1. ' SYED PIR ALI SHAH, J.---By this common judgment we intend to dispose of two Criminal Appeals Nos.10 and 12 of 2008 filed under section 49 of CNS Act, 1997 preferred on behalf of the appellant/accused Nadeem Detho, booked in Crime No,76/2006 of Police Station Hyderi Larkana for an offence punishable under section 9(c) Narcotic Substances Act, 1997 whereby he has been convicted by the Special Judge for C.N.S Larkana with imprisonment for life with fine of Rs,200,000 and in case of default of payment of fine, for 2 years more imprisonment. He has however, been provided benefit of section 382(b), Cr.P.C.
2. ' Briefly the facts of the prosecution case as narrated in the F.I.R are that on 30-10-2006 at 1835 hours SIP/S.H.O. Imdad Ali Hulio lodged the F.I.R on behalf of the State stating therein that on the eventful day, he along with his subordinates namely A.S.-I Nawaz Ali Bhutto, PCs Muhabat Ali, Gul Sher Abdul Waheed and driver PC Imamuddin in police uniforms armed with official arms and ammunitions having investigation kit, departed from police station for patrolling in Government vehicle bearing No, SP-2044 vide entry No,16 at about 1620 hours. It is further stated in the F.I.R that during the course of patrol duty, when police party reached at Naudero Chowk, they received spy information that one person was coming from density gardens towards Jamali curve, having one carton filled with Charas on his head. Upon receiving such information police party proceeded to the pointed place and reached over there around 1700 hours, where the police-party noticed one person having one carton, on his head was coming along the road side, who seeing the police party tried to slip away, but police encircled him and apprehended him at the distance of about 25/30 paces and the carton was taken into police custody. Accused was enquired about his identity, to which he disclosed his name as Nadeem son of Nabi Bux by caste Detho R/o Bhoombhatpur Taluka Garhi Yaseen District Shikarpur. It is also stated in the F.I.R that the complainant opened the said carton and found Charas in it in shape of "Patties". Thereafter, complainant associated A.S.-I Nawaz Ali Bhutto and PC Muhabat Ali as Mashir and arrested the accused. He conducted personal search of accused during which he recovered one currency note of Rs,50 from the front side pocket of Shirt of accused. Thereafter Charas was weighed which became 15 kilograms, out of which 500 grams were sealed as sample for chemical analysis while remaining Charas 14 kilogram and 500 grams was sealed separately. Then complainant prepared such memo. Of arrest and recovery in presence of aforesaid Mashirs and brought accused along with property at Police Station where he registered the case on behalf of the State against the accused for the offence punishable under section 9 of Control of Narcotic Substances Act, 1997.
3. Trial Court framed charge against the accused at Exh.5, in which accused did not plead guilty and claimed to be tried, such plea was recorded at Exh.6. In support of its case prosecution examined complainant SIP Imdad Ali as P.W.1 at Exh.9 who produced memo. Of arrest and recovery of contraband at Exh. 9 and also produced Charas as article "A" while Rs,50 as article "B." A.S.-I Nawaz Ali was examined as P.W.2 at Exh.12. Thereafter, learned SPP closed the side of prosecution vide statement as Exh.
4. 13.
5. ' In his statement recorded under section 342, Cr.P.C, appellant/accused Nadeem has stated that prosecution evidence brought on record is false. His contention is that he is innocent and has been implicated in this case falsely. According to him, he was coming in chingchi (Rikshaw) when police took him to P.S and demanded Rs,20,000 from him which he could not arrange and Charas has been foisted upon him and he has been involved falsely in this case.
6. ' Following points were formulated by the trial court for determination:---
(1) Whether on 30-10-2006 at about 1700 hours at the Aqil Road near Jamali curve Channa Village the complainant SIP/S.H.O. Imdad Ali Hulio arrested the present accused on spy information and recovered 15 kilograms of Charas and Rs,50 from his possession in presence of Mashirs as claimed by the prosecution?
(2) What offence, if any, was committed, by the accused?
7. ' After hearing both the sides, we have gone through the entire case papers including the evidence brought on record in support of the prosecution case.
8. ' Learned counsel for the appellant has taken various grounds in this appeal which are general in nature. It is contended that the trial Court has not properly gone through the evidence adduced on record and that the impugned judgment is based on misreading of the evidence. His contention is that the prosecution has failed to prove its case against the accused beyond any shadow of doubt. He has, therefore, prayed for setting aside the impugned judgment and acquittal of the accused from the aforesaid charge.
9. ' On the other hand learned State Counsel has fully supported the impugned judgment and has stated that no material contradictions, in between the statement of the witnesses, have been pointed out and that the appeal is without any merit which may be dismissed.
10. Both the prosecution witnesses namely Imdad Ali and Nawaz Ali have deposed in an unequivocal term that on 30-10-2006 they left P.S. Haidery Larkana vide Entry No,16 at 1620 hours in police mobile for patrolling. After patrolling from different places, when they reached at Naudero Chowk, the SHO received spy information about a person having carton of Charas with him, as such, they proceeded to the place of information. When they reached near to accused, who on seeing them in police uniform tried to slip away but police encircled and apprehended him then and there.
11. ' They further deposed that they had also found accused while taking the carton on his head.
12. Personal search was conducted and police recovered Rs,50 from front pocket and 15 slabs of Charas were also recovered from the carton which was taken by the accused. On enquiry accused disclosed his name as Nadeem son of Nabi Bux by caste Detho R/o Garhi Yasin, District, Shikarpur.
13. The Charas was weighed which became 15 kilo, 500 grams Charas was separated from it for dispatching the same to the chemical examiner for obtaining report. Charas was sealed in two parcels and then accused was arrested under memo. Of arrest and recovery in his presence and in presence of PC Muhabat Ali. His statement under section 161, Cr.P.0 was also recorded by the I.O.
14. ' Both of them were cross examined but their evidence was unshaken. Their statement is in clear terms that present accused was apprehended by them on spy information and that he was possessing Charas in a huge quantity. It has come on record that 15 slabs of Charas were recovered from the possession of the accused which was weighed became 15 kilograms. Evidently, only 500 grams A Charas was taken out as sample and the same was referred to the chemical analyzer for his expert opinion. It appears that each slab was weighing 1 k.g. Both the witnesses have not specially deposed that the sample of 500 grams was taken out from one slab (half of one slab being half kilogram) from each slab was taken out which was weighed and became 500 grams as sample. Anyhow, the prosecution evidence is, concrete so far the recovery of Charas relates, but the fact remains, that the prosecution case is ambiguous as sample from each slab was not taken. In such a situation and peculiar circumstances, appellant/accused can only be held responsible for commission of offence on account of recovery of 500 grams only. Legally speaking the appellant/ accused cannot be held responsible for the rest of the recovered Charas from which no sample whatsoever was taken out and the same remained un-examined and uncertified. It can be presumed that sample of 500 grams was drawn from one slab and as such, at the most accused is liable to be punished for possessing 1 K.g Charas (one slab) from which sample was taken out and duly certified by the Chemical examiner whose expert report is available on the A record.
15. ' Of course, there are certain contradictions in between the depositions of both the prosecution witnesses but all the same such discrepancies are minor in nature and not fatal to the prosecution case. According to the record, the accused neither examined his witnesses in defence nor himself deposed on oath testifying that in fact, he was innocent and that he has been falsely involved by the police and implicated by the P.Ws. In absence of anything in rebuttal. The prosecution evidence brought on record was to be relied upon. In the instant case, the prosecution has led, impeachable evidence so far recovery of contraband Charas is concerned so also arrest of the accused on the spot. The only point arises that whether appellant/accused can be saddled for the recovery of Charas to the extent of 15 k.Gs or to the extent of one slab of 1 k.g from which presumably 500 grams were taken out as sample and referred to the laboratory for examination. The chemical examiner's report has been exhibited on record which is in positive. There are numerous authorities on the point that a person can be accused liable for punishment to the extent of recovered Charas duly certified by chemical examiner. In this context reliance can safely be placed upon 2005 MLD 386 (case of Mst. Anara Bibi v. The State) PLD 2005 Pesh. 81 (case of Muhammad Uzzair Siddiqui v.
16. The State) and 2005 PCr.LJ 1506 (Jangrez Khan v. The State).
17. ' The honourable Supreme Court in the case of Muhammad Hashim v. The State PLD 2004 Supreme Court 856, which is a full Bench judgment, has observed that when out of 288 rods allegedly recovered from the accused persons 4 grams has been taken as sample for chemical examination then accused cannot be made answerable to the entire lot, while in the case of Waris Khan and 2 others v. The State, 2006 SCMR 1051 recovery of 48 Kgs was not taken conclusively when only one packet was sent for chemical examination. This court has taken view in the case of Nazar Shah v.
18. The State 1998 PCr.LJ 1540 that when half kilogram Charas was sent for chemical examination out of 2 Kgs then the accused cannot be held responsible for entire lot. In another judgment in the case of Muhammad Chuttal v. The State reported in 2001 YLR 654, it has been held that when one Kg Charas out of 30 Kgs has been sent for chemical examination then accused can only be dealt with keeping in view his involvement in respect of 1 Kg Charas only. In another case of Imtiaz Ali v. The State reported as 2006 MLD 1961, it has been held that when 20 Kgs Charas is recovered in the shape of patties and plates and only 250 grams was sent for chemical examination and when it was not mentioned whether the sample has been taken from each patti/plate then the punishment for entire lot cannot be provided. In another unreported judgment dated 15-1-2007 in Crl. Bail Appin. No,633/2006 (Noor Muhammad v. The State), it has been observed that from 11 shoppers allegedly recovered from the accused sample was not taken from each shopper then it could not be established that all the shoppers contained contraband substance, therefore accused cannot be burdened with the allegation of 11 kgs Charas. In the said authority, reliance has been placed on the case of Imtiaz Ali v. The State reported in 2006 MLD 1961. The authority which has been cited by the learned State Counsel is in respect of the recovery of 600 grams Heroin out of which 1 gram was sent for chemical examination and it was held that the quantity of 'the sample was not fatal to the prosecution case. With utmost respect to the Hon' ble Supreme Court, we observe that in the said authority it has not been mentioned that 600 grams of heroin was in different packets or in a single packet or pieces therefore, this authority does not contradict the above view taken in the other authorities. At the most this authority justify that any quantity of sample which is sufficient for examination, can be obtained. The view of the Sindh High Court in the case of Fazal Shah v. The State reported in PLD 1999 Karachi 465 is that when 150 grams Charas was sent from 2 kgs of Charas, allegedly recovered from the accused, then the accused can be burdened with entire recovery. In that case this Court has also taken the view that there is no specific provision or settled principle of law as to whether entire quantity or what quantity of sample to be sent for chemical examination. Moreover in the said authority it is not apparent as to whether 2-kgs Charas, allegedly recovered from the accused, was in the shape of patties or in separate packets or it was a lump of 2 kgs, in such event it cannot be said that single sample from one packet/patti will testify material contained in other packets/patties etc. After going through the authorities as well as keeping in view section 9 of the Control of Narcotic Substances Act, 1997 we are of the view that when the punishment is provided on the basis of quantum of recovery of narcotic then it should be main criterion for the prosecution to establish that entire recovered substance is a narcotic etc., and for that purpose it has to take all precautions and make the case fool proof. The case against the accused is to be proved till the time of finish by establishing that the accused was involved in the matter of specific quantity of narcotic substance of which allegation has been levelled. We have noticed and it is also a matter of routine that entire recovered narcotic substance in a sealed condition remained a case property in police malkhana for a longer period and produced in Court at the time of examination. The authenticity of that substance can be questioned at any time, until a piece for chemical examination is taken from each packet or Patti or whatever may be the shape of the narcotic substance. The case property remained in possession of complainant which in most of the cases is the State through the police itself therefore, the possession of the incriminating article in the custody of complainant itself is a matter of concern, it can also happen that our honest and God fearing police officials may sometime change the narcotic substance with other similar substance to gain some money as in some cases we have noticed that F.I.Rs have been lodged against the police officials by other Govt.
19. Agencies that the narcotic substance has been changed by the complainant of the F.I.R himself as in place of Charas oil cake or stale Charas etc. By mixing with other substance has been placed.
20. Now-a-days anything can be expected keeping in view the trend of the society and specially of the police therefore, in such a situation it will be advisable that in case of narcotic substance, the entire recovered property, after obtaining sample from each pack/piece, be deposited with the court to be kept in strong room or some other proper arrangement be made. In such a way it will be possible that justice is done to a person against whom an allegation has been levelled. At the moment it has become easier for the police to show alleged recovery of any quantity and sending small quantity of narcotic for chemical Analysis and after producing two police officials as witnesses, in all respects get the accused punished to whatever sentence they want. In such circumstances , certain instruction and steps are necessary keeping in view section 516-A of Criminal Procedure Code, so the accused persons may not be left at the mercy of police who are appearing in such type of cases as a complainant, witness and custodian of the property.
21. The upshot of above discussion is that the impugned judgment requires interference by this court to the extent that the Prosecution case on the basis of evidence adduced on the record has proved its case beyond any shadow of doubt and brought guilt of the accused for the commission of the offence on account of recovery of 1 kg contraband Charas and as such impugned judgment is modified and case against the accused stands proved for an offence which falls under section 9(b) Control of Narcotic Substances Act. Accused is therefore, liable to be convicted and sentenced for recovery and imprisonment for 7 years and Rs,30,000 fine. In case of default payment of fine he has to undergo simple imprisonment for three months more. We are of the considered view that the conviction and sentence awarded by the trial court modified by this court would be enough to serve out the purpose of justice. .
22. ' For what have observed above these appeals stand disposed of accordingly.