' NAEEM AKHTAR AFGHAN, J.---This appeal has been filed by the appellants against the judgement dated 29-3-2008 passed by Court of learned Special Judge Control of Narcotic Substances, Lasbella at Hub in C.N.S. Case No,6 of 2007 in F.I.R. No,38 of 2007, whereby the appellants have been awarded conviction under section 9-C of C.N.S. Act, 1997 (hereinafter referred as Act of 1997) and sentenced for life imprisonment each with fine of Rs,100,000 (One Hundred Thousand each) and in default of payment of fine to undergo further six months' S.I. The Mazda Truck having Registration No,TKJ-924 has also been ordered to be confiscated in favour of the State along with the recovered contraband.
2. Relevant facts as reflected in F.I.R. In brief are that on 3-8-2007 the informer informed that some smugglers are bringing narcotics from Ormara to Karachi via Coastal Highway. Upon this information the Commandant One Battalion (Quaid) Pakistan Coast Guards Uthal issued order for checking the vehicles on the roads. Naib Sobedar Muhammad Arif further conveyed the directions to all the concerned staff. It has been reported that on 4-8-2007 one Mazda Truck was seen coming from Ormara bearing Registration No,TKJ-924, which was signaled to stop. Since at the relevant time no civilian person was ready to become a recovery witness, as such, Naib Sobedar Muhammad Arif made Naik Muhammad Riaz and Lance Naik Shakil. Ahmed the recovery witnesses. The truck was searched in the presence of witnesses and from the secret cavities prepared in the petrol tank of Mazda Truck 500 packets of Charas were recovered, which was weighing 600 Kgs. It has further mentioned that the Charas was in the shape of rods and each packet was weighing 1.2 Kgs. It has further been mentioned in the F.I.R. That from the recovered Charas, 12 parcels weighing 10 grams each were prepared as sample for analysis and same were sent to Sindh Chemical Laboratory. It has further been mentioned that inventory and Mashir Nama were also prepared at the spot and the driver of truck namely Abdul Wahid son of Azim Khan (appellant No,1) and the cleaner Irshad son of Muhammad (appellant No,2) were arrested and recovered Charas along with Mazda Truck bearing Registration No,TKJ-924 was taken into possession and F.I.R. Was registered at the Battalion Headquarter. After receiving report of Chemical Examination and completion of investigation, the appellants were challaned and were put on trial before the Special Judge C.N.S. Lasbella at Hub.
3. At the trial the charge was read over to the appellants on 6-8-2007, which was denied, Naib Sobedar Muhammad Arif appeared as P.W.1, who produced notice under section 23 of the C.N.S. Act, 1997 as Exh.P/1-A, Mashir Nama as Exh.P/1-B, Inventory of seized goods as Exh.P/1-C, Notice under section 22 of the C.N.S. Act 1997 as Ex.P/ I -D Exh.P/1-E and F.I.R. As Exh.P/1-F. Shakil Ahmed Naik Coast Guard, appeared as P.W.2 and produced the recovered contraband articles with bags and packets as Art.P-1, P/7 and P/8 and also produced the vehicle Mazda Truck Ari.P/9. The witness identified his signatures on Mashir . Nama Exh.P/1-B and Inventory Exh.P/1-C. Naib Sobedar Salim Akhtar appeared as P.W.3., who is Investigating Officer of the case and produced interim Challan as Exh.P/3-A, Chemical Examiner Report as Exh.P/3-B and Supplementary Challan as Exh.P/3-C.
4. After completion of prosecution evidence the appellants were examined under section 342 Cr.P.C. Appellants also recorded their statements on oath under section 340(2), Cr.P.C. And in defence produced DW-1 Tariq son of Haji Khaliq, DW-2 Abdullah son of Haji Chakkar and DW-3 Atta Ullah son of Saeed Ullah.
5. The learned counsel for the appellant Mr. Qahir Shah Advocate at the very outset argued that the alleged contraband is in the shape of -rods and the samples for analysis have not been taken from each rod. He further argued that the prosecution has not been able to show as to from how many rods the samples were drawn for chemical examination. He further agitated that the 12 pieces taken for analysis in 12 parcels of 10 grams each are also in the shape of pieces of rods as per report of chemical examination; but it is also not available on record as to what was the weight of rods from which 10 grains of samples were drawn. He argued that these circumstances have created a serious doubt in the case of 'the prosecution and while extending the benefit of doubt, conviction awarded to the appellants be set aside. In this regard the learned counsel has placed reliance on the judgment of Muhammad Hashim v. The State, reported in PLD 2004 SC 856, Tariq Pervaiz v. The State, reported in 1995 SCM R 1345. Mr. Rauf Atta, learned Standing Counsel appearing on behalf of respondent/State when confronted with the above situation, failed to controvert the same.
6. With the assistance of the counsel for the parties the record was perused. Mashir Nama Exh.P/1-B reveals that the recovered contraband weighing 600 Kgs was in the shape of rods in 500, packets, each packet weighing L2. Kgs. It further reflects that from the recovered contraband A 12 parcels weighing 10 grams each were prepared as samples for chemical examination, but the Mashir Nama is silent about the fact as to from how many rods 12 samples were drawn: The statement of P.W.1 is silent in this regard. P.W.1 has also failed to show as to from how many packets or from how many rods the 12 parcels weighing 10 gram each were prepared for chemical examination. In cross-examination P.W.1 further admitted that all the packets were not opened, (meaning thereby that the samples were not drawn from each packet and each rod). Similarly P.W.2 is also silent in this regard and has stated that from the recovered contraband 12 samples were taken weighing 10 grams each. P.W.2 in cross-examination admitted that in each packet there are many rods and he cannot say as to each packet contains how many rods. P.W.2 also failed to show that samples were drawn for analysis from each rod.
7. It has been established on record that the recovered contraband was in the shape of rods and samples have not been drawn for chemical examination from each rod to ascertain that same was Charas or some other commodity and there is nothing available on record to even show the weight of those rods from which 12 samples of 10 grams each were taken for chemical examination.
The provisions of Act of 1997 have to be constructed strictly to furnish the proof like the report of the Expel with regard to the recovered contraband and in the instant case admittedly the samples have not been drawn from each rod of the contraband and in such circumstances for the safe administration of justice it would be presumed that 12 samples weighing 10 grams each total (120 grams) were only drawn from 12 rods (weight whereof is not available on record) and for remaining rods in absence of any sample taken out from them it would not be possible to hold that the same were rods of Charas or otherwise. Hence, this circumstance in our view is creating a reasonable doubt, which cannot be ignored in dispensing justice. The rule of benefit of doubt described as a golden rule' is essentially a rule of prudence and a circumstance creating reasonable doubt in a prudent mind cannot be ignored and benefit of same is to be extended to the accused/convicts. In a similar case the Hon'ble Apex Court in the reported judgment PLD 2004 SC 856 Muhammad Hashim The State, held as follows:-- "It emerges therefrom that vide recovery memo Exh.P/1-A, 4 grams of Charas was taken out from total 288 rods. Nothing is available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of Charas or some other commodity, having resemblance with the colour of Charas like Oil Cake (Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offence charged against the accused within any component of section 9 is proved. Therefore, for such reason, Act, 1997 has 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, etc. Are 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 his possession was Charas. However, in given facts and circumstances of the case, it would be presumed that sample was taken out from only one rod. As far as remaining rods are concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of Charas or otherwise. Therefore, taking into consideration this aspect to the case, we are of the opinion that for such reason, the case of the prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable."
8. In view of what has been discussed above, we are of the considered opinion that prosecution has established its case against the appellants to the extent of recovery of 120 grams charas, so we alter the charge from 9-(c) of C.N.S., Act 1997 to 9(b) of C.N.S., Act, 1997. The- appellants are convicted for the period already undergone with fine of Rs,10,000 each in case of default of payment of fine the appellants shall further suffer two months S.I. Each.
' With above modification in the quantum of sentence, appeal is dismissed on merits.