Muhammad Akhtar Shabbir, J.--This petition for leave to appeal is directed against the judgment, of the Peshawar High Court, Peshawar dated 14.10.2008 passed in Criminal Appeal No, 178/2006.
2. The facts giving rise to the filing of the present petition are to the effect that on 11.11.2004 at about 3.00 p.m., Muhammad Shah Khan, SHO PW3, along with Police party, while on patrol duty, laid a barricade and as soon as pick-up No, B-2325/DR reached there, from Mangal Chahi side, it was signaled to stop. The said Pick-up was being driven by Sarfaraz, respondent while the other person sitting with him on the front seat was Wahid-ur-Rehinan, respondent. Both of them were asked to step down and on search from the back of the front seat, five packets of opium weighing 25 K.Gs, one small bag containing -12 K.Gs of opium, were recovered while from secret cavities of the rear portion/body of the pick-up, 4 packets of opium i,e, 21 K.Gs. and from another side 4 packets of opium weighing 22 K.Gs. were recovered. Samples out of the recovered narcotics material and the remaining quantity thereof were separated and sealed into separate parcels. Two .30 Jolt pistols with 11 cartridges without licenses were also recovered from the possession of both the accused.
On information through Murasila report, FIR No, 237 had been registered at Police Station IDS Swabi on the same day. After investigation of the case, the accused/respondents were challaned to the Court of competent jurisdiction. After recording the prosecution evidence, the trial Court convicted the accused/respondents under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life with a fine of Rs,50.000/- or in default thereof to undergo one year imprisonment, each, vide- judgment dated 15.3.2006. Benefit of Section 382-B Cr.P.C. was extended to them. They challenged their conviction and sentences through Criminal Appeal No, 178 of 2006 before the Peshawar High Court, Peshawar, which was partially allowed, vide . the impugned judgment, their conviction was altered from Section 9(c) to 9(a) of the Act ibid and the sentences were reduced from imprisonment for life to two years R.I. with a fine of Rs, 20,000/- or in default to undergo two months S.I each. Benefit of Section 382-B Cr.P.C. extended to them by the trial Court was maintained. Hence this petition.
3. Learned AAG appearing on behalf of the petitioner contended that the judgment of the High Court is suffering from legal and factual infirmities; that the prosecution had proved its case beyond reasonable doubt; that the huge quantity of opium recovered from the accused/respondents was destroyed in accordance with Section 33 of the Act ibid and Section 516-A Cr.P.C; that CW1 and CW2 appeared before the Court and proved that the opium recovered from the possession of the respondents had been destroyed and in this respect they have produced a certificate; that the report of the Chemical Examiner with regard to the samples of the opium was positive; that as per proviso to Section 516-A Cr.P.C. such samples would be deemed to be the whole of the property in relation to such offence before the Court. He placed reliance on Sarfraz Gul Vs. The State (PLD 2004 SC 334).
4. We have heard the arguments of the learned Law Officer, perused the record with his assistance.
As per the prosecution story, Muhammad Shah Khan, SHO, PW3/ complainant had effected recovery of 80.00 K.Gs. of opium from the vehicle used in transportation of the narcotics material, being driven by Sarfraz, respondent while Wahid-ur-Rehman, respondent was seated on the front seat. On disclosure by Sarfaraz that the aforesaid narcotics had been purchased by him from. Sher Zamin, co-accused while the same was his joint property 'with the other co-accused, Mehruban Shah. Before the trial Court, the total quantity of the opium recovered from the respondents had not been produced by the prosecution as the same had allegedly' been destroyed by the Magistrate under the orders of the learned Addl. Sessions Judge-III, Swabi. The quantity established at the trial was the one which was placed in the samples for expert opinion, weighing 70 grams in all. As argued by the learned Law Officer that such samples would be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court as the narcotics material/opium other than the samples was destroyed and a certificate in this regard has been produced in evidence before the Court. Section 516-A of the Code of Criminal Procedure contemplates as under: -- "516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay. may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: (Provided that if the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in such substances)
(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: Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or Court.)"
Nihar Ali, Incharge Moharrir Malkhana, was produced before the trial Court as CW1 to prove the destruction certificate and other documents with regard to the destruction of the bulk of the narcotics material. As per his statement, all these documents were not made part of the record when the challan was submitted to the Court and the certificate issued by the Magistrate Ex. CW (1/4) did not bear the FIR Number, are date of occurrence, the sections of law, the name of the police station, the quantity of narcotics and its kind. The learned AAG has based his arguments on the case of Sarfraz Gul Vs. The State (PLD 2004 SC 334), wherein it has been laid down by this Court that production of entire recovered narcotics in the Court was not a mandatory requirement and certificate for destroying the recovered heroin and opium had been produced in the Court to substantiate the factum of recovery, therefore, the impugned judgment based on forthright and credible evidence, did not call for interference. The point to be examined in the instant case is, whether the remaining quantity of the recovered narcotics material (opium) had been destroyed in a transparent manner as provided in Section 516-A Cr.P.C. read with Section 33 of the Control of Narcotic Substances Act, 1997. CW2, Inamullah Khan, Judicial Magistrate, Swabi, who had supervised the destruction process, admitted that in the permission/ order of the learned Sessions Judge, Swabi, Ex.CW 1/3 the FIR number, the date, the section of law, the name of Police Station, the quantity of narcotics and its kind had not been mentioned and these documents were produced for the first time before him in the Court by the Moharrir Malkhana and in the certificate Ex.CW 1/4 the position was almost the same.
6. It is pertinent to note that whenever the prosecution wanted the Court to draw an inference that the samples preserved would be construed to be the entire bulk of narcotics as provided in third proviso to Section 516-A of the Code of Criminal Procedure, having been destroyed under the order of the trial Court, the prosecution would bring on record the written permission granted by the court and the certificate of its destruction issued by the learned trial Judge or the Magistrate, supervising the destruction process and it would contain all such details with reference to FIR Number, the date of occurrence, title of the case, particulars of the case, the section of the law applied, description of the Police Station where case was registered and date, time and place where narcotics have been destroyed and these documents are required to be brought on record in evidence and for that purpose the Magistrate who supervised the destruction process was to be produced alongwith the Police Officer who had taken samples from the bulk for production at the trial. In the instant case, neither any such detail is mentioned in the certificate issued by the Magistrate nor such documents have been produced in evidence. There is no evidence to establish that the samples secured from the narcotics material are the same which have been taken from the remaining/destroyed material. If the prosecution fails to prove this factum before the Court by producing such type of evidence, it cannot be presumed that such huge quantity of the narcotics material had been recovered from the respondent. As per the prosecution story 80 K.Gs of charas had been taken into possession by the complainant, Muhammad Shah Khan PW3 from the vehicle used in commission/transportation of the said narcotics material being driven by Sarfaraz/Respondent No, 2
7. The prosecution has not been able to connect the separated narcotics material with the whole quantity recovered from the possession of the respondents. The procedure required for destruction of the remaining quantity of the narcotics material has neither been adhered to nor it has been proved in accordance with law. There is no evidence on the record to establish that the quantity of the narcotics material claimed by the prosecution, in fact had been recovered from the respondents. The learned trial Court has rightly observed that the quantity shown in the report of the Chemical Examiner Ex.PK weighing 70 grams was the recovered material and produced before the Court. In view of the above discussion, we find that the High Court has validly reduced the sentence of the respondents from imprisonment for life to two years R.I with fine of Rs, 20,000/- or in default thereof to suffer two months S.I. After appraisal of the prosecution evidence and the record, we do not find any illegality, infirmity in the impugned judgment, warranting interference by this Court.
8. For the foregoing reasons, this petition being sans merits is dismissed and leave to appeal refused.