Tariq Parvez Khan, C.J.--Our this single judgment shall dispose of three Criminal Appeals which are titled as Yousaf Gul Vs. The State (No, 547/2005), Javed Vs. The State (No, 574/2005) and Umar Khan Vs. The State (No, 659/2005). The reason for single judgment is that the three appeals have arisen out of single judgment dated 14.7.2005 authored by learned Presiding Officer of the Court under the CNSA.
2. All the three appellants have been sentenced to undergo life imprisonment each and to pay a fine of Rs, 2 lac each or in default to one month S.I. each.
3. As per charge framed against the appellants and the evidence led at the trial, it is alleged that on 29-8-2003, the three appellants while travelling in a Motor car with Registration No, 4577 LOR were intercepted by the ANF staff, comprising of Mati-ur-Rehman Constable, Samin Jan Khan Inspector and other contingents and when the vehicle was stopped and searched it was discovered that a huge quantity of narcotics was concealed either in the luggage boot or in the foot mate.
Taking safety measures and keeping in view the huge quantity of narcotics, it was deemed proper that instead of making weighment at the spot, the vehicle alongwith accused were taken to the Police Station ANF.
The accused and the vehicle when reached the Police Station, thorough search was made and during the search the police has recovered 325 Kg. of charas which was found in 13 bags. There were other 81 packets of chars, making the total 406 Kg. of chars. Yet another packet of opium weighing one Kg. was recovered.
4. It has come in evidence that Samin Jan Khan Inspector who appeared as PW. 3 has taken out one gram each from each packet who then prepared 15 parcels of 25 grams each, has given them Parcel No, 1 to 15, has prepared another parcel of 31 grams with Parcel No, 16 and yet another parcel of four grams of opium, giving it No, as 17. All these samples were sent for chemical analysis and the reports that was received in respect of Charas and Opium are Ex.PW.3/3 and Ex.PW.3/4.
5. We have heard the learned counsel for the appellants and the learned Special Prosecutor Mr. Salahuddin Khan.
6. The appeals are argued on the premises that there are contradictions in the statements of the witnesses, i,e, PW.2 and PW.3; that if the contrabands were found in the Motor Car near Afridi Petrol Pump at Peshawar Kohat Road, the report should have been recorded then and there in the shape of Murasila and weighment should have also been made on the spot but instead all investigation which should have been made on the spot, was shifted to the Police Station. They also argued that the destruction of the case property under Section 516-A Cr.P.C. has not been legally proved because the Judicial Magistrate who has issued the Destruction Certificates and has exhibited the same as Ex.PW.3/7 & Ex.PW.3/8 including the list Ex.PW.3/11 did not appear in the witness box and, therefore, the three documents have gone unproved. Their next contention is that when the accused were examined under Section 342 Cr.P.C. they were not specifically asked as to the preparation of samples under Section 516-A Cr.P.C. by the Magistrate in respect of Charas because the question refers to only Opium.
7. The learned Special Prosecutor, however, argued that the presence of the appellants have gone unchallenged as except for Javed appellant, the remaining appellants have admitted their presence on the spot whereas Yousaf Gui says that he is a Taxi Driver while Umar Khan accepts his presence to be the person who has asked for the lift from Yousaf appellant. He further argued that huge quantity of the narcotics that was lying either in the luggage boot or under the foot mate was recovered from the vehicle which was under the control of the three appellants, therefore, by virtue of Section 29 of the CNSA, there is statutory presumption of possession of narcotics which has not been rebutted by any of the appellants. He further argued that neither PW.2 nor PW.3 was having any reason for making false charge against the appellants particularly when the quantity of the narcotics recovered is huge and could not be said to be planted one. He submitted that the destruction certificate prepared by the Magistrate has been duly exhibited without being challenged by the Defence. Therefore, at appellate stage they cannot take any exception to the admissibility of the said documents.
8. No doubt that charge against the appellants is regarding recovery of 406 Kg. charas and one Kg. opium, but the fact remains that though admitted by Samin Jan Khan Inspector PW. 3 that there were 406 packets of charas and each packet was weighing One Kg. but instead of preparing 406 samples, he prepared 16 parcels i,e, 15 parcels of 25 grams each and one parcel of 31 grams of chars and the third parcel of opium which was given Parcel No, 17.
9. We failed to understand if he was taking one gram from each packet of one kg., what stopped him not to take more than one gram from each packet and to prepare as many number of parcels as were the packets.
10. It has been ruled in number of judgments by this Court that where case of the prosecution is that there were packets of one Kg. and where the prosecution wants to prove that each packet is of charas, then samples should be taken from each packet separately and shall be sent for chemical examination. In this case, besides 17 samples as detailed above, yet two parcels were prepared by the Magistrate while he was proceeding under Section 516-A Cr.P.C. and, he has admitted in his Certificate that he took 10 grams each from 16 packets i,e, from Parcel No, 1 to Parcel No, 16, as prepared by the Investigating Officer. The purpose of taking samples by the Magistrate before the case property is destroyed is to preserve the samples for its production before the trial Court as there is again statutory presumption that samples taken under Section 516-A Cr.P.C. are to be taken not as a part but as whole of the case property.
11. When so much sanctity is given to the process of destruction of the case property by the Magistrate, then the Magistrate who supervised the destruction of the case property should have been examined as a witness to prove not only that the case property was destroyed in his presence but also to prove that it was the case property of the case under trial and also to prove that the samples taken by him were part of the case property destroyed.
12. Where the prosecution could have produced the Magistrate but failed to produce then in given circumstances depending on case to' case, the evidentiary value with regard to the destruction of case property would lose its sanctity.
13. If we look at the evidence of the present case where prosecution could produce better evidence to prove that the whole quantity recovered was nothing but narcotics but they had failed in discharging their duties except to the extent of taking samples by the Magistrate and the samples received by the. Laboratory for chemical analysis.
14. There is yet another lacuna in the case of the prosecution that the Magistrate has prepared two samples under Section 516-A Cr.P.C. which were duly exhibited during the trial through the statement of PW. 2 but yet when the accused were examined under Section 342 Cr.P.C., they were confronted with the sample of opium and not regarding the Samples of the charas.
15. After thorough scrutiny of the case file and hearing both the sides, we are of the opinion that there can be no denial that the three appellants were arrested from the Motor Car in question and that from the Motor Car, narcotics were recovered. However, question would be as to what quantity of narcotics recovered has been proved by the prosecution, to be in fact the narcotics. As only 16 parcels of charas each weighing 25 grams were prepared which makes the total to be 406 grams and because the Magistrate has taken samples total weighing 160 grams of charas which still makes the total of 566 grams of charas and if it is presumed that they were taken from 5 different packets making it to be total quantity of 5 Kg. of charas plus one Kg. opium, the case would be taken out of the purview of Proviso to Section 9(c) CNSA.
16. We, therefore, hold that the prosecution has proved guilt of the accused but to the extent of total recovery of 6.660 Kg. of narcotics. Resultantly, all the appeals are partially allowed. The conviction of the appellants recorded by the trial Court stands maintained but under first part of Section 9(c)
CNSA and not under its Proviso. The sentence of life imprisonment is reduced to six years each.
Similarly, the fine amount of Rs, 2 lac each is also reduced to Rs,one lac each or in default of payment of fine, each of the appellant shall undergo six months S.I., also extending them benefit of Section 382-B Cr.P.C.
When we have maintained the conviction but have altered the sentence it shall not affect the order of the learned trial Judge regarding forfeiture of the motor car bearing No, 4577-LOR.