' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 22-7- 2006 passed by the learned Special Judge. C.N.S., Sukkur by which the learned Judge convicted the appellant for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, sentenced him to suffer R.I. For 14 years and fine of Rs,200,000 or in default thereof to suffer R.I. For one year with benefit of section 382-B, Cr.P.C.
2. Brief facts giving rise to the present Appeal are that on 30-9-2003 at 11-45 .a.m. The complainant Abdul Hakeem, Excise Inspector along with his subordinate staff stopped the bus bearing No,P- 2595 on National Highway near Tando Bhooro, Taluka Rohri, District Sukkur as the bus was' coming from Peshawar side. The police party entered the bus where they found a passenger sitting on seat No,32 in a suspicious condition who was carrying a bag which was lying in his lap. On inquiries that person disclosed his name as Syed Qamar Ali Shah, the appellant. The appellant was brought out from the bus. The complainant secured the said bag and found 5 packets of charas weighing 1 kg.
Each total weight 5 kg. The complainant separated 100 grams from each packet and prepared 5 samples and sealed them. The appellant and the property were brought to the Police Station where the complainant lodged the report. The police after usual investigation challaned the appellant in the court where he was tried and convicted as mentioned above under the impugned judgment.
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 statement of P.Ws. Are contradictory to each other; that the Investigating Officer did not examine the driver, conductor or cleaner of the bus; that when the property was produced in the Court it was in un-sealed condition; that the appellant had challenged that the said property was not heroin but the prosecution did not send the property to Chemical Analyzer for examination and report; and that at the most the appellant would be held responsible for 500 grams.
5. Conversely, the learned A.A.-G. Has stated that the contradiction pointed out by the learned advocate for the appellant are minor in nature; that the witnesses have fully supported the case; that the Chemical Analyzer's report is in positive; and that the complainant has explained about the production of property in court in non-sealing condition by taking the plea that the property room had collapsed, therefore, a large number of properties were damaged including the property of the present case.
6. At the trial the prosecution examined two witnesses viz. Complainant Abdul Hakeem and mashir Zarar Ahmed. They specifically stated that the appellant was sitting in suspicious condition in the bus and a bag was lying in his lap. The appellant came out from the bus along with the bag. After opening the bag it was found to contain 5 packets of heroin powder weighing 1 kg. Each. Hundred grams were separated from each packet for sending them to Chemical Analyzer for examination and report. Both the witnesses were subjected to lengthy cross-examination but nothing came on record to discard their evidence. The learned advocate for the appellant has pointed out only three contradictions: (I) about the name of persons who boarded the bus when it was stopped; (2) about the number of adjoining seat; and (3) about the time of departure of the bus. All the three contradictions are minor in nature because through these contradictions basic story of the prosecution has not been changed or through these contradictions improvements have been made so as to strengthen the case of the prosecution as such, these contradictions do not come within the definition of major contradictions, hence they can be safely ignored. Minor contradiction can appear when the evidence is recorded after lapse of one year. Particularly, when both the witnesses are Excise Officers who must have detected various cases of similar nature. As regards the production of property in un-sealed condition, the complainant has explained the position by stating that the property room had collapsed, therefore, the properties were damaged and the seal might have been removed during that process. The said statement of the complainant went unchallenged as there is no cross-examination to the witness on the said aspect of the case.
7. As regards the sending the property to the Chemical Analyzer on the ground that the appellant had denied the fact that the remaining property was heroin. It is pointed out that at the time of recovery of heroin from the possession of the appellant, the complainant had prepared sample from it. When a sample is prepared from the property then it will represent the entire property .
Such observation is supported from provisions of section 516-A, Cr.P.C. As under its last proviso, the sample prepared before the destruction of the property is required to be taken to be whole, property. Thus the sample prepared in this regard would be deemed to be whole property. The Chemical Analyzer has opined that the contents of the sample were heroin, therefore, the remaining property would be deemed to be heroin. Thus, the prosecution has proved the said. Fact.
8. In presence of above proved fact, the appellant has challenged that the property lying in the Court was not heroin, therefore, he was required to prove such fact so as to disprove the fact, which the prosecution has proved. For that purpose he should have moved the trial Court for sending the entire property to Chemical Analyzer for examination and report. He did not do so. He also did not request this court for sending the property for expert opinion, as such, the appellant has failed to prove his defence. The Hon'ble Supreme Court of Pakistan also took the similar view in a case of Ali Muhammad v. State 2003 SCM R 54, at page 58 it has been observed as under:-- "In case the appellants' defence would have been that contains _ of entire case property so recovered was not Charas they could have made an application to the trial Court or before the High Court for re-examination of the entire case property which was also produced in the trial Court as article 'A' having not done so, such plea cannot be said to have merit and substance considering also that the said plea being plea of the fact, would require detailed enquiry and re- examination of the narcotic substance which cannot be'gone into by this court at this stage."
9. 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 reasonable doubt but the sentence appears to be on higher side, therefore, it was reduced from 14 years to 10 years while passing the short order dated 16-8-2007 by which we had dismissed the appeal with the above modification in the sentence. These are the reasons of the said short.Order.