mark so given is of no help to the prosecution because the case property was not before the Court even on 30.9.2003, as is evident from the order-sheet because of the objection of the defence. The Public Prosecution on 4.11.2003 submitted an application for requisitioning the original record regrading the destruction of the same and again on 1.12.2003 an application was submitted to summon the Moharrir Mall Khana to produce the original order of destruction. This request was again opposed by the defence whereafter the matter was not taken to any logical conclusion either by the trial Court or the prosecution itself.
It is settled principle of law and justice that no one shall be construed into a crime in the absence of legal proof/evidence. On the available record and the one produced today, it is, difficult to hold that in fact 43 K.Gs of "Charas" was recovered from the appellant as a legend by the prosecution.
13. The prosecution has succeeded proving the guilt of the appellant to the extent of recovery of 172 grams of "Charas" from his possession because that much quantity was sent to the Chemical Examiner whose report being part of the evidence is in the positive, thus from the evidence PW-1 and PW-2 the marginal witness to the recovery memo and Investigating Officer respectively, we are of the firm opinion that the appellant's guilt has been proved to the extent of having in his possession 172 grams of "Charas" and not 43 K.Gs. In such circumstances, the appellant is, therefore, not liable to be imprisonment for life term.
For what has been discussed above, this appeal is partially allowed and while maintaining the conviction of the appellant but under Section 9 Clause (b) C.N.S. Act, the sentence of life imprisonment awarded to him by the trial Court vide impugned judgment is reduced to three years R.I with a fine of Rs, 20,000/- or in default whereof he shall suffer simple imprisonment for two months. The conviction and sentence of the appellant under Section 417/418 PPC on the basis of evidence adduced by the prosecution is established and is, therefore, kept intact. The order of the trial Court directing that both the sentences shall run concurrently is maintained. The benefit of Section 382-B Cr.P.C. is extended to the appellant.