' MUHAMMAD ANWAR KHAN KASI, J.---This criminal appeal is directed against the Judgment dated 28-9-2007, passed by learned ASJ/Judge Special Court CNS Islamabad, whereby the appellant, Azhar All Khan son of Mehboob Ali Khan, was convicted under section 9(c), C.N.S. Act, 1997 and sentenced to undergo Life Imprisonment, with fine of Its. 50,000 and in default, to undergo further six months' SI in case F.I.R. No, 60, dated 22-3-2004, under section 9(c) of C.N.S.A., 1997, at Police Station Tarnol (Islamabad). Vide the impugned Judgment, the appellant was extended benefit of section 382-B, Cr.P.C.
2. Facts of the case, contained in complaint Exh.PA, are that on 22-3-2004 at about 2-30 a.m. (night time), staff of Police Station Tarnol, in consequence of a spy information, intercepted Car No,IDN- 9723 being driven by the appellant, and its search resulted in recovery of 160 Kgs of charas in total out of which only 40-grams was separated and made into a sealed parcel for the purpose of chemical analysis. The appellant was also apprehended from the scene of crime. After usual investigation, being found the appellant guilty, report under section 173, Cr.P.C. Was submitted against him before the court of competent jurisdiction where in order to prove its case, the prosecution opted to get examined four witnesses in all besides tendering report of Chemical Examiner Exh.PF.
3. In his statement recorded under section 342, Cr.P.C., the appellant denied the prosecution evidence led against him and has taken the plea that nothing was recovered from him. Bogus samples were prepared and sent to Chemical Examiner by Abdul. Razzaq SI-P.W.4 in collusion with Nadeem Gul P.W.3, who both Were inimical towards him for obtaining a report in favour of prosecution. Report of Chemical Examiner was illegal, ambiguous, meagre, cryptic and in sheer disregard of C.N.S.A. Of 1997, and cannot be used against him. Besides appearing as his own witness under section 340(2), Cr.P.C. As D.W.3, the appellant also got examined Muhammad Asif as D.W.1, Kashif Wali as D.W.2 and Dr. Jamal Ahmad Janjua D.W.4. The learned trial Court after hearing both the sides, convicted and sentenced the appellant as mentioned above which gave rise to filing of instant appeal inter aria on the main ground that prosecution evidence, with regard to collection of samples from the recovered substance is insufficient, the benefit of which must go to the appellant. It has also been contended that the appellant being young offender and having no criminal history is entitled to reduction in sentence, which is heavier. In support of his contentions, learned counsel placed reliance upon case-laws cited as 2000 PCr.LJ 760, 2003 YLR 1901, PLD 2003 Karachi 230, 2008 SCMR 991 and PLD 2004 Peshawar 59.
4. Learned Deputy Attorney-General on the other hand, though repelled the arguments advanced by learned counsel for the 'appellant, yet acceded that the prosecution evidence is absolutely silent to show whether the sample for examination by the Chemical Examiner was taken out from each rod to ascertain that entire substance was charas or some other commodity.
5. We have considered the arguments advanced by both the sides and also gone through the evidence in the light of case-law on the subject.
6. The ground urged by the learned counsel for the appellant that evidence with regard to collection of sample from the entire recovered substance is highly insufficient and cannot be believed is convincing and retains force as the eye-witnesses in their respective statements failed to clarify that sample for chemical analysis was taken each littar/sleeper. It is important to mention that as per complaint Exh. PA total 1393 littars/sleepers were recovered but only 40-grams of charas was separated and made into a sealed parcel for chemical examination. In this respect statement of P.W.4 Abdul Razzaq is very material who stated that he separated sample of 10/10- grams and total 40-grams for chemical analysis, which was made into sealed parcel, stamped MS, and were taken into possession through recovery memo Exh. PB, duly attested by P. Ws. Waqar and Nadeem Gul. It is manifestly clear that sample was not taken from each sleeper. This incongruity cannot be taken carelessly.
7. In such like situation guidance may be solicited from the Judgment of Full Bench of the Hon'bl Apex Court passed Criminal Appeal No,565 of 2009 wherein it has been held that:- "8. For the purposes of clarity and removal of confusion it is declared that where any narcotic substance is allegedly recovered while contained in different packets, wrappers or contains of any kind or in the shape of separate cakes, slabs or any other individual physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotics substance is to be considered against the accused person from which a sample was taken and tested with a positive result.
8. In the case in hand, the prosecution evidence is absolutely silent as to from how many littars sample of 40-grams was taken because the IO/P.W.4 in his statement maintained that he separated sample of 10/10 grams and total 40-grams for chemical analysis was made into sealed parcel stamped MS, and were taken into possession through recovery memo. Exh.PB, duly attested by- P.Ws. Waqar and Nadeem Gul. Presumption in the given circumstances of the present case, was that sample was not taken out from each sleeper, therefore, it would not be possible to hold that the same were the rods of charras or otherwise. The Hon'ble Supreme Court, while taking into consideration such aspect of the case, held that for such reason, the case of the prosecution has become doubtful. Reliance is placed upon case of "Muhammad Hashim v. The State (PLD 2004 Supreme Court 856)".
9. It is also an admitted fact that the appellant is young person retains no criminal history and appears to be a carrier. He has suffered rigors of trial and is behind the bars for the last about seven years, which D means that he had served the major portion of the sentence. These circumstances also warrant reduction in sentence.
10. In view of above, while maintaining conviction under section 9(c) of C.N.S.A., 1997, the sentence of appellant is reduced to one already undergone by him. Benefit of section 382-B would remain intact. The amount of fine i,e,, Rs,50,000 shall also remain intact and in default thereof the appellant will undergo 6 (Six Months) SI.
11. With above modification, the appeal stands dismissed.