' RAHMAT HUSSAIN JAFFERI, J.---Brief facts given rise to the present appeal are that on 26-12-2003 the complainant Sher Khan, Excise Inspector, Special Squad Hyderabad received spy information that a person with narcotic substance was present near the petrol pump. On the said information that complainant along with his Excise Police Party reached the pointed place at 9-00 p.m. Where he found a person standing having a basket in his hand. The said person was apprehended. On inquiries he disclosed his name as Shabbir Ahmed, the present appellant. The complainant secured a basket from his hand. On opening the basket, it contained 8 pieces of Charas weighing 8 Kg. Out of them 10 grams of Charas were drawn as sample for the purpose of sending it to the Chemical Analyzer for examination and report. The property was sealed at the place of incident and such Mashirnama was prepared. The Excise Police brought the accused and the property to the Police Station where the complainant lodged report at 10-00 p.m.
2. The police, after usual investigation, challaned the appellant in the Court where he was tried and convicted for offence punishable under section 9(c) of the Control of Narcotic 'Substances Act, 1997 and sentenced to suffer imprisonment for 14 years and fine of Rs.300,000 or in default thereof to suffer RI for 1 year more with benefit of section 382-B, Cr.P.C. Under the impugned judgment dated 22-11-2004.
3. We have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
4. The learned Advocate for the appellant has stated that the entire property was not sent to the Chemical Analyzer but only 10 grams were sent. Therefore, the appellant is liable to be convicted for 10 grams only. He has relied upon Muhammad Hashim v. State (PLD 2004 SC 856). He has further stated that there is delay of 3 days in sending the property to Chemical Analyzer, which has materially affected the Chemical Analyzer's report; that the private Mashirs were available at the scene of incident but they were not taken as Mashirs, therefore, the case of prosecution is highly doubtful.
5. Conversely, the learned A.A.-G. Has stated that the sample of only 10 grams were sent to the Chemical Analyzer which represented the entire property. Therefore, there is no defect in sending the property to Chemical Analyzer. He has relied upon Ali Muhammad v. State (2003 SCM R 54) and Nadir Khan v. State (1988 SCM R 1899). He has further stated that in the authority reported in Muhammad Hashim v. State (PLD 2004 SC 856) the earlier authorities of Honourable Supreme Court of Pakistan were not considered, which were of equal Benches, therefore, the subsequent authority would come within the ambit of judgment per incuriam as held in Province of the Punjab v. Sher Muhammad Zafar Bukhari (PLD 1997 SC 351), therefore, it is to be ignored. He has further stated that delay of 3 days in sending the property to the Chemical Analyzer is not fatal to the prosecution case as the delay was consumed in obtaining sanction from the higher officer. He has also stated that the provisions of section 103, Cr.P.C. Are not applicable in view of section 25 of the Control of Narcotic Substances Act, 1997. Therefore, the prosecution case has been proved in accordance with law.
6. We have given due consideration to the arguments, gone through the material available on the record and found that the prosecution, in order to prove the case, examined two witnesses viz. Complainant Sher. Khan and P.W.2 Mashir Excise Constable Sikandar Ali. Both the witnesses gave same details of the incident as mentioned in the earlier part of the judgment. From the statements of both these witnesses it is clear that the appellant was caught having a basket in his hand. On opening the basket it contained 8 pieces of Charas weighing 8 kg., out of which 10 grams were drawn as sample for sending it to the Chemical Analyzer. The.. Chemical Analyzer's report has been produced in the evidence as Exh.6/C which shows that the property was Charas. As such, it has been established beyond any shadow of doubt that the property secured from the possession of the appellant was Charas.
7. The learned Advocate for the appellant has mainly argued that only 10 grams were sent to Chemical Analyzer, therefore, the appellant will be responsible for 10 grams only and has relied upon Muhammad Hashim v. State (PLD 2004 SC 856). In the above case out of 288 rods, sample was drawn from one rod, therefore, it was held that only one rod was proved to be Charas and remaining rods were not held to be Charas without the examination of Chemical Analyzer.
Nevertheless, the earlier view of the Honourable Supreme Court of Pakistan as reported in Nadir Khan v. State (1988 SCM R 1899) and Ali Muhammad v. State (2003 SCM R 54) of equal Benches is that the sample drawn from one slab of Charas or bag of Charas out of several slabs and bags recovered from the possession of the accused would represent the entire property. Therefore, the report of Chemical Analyzer with regard to the sample would also represent the entire property and the same was not found to be illegal.
8. There are two conflicting decisions of the Honourable Supreme Court of Pakistan. At this stage, we are not going to examine as to which decision is correct or otherwise. It is for the Honourable Supreme Court of Pakistan to clarify the said position. However, we are also not going to examine the question of judgment per incuriam as laid down by the Honorable Supreme Court of Pakistan in the case of Province of the Punjab v. S. Muhammad Zafar Bukhari (PLD 1997 SC 351). Nevertheless, we are of the view that in such a situation, the better and safer course will be to repeal the arguments so that the party may approach the Honourable Supreme Court of Pakistan to get the required clarification. Hence the arguments are repealed. In the present case the witnesses did not specifically state that 10 grams of Charas were drawn from one packet only, but they stated that 10 grams of Charas were drawn from the property. In these circumstances, the fact remains that the 10 grams drawn as sample from the entire property has been opined to be Charas.
9. As regards the delay in sending the property, the property was secured on 26-12-2003. The same was dispatched on the next day viz. 27-12-2003 but it was received by the Chemical Analyzer on 30-12-2003. There is no allegation of the appellant that the property was tampered with during the process of transit or the remaining property was not Charas. It was for the appellant to have taken such pleas before the trial Court but the appellant did not do so. However, we have examined the Chemical Analyzer's report and found that the sealed packet was received by him which contained the signatures of both the Mashirs. In the absence of any allegation of tampering with the property the arguments of the learned Advocate for the appellant are not sound.
10. As regards the association of private witnesses, suffice it to say that provisions of section 103, Cr.P.C. Are not applicable to the facts and circumstances of the case in view of the provisions of section 25 of the CNS Act. Reliance is placed on State v. Muhammad Amin (1999 SCM R 1367).
11. As regards the non-association of private witness it has been brought on record through the cross-examination that the private witnesses were available and they were asked to act as Mashirs but they declined as they ran away. The tendency of private persons to avoid to become witnesses in such type of cases has also been examined in the case State v. Muhammad Amin (1999 SCM R 1367) and it has been observed that for various reasons the private persons do not come forward to become witnesses in this type of cases to avoid animosity with the drug smugglers or fear of reprisals in view of the present deteriorating law and order situation of the country.
12. As regards the defence, the appellant did not examine himself on oath or lead any evidence to prove the allegation of his false involvement.
13. After considering the material available on the record we are of the considered view that the prosecution has proved the case against the appellant beyond any shadow of doubt, therefore, the appeal is dismissed.