The instant appeal has been referred to this Bench to resolve the controversy having been arisen due to dissenting judgments, given by my two learned brothers i,e, Hon'ble Mr. Justice Ejaz Afzal Khan, J, and Hon'ble Mr. Justice Jehanzaib Rahim, J.
2. Arguments heard and record perused.
3. Full reappraisal of the evidence is not required because, in both the dissenting judgments, the entire evidence has been discussed, however, for proper disposal of the appeal on the law point involved, some relevant facts require brief discussion.
4. In the main judgment, written by his lordship Hon'ble Mr. Justice Ejaz Afzal Khan, J, the evidence discussed is to the effect that appellants, Shahid-ur-Rehman and Mst. Farzana, who are husband and wife, were apprehended on 23.05.2007 near bus stop Pir Pai G.T. Road, while traveling in a Suzuki Motorcar No, BRD-380.
5. On search, from beneath the seat of the driver/male-accused, a shopping bag containing 8.400 KGs of charas powder and a small packet containing 200 grams of opium was recovered while on personal search of the lady-accused, 12 packets containing thin slices of charas weighing 12 KGs was recovered. The lady-accused was having a small kid/her son at the time of arrest.
6. According to the evidence, samples of 10 grams each from one slice of each packet was taken for expert opinion while each packet was containing 14 slices. The expert has opined that the samples sent in all the parcels were narcotics i,e, charas and opium respectively.
7. The learned trial Judge, at the conclusion of trial, held both of them guilty and upon conviction both have been awarded sentence of life imprisonment with a fine of rupees five lac (Rs,5,00,000/-) each or in default of payment of fine to suffer further two (02) years S.I., however, benefit of Section 382-B Cr.P.0 was given while the motorcar was confiscated in favour of the State.
8.The pivot of the controversy is as to whether the case of Mst. Farzana, Appellant No, 2, does fall within the ambit of clause (c) of S. 9 of Control of Narcotic Substances Act, 1997 or is otherwise due to the fact that in all 12 packets containing 14 thin slices in each packet were allegedly recovered from her but while taking samples therefrom, a small quantity was taken from one slice of each packet as no sample was taken from the rest of 156 number of slices i,e, 13 of each packet.
9. It has been held by Hon'ble Mr. Justice Ejaz Afzal Khan, J, that the prosecution has failed to prove that the bulk of quantity was charas/narcotics through expert opinion; therefore, the lady-accused is entitled to the benefit of doubt with regard to the quantum of sentence and reduced her sentence to the one already undergone.
10. To the contrary, Hon'ble Mr. Justice Jehanzaib Rahim, while referring to different case law, is of the view that because the lady-accused has not taken this plea but has pleaded innocence, thus, she has not discharged the burden, the law has placed on her and the sample taken from a single slice of each packet and because the case property was exhibited in the Court, therefore, in all probabilities the entire bulk of narcotics shall be construed as narcotics/chars and that she could not be extended any benefit in the quantum of sentence.
11.With regard to the reduction of sentence of appellant, Shahid-ur-Rehman, the husband of lady- accused, from life imprisonment to sentence of seven (07) years R.I. with a fine of rupees one lac (Rs, 1,00,000/-) both the Hon'ble Judges are in agreement and for valid reasons, therefore, that aspect of the matter need not to be discussed.
12.In the dissenting note of Hon'ble Mr. Justice Jehanzaib Rahim, J, reliance has been placed on the view held by Hon'ble Apex Court in the case of "Muhammad Hashim Vs. The State" (PLD 2004 SC 856), however, in my humble view his lordship could not comprehend the correct view of the Apex Court because in cited case, in similar circumstances, the following view was held:-- "S. 9(c). Record and recovery memo., showed that 4 grams of chars was taken as sample out of total of 288 rods and nothing was available on record to show whether the sample for examination by the Chemical Examiner was taken out from each rod to ascertain that 288 rods were that of chars or some other commodity, having resemblance with the colour of chars like oil cake etc. Very stringent sentences having been provided under the Control of Narcotic Substances Act, 1997, if offences charged against the accused within any component of. Section 9 were proved, therefore, said Act had to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, were to be followed strictly in the interest of justice, otherwise, in such like cases it would be impossible to hold that total commodity recovered from the possession of accused was chars and presumption in given circumstances of the case was that sample was taken out from only one rod and so far as the remaining rods were concerned, in the absence of any sample taken out from them, it would not be possible to hold that these were the rods of chars or otherwise--held that for such reason, the case of the prosecution had become doubtful, as such, sentence awarded to the accused by the trial Court and maintained by the High Court was not sustainable."
13.Answering the same question of law almost in similar circumstances, this Court in the case of "Muhammad Uzair Siddiqui Vs. The State" (PLD 2005 Peshawar 81) held the following view: "S. 9.(a)(b)(c)--Appreciation of evidence--Severity of punishment--All three clauses i,e, (a)(b)(c) of S. 9 of Control of Narcotic Substances Act, 1997 had provided different quantum of sentences of imprisonment including death sentence depending entirely and exclusively on quantity of narcotics involved--Most severe punishment/sentence was provided in third proviso where quantity of narcotics exceeded 10 KGs, punishment would be death and/or shall not be less than imprisonment for life--Severity of punishment had direct nexus with quantity of narcotics recovered from accused--Duty of prosecution was two fold, firstly it was to establish the guilt of accused for having in his possession or under his control contraband narcotics and secondly to establish through evidence the particular quantity said to have been recovered--In the second case, if no evidence was adduced to prove the exact quantity recovered from the accused, Court ordinarily would be unable to award sentence prescribed by clause (c) of S. 9 of Control of Narcotic Substances Act, 1997 or for that matter one under third proviso to clause (c) of the said Section."
14. Under the provisions of Section 34 of the Control of Narcotic Substances Act, 1997, the Federal and Provincial Governments have to setup Narcotics Testing Laboratories or Narcotics Testing Research Laboratories/Institutes while under Section-35 the Federal or Provincial Governments have to appoint an expert with the prescribed qualification as analyst for testing narcotics substances and to give an opinion. These appointments are to be made through an official notification which shall be published in the Official Gazette. Similarly, under Section 36 a proper procedure has been laid down for the Government Analyst how to subject to test drugs or narcotics substances and the manner of forwarding/giving his opinion and such opinion shall be admissible as evidence of the facts, stated therein without calling for evidence the expert and the opinion in the absence of evidence in rebuttal shall be conclusive.
14-A. Through various notifications, issued in the official gazettes from time to time, not only such testing laboratories but different analysts have been duly notified, who alone are competent to give opinion with regard to narcotics substance and no other person even of a high caliber has any authority to declare or opine that any substance recovered is a narcotics substance and nothing else.
15. If we proceed on assumption and presumption, such practice would be in disregard of the cardinal principle of justice and would be violative of the statutory provisions of law because neither the Court nor the prosecutor or the arresting agency has any power or authority to give such opinion nor such opinion, if so given, would carry any legal worth.
It is iron clad principle of justice that an accused is the most blessed child of law. He/she is not required to take a particular defense plea provided, his/her plea is either established through the evidence led by the prosecution or is gleaned out through the peepholes of the prosecution case.
Accused is not at all under a legal burden to make a high pitched cry like a baby about his defense plea.
It is also cardinal principle of criminal justice that no one should be construed into a crime except on the basis of a legal proof.
16.In view of what has been discussed above, I am of the firm view, that what has been held by Hon'ble Mr. Justice Ejaz Afzal Khan, J, on the law point is the correct view to which no exception could be taken. Similarly, the reduced sentences proposed by his lordship with regard to both the accused- appellants are approved and maintained and appeals of both the appellants are partially allowed to the above extent.