IMAM BUX BALOCH, J.---Through this Criminal Appeal the appellant has assailed impugned judgment dated 27-4-2010 passed by learned Special Judge-II, CNS, Karachi in Special Case No,48 of 2008 (State v. Nasrullah) arising out of Crime No,7 of 2008, under sections 6/9(c) C.N.S. Act, 1997, whereby the appellant has been convicted and sentenced to undergo imprisonment for life and fine of Rs,500,000 and in default of payment of fine the appellant to further undergo S.I. for six months. The appellant was given benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the prosecution case are that on 25-2-2008 at 7 p.m. the complainant Excise Inspector Harjimal along with E.T.O Agha Amanullah, E.C. Sarfaraz Ahmed, E.C. Masood Hussain, E.C.
Muhammad Hanif, E.C. Abdul Malik, E.C. Aurangzaid and B.C. Rasheed Jatoi on the basis of spy information apprehended the above named appellant from Quetta Bus Stop, Shahzob Hotel, Old Sabzi Mandi, Karachi, in connection of possessing of Charas concealed in a black colour bag holding in is hand and on opening and search of the said bag the complainant in presence of P.Ws. being subordinates to him recovered 15 bundles of Charas comprising of rods weighing 1 KG each bundle totalling to 15 KGs of charas. The complainant separated 1 rod from each bundle for chemical examination and remaining charas was also sealed on the spot. The complainant after having prepared the Memo. of arrest and recovery at the spot brought the appellant and alleged recovered charas to police station where case was registered.
3. Usual investigation followed and in due course the case was challaned and formal charge was framed by the trial Court against the appellant to which he pleaded not guilty and claimed to be tried.
4. In support of its case, the prosecution examined P.W.1 EC Sarfaraz Ahmed being Mushir of recovery and arrest at Exh.5 who produced Mashirnama of recovery and arrest at Exh.5/A, P.W.2 complainant and Investigating Officer of the case Excise Inspector Harjimal at Exh.6 who produced F.I.R. as Exh.6/A, letter by which 15 rods of charas were sent for chemical examination as Exh.6/B, letter by which whole case property was sent to chemical examiner as Exh.6/C, Chemical Examiner's report at Exh.6/D and 6/E, photocopy of Roznamcha Entry as Exh.6/F, Charge Sheet as Exha.6/G.
5. The statement of accused under section 342, Cr.P.C. was recorded vide Exh.8 in which he had taken the plea that he is innocent, nothing was recovered from him and falsely he was implicated by the complainant with mala fide intention and prayed for justice.
6. After hearing learned counsel for the parties, the trial Court recorded the above judgment whereby the appellant was convicted and sentenced as mentioned above.
7. We have heard learned counsel for the parties and perused the material brought on record.
8. At the very outset the learned counsel for the appellant contended that 150 grams charas was sent from 15 bundles weighing 15 kilograms. The case of appellant falls under section 9(b) of the C.N.S. Act, 1997 and not under section 9(c) of the said Act, as held by learned trial Court. It is further contended that there are two chemical reports. Firstly on 25-2-2008, 150 grams of charas was sent for chemical examination and then remaining contraband (charas) was sent for chemical examination. The same is in positive. It is contended that with mala fide intentions and ulterior motives a second chemical report was obtained by sending the whole property which was received to the chemical examiner on 14-3-2008. It is contended that the second chemical report is managed one and having no value in the eyes of law as without approval of the trial Court the same was sent on the directions of District Public Prosecutor. Learned counsel has relied upon the case law viz. Gulshan Ara v. The State (2010 SCM R 1162), The State v. Amjad Ali (PLD 2007 Supreme Court 85), Asmatullah and 2 others v. The State (2010 PCr.LJ 1560), Nadeem Dehto v. The State (2010 YLR 1770) and summed up his arguments that the appellant is liable for punishment provided under section 9(b) of the C.N.S. Act.
9. On the other hand Mr. Zafar Ahmed Khan, A.P.-G. contended that it is not necessary for the prosecution to send all the contraband material for chemical examination but in the instant case the prosecution has sent whole contraband to chemical examination and both the reports are in positive. He has relied upon the case of Kashif Amir v. The State (PLD 2010 Supreme Court 1052) and Muhammad Khan v. The State (2008 SCM R 1616). He has vehemently opposed for reduction of sentence and contended that the trial Court has rightly convicted the appellant in the circumstances of the instant case.
10.We have considered the submissions advanced at the bar by both the parties and have gone through the case law relied upon by both the learned counsel for the parties. The main contention of the learned counsel for he appellant is that at the first instance only 150 grams of charas was sent for chemical examination and the chemical report is in the positive. The appellant is liable for conviction under section 9(b) of CNS Act, which provides punishment for 7 years. It is further contended that the second chemical report could not be relied upon, on the ground that without the permission of the trial Court the same was sent which is not sustainable under the law. In case of Gulshan Ara supra, the honourable Supreme Court has observed as under:-- "First the evidence of raid and recovery was furnished by P.W.3 Ijaz Ahmed, constable and P.W.5 Safwat Ullah, S.-I. Both are police officials and according to them they on a source report straight went to the house of the appellant and after her arrest they searched the kitchen and from secret boxes recovered the narcotic i,e, 17 packets of one kilogram each and only six grams was sent for chemical analysis. There is nothing on record to indicate that a sample was taken from each packet "In the instant case as well admittedly no sample was taken from any other packet .except one and the said packet according to the prosecution weighed only one kilogram. That being so the case of the appellant would fall in section 9(b) of Control of Narcotic Substances Act, 1997 consequently, this ,appeal is partly allowed and by converting appellant's conviction from section 9(c) of Control of Narcotic Substances Act, 1997 to section 9(b) of the said Act her sentence is reduced including that of fine to the one that she has already undergone. She shall be released forthwith unless detained in any other case."
11. In the case of Amjad Ali supra, honourable Supreme Court has observed as under:-- "(4) Instances are not unknown and are in fact increasing by the day, where unscrupulous litigants manoeuvre replacement of the substances and articles deposited in the Malkhana; then make prayer for the re-examination of the substance and the result obviously is that the narcotic substance which had already been examined/tested as narcotic substance was found to be something else. Such an immoral practice was gaining momentum as a result whereof the criminals were securing their acquittal through dishonest means. It was about time the learned Courts came alive to the said clandestine modus operandi adopted to screen offenders and made sure that once a substance had been tested then extraordinary reasons must exist and must be given before directing fresh examination of such a substance.
(5) Since no such reason had been disclosed by the learned High Court through the impugned order, therefore, the said order cannot be sustained. Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned order dated 24-1-2006 passed in Criminal Appeal No,396 of 2005 is set aside. No orders as to costs."
12. In the case of Asmatulah and 2 others the Division Bench of this Court has observed as under, in which one of us (Imam Bux Baloch, J) was member of the Bench:-- "In view of the above discussion, we find that there are mitigating circumstances in the case of prosecution which suggests that the appellants are entitled to be Awarded lesser punishment therefore, the sentence and conviction awarded to the appellants by the trial Court under impugned judgment, is altered from life imprisonment to R.I. for 14 years and the sentence of fine is also altered from Rs,500,000 each to Rs,100,000 each and in case of default of payment of fine, the appellants shall suffer R.I. for six months more and the benefit of section 382-B, Cr.P.C. is also extended to the appellants."
13. In the case of Nadeem Dehto supra, the Division Bench of this Court has observed as under:-- "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 criteria 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."
14.However on the other hand we have also gone through the judgment cited by learned A.P.-G. in which 193 bags of charas and 5 bags of opium weighing 1 kilogram each were recovered.
However learned counsel for the appellant took plea that out of huge quantity of 193 KGs charas and 5 KGs opium were not drawn from total consignment but only 100 grams charas was sent for chemical examination. No sample was drawn from the remaining narcotic i,e, charas and on the basis of this it has been held that the prosecution is bound to draw sample from total recovered narcotics, is not applicable in the instant case. In this case in the first instance 150 grains of charas was sent for chemical examination. The report is in positive and in the second phase remaining contraband (charas) was sent for chemical examination which was received by the chemical examiner on 14-3-2008 which report is also in positive. In the case of Kashif Amir supra, the honourable Supreme Court has observed as under:-- "A perusal of all these documents, particularly inventory indicates that samples were drawn from all the packets of the recovered Charas and Opium, therefore, the presumption of the learned counsel that samples were not drawn from the total recovered quantity of the Charas is not tenable. The judgment which has been relied upon" by him in establishing that except from one kilogram charas no sample was drawn from the remaining recovered narcotics i,e, charas and on the basis of this it was held that prosecution is bound to draw samples from the total recovered narcotics is not applicable in the instant case. As far as sample drawn out of recovered Opium is concerned, no objection has been raised. In addition to it, in the case of Ali Muhammad (ibid) it has been held that the question with regard to non-collection of the samples from the whole lot of recovered narcotics would arise in those matters, where a challenge has been made that recovered item is not narcotics. Same principle is not attracted herein, because the recovery of the Charas and Opium was not challenged by the petitioner before any Court. Thus, case of the petitioner that he was innocent as he had no knowledge about the transportation of the narcotics (Charas and Opium) in the vehicle by concealing same in the especially designed cavities does not seem to be confidence inspiring in view of the case laws referred to hereinabove. As it has already been observed that primarily it is the duty of the prosecution to prima facie establish the guilt of the accused but once it has succeeded for doing so then in terms of section 29 of C.N.S.A., the presumption would be that unless and until contrary is proved, the accused has committed the offence. In the instant case the prosecution had discharged its initial burden while proving that narcotics were recovered from the petitioner, as such, the burden had shifted to the petitioner to prove his innocence, which he failed to do."
15. The case of Gulshan Ara referred above by the learned counsel for the appellant though has not been ruled, out by the honourable Supreme Court but subsequently Full Bench of honourable Supreme Court has taken a different view in the case of Kashif Amir supra, which is authored by his lordship honourable Chief Justice of Pakistan, decided on 30th June, 2010 whereas the case of Gulshan Ara was decided on 7th October, 2009. We are bound to follow the recent view of the honourable Supreme Court.
16.However, when confronted with the above observation of the Honourable Supreme Court in Kashif Amir's case the learned counsel for the appellant was unable to show that appellant has ever challenged before any Court of law that recovered article is not narcotics. Even in the instant appeal the appellant has not challenged that the recovered item was not narcotics.
17. For the above reasons while respectfully relying upon the judgment of the honourable Supreme Court in the case of Kashif Amir v. The State, we see no reason to interfere with the impugned judgment passed by the learned trial Court, therefore we dismiss the instant appeal.
(Sd.)
Imam Bux Baloch, J GULZAR AHMED, J.---I have read the judgment which is written by my learned brother Imam Bux Baloch, J. I agree with the ultimate decision in the appeal but would like to add my own note regarding the controversy in issue.
The facts of the matter have elaborately been stated in the judgment of my learned brother and it is not necessary for me to repeat the same.
The precise point raised by counsel for the appellant in this appeal was with regard to sending of second sample of recovered charas for chemical examination and it was contended that the second sample cannot be made basis of conviction and sentence of the appellant.
The case is of recovery of 15 Kgs charas comprising of 15 packet total 15 rods of 150 grams as sample were drawn from the recovered charas which were sealed and remaining charas was also sealed in bag from which it was secured. The sample of 150 grams was sent for chemical examination vide letter dated 27-2-2008 in respect of which report dated 17-3-2008 was received which was positive.
Subsequently, remaining property comprising of 14.850 Kg. of charas was also sent to chemical examiner in respect of which report dated 4-4-2008 was received in positive.
The learned Additional Prosecutor-General has contended that remaining recovered charas was sent by the I.O. to Chemical Examiner on the directions of DDA CNS-II and for this purpose he referred to letter Exh.6/C.
It seems that earlier 150 grams of sample was sent through letter dated 25-2-2008 while the remaining quantity of charas was sent for chemical examination through undated letter which was received on 14-3-2008 by the Chemical Examiner. It seems that while the excise inspector was submitting final challan on the direction dated 13-3-2008 of DDA CNS-II the remaining recovered charas was also sent to the Chemical Examiner and such fact is supported by Exh.6C so also the report of Chemical Examiner Exh.6D. The counsel for the appellant was unable to point out any legal defect in sending of remaining parcel of recovered charas for chemical examination and I am also unable to discover any legal infirmity in the same; more so, when the recovered charas has been produced in Court and it was not disputed to be the charas rather in cross-examination of P.W. Harjimal the suggestion was made to him that packets of charas were not secured from accused Nasarullah and it has been foisted on accused Nasarullah. This very suggestion is sufficient to come to conclusion that there was no challenge by the appellant that the property produced in Court was not the charas.
In view of the above narration, it is obvious that the appellant cannot get benefit of reducing the sentence of 150 grams of charas of charas which was drawn as first sample rather whole of charas will be the base for conviction and sentencing of the appellant.
As to whether Hon'ble Supreme Court has taken different view in the case of Kashif Amir v. State (PLD 2010 SC 1052) from that of Gulshan Ara v. The State (2010 SCM R 1162), the same required deeper examination and I do not E find any reason to go into this question in the present case.