' YAHYA AFRIDI, J.---This Criminal Appeal filed by Saeed Ahmad (Cr. A. No,674 of 2010) and the Murder Reference filed by the Stale (M. Ref. No,24 of 2010) arise out of the conviction and sentence awarded by the Judge, Special Court/Additional Sessions Judge-1V, Peshawar ("trial Court") vide judgment dated 15-7-2010.
2. The case of the prosecution arises from F.I.R. No,33 dated 11-3-2010 for crimes committed under various provisions of the Customs Act, 1969 and sections 6, 7, 8 and 9(c) of Control of Narcotic Substances Act, 1997 ("CNSA") registered. In Police Station Investigation and Prosecution Branch, Custom House, Peshawar ("F.I.R.") .
3. The present appellant was charged by the trial Court on 29-4-2010 in the following terms; "That you accused named with active connivance of your absconding co-accused namely Khair Ullah alias Abdullah, Samiullah and Jabir on 11-3-2010, at 1230 hours near toll plaza motorway, falling within the criminal jurisdiction of Police Station Customs Investigation and Prosecution Branch, Peshawar while driving Motorcar No, GTC-7014, Honda Civic were chased and intercepted the Customs Authorities and recovered 250 Kilogram charas and 10.5 kilogram of opium from the secret cavities of your motorcar and you thereby committed an offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 and within my cognizance."
4. The appellant denied the charge and claimed a fair trial. Accordingly, the prosecution produced four witnesses, including Ajmal Khan, Inspector, the Seizing Officer (P.W.2) and Muhammad Ayaz, the Investigating Officer (P.W.4). Thereafter, the present appellant recorded his statement under section 342 of Criminal Procedure Code, 1898 ("Cr.P.C.") and denied the charges levelled against him. Finally, the trial Court after considering the evidence produced by the parties, convicted the appellant and sentenced him to death and also imposed a fine of Rs, 100,000 or in default of payment thereof, to undergo six months' imprisonment vide impugned judgment dated 15-7-2010.
Hence, the present appeal.
5. The prosecution's case as set up in the F.I.R. Against the present appellant is that Ajmal Khan, Inspector, Custom Mobile Squad-II, Peshawar had received prior information regarding narcotics to be transported from tribal area to Punjab in a vehicle bearing Registration No,GTC-7014.
Accordingly, a raiding party was constituted and "Nakabandi" was imposed at Toll Plaza of Motorway Peshawar Interchange on 11-3-2011. On the same day at about 1230 hours, Honda Civic Motorcar bearing Registration number GTC-7014 ("vehicle"), when signaled to stop, instead accelerated therefrom. This led to a chase of the vehicle by the raiding party and finally it was stopped. The vehicle was being driven by a person, who later disclosed his name to be Saeed Ahmad son of Mir Zaman, the present appellant. The vehicle along with its sole occupant, the present appellant, were brought to the Custom House, Peshawar for search. The said search led to recovery of 207 packets containing a total of 250 kilograms ("kg") of `charas' and 9 packets containing 'opium' weighing 10.5 kgs. The seizing officer took three samples weighing 10 grams each from the recovered `charas' and the 'opium' respectively. The said six samples were sent for chemical examination, while the remaining recovered 'charas' and 'opium' were kept separately in two bags.
6. The FSL report confirmed that the samples sent for chemical examination were 'charas' and 'opium'.
7. The main thrust of the learned counsel for the appellant was that the prosecution had not proved that the entire amount recovered from the vehicle was contrabands; that the manner and mode of keeping the recovered contrabands, without any seals thereon, exposed the same to be doubted as to its security and identity; that there were contradictions between the testimony of the prosecution witnesses, which exposed the very case of the prosecution to very serious doubts.
8. In rebuttal, the learned D.A.-G., vehemently contradicted the assertions made by the learned counsel for the appellant and submitted that it was a clear-cut case duly supported by direct evidence of recovery of contrabands from the vehicle driven by the appellant, who was the sole occupant thereof; that the manner and mode of obtaining samples of the contrabands were in accordance with the Customs General Order No,12 of 2002; and that technicalities regarding recoveries should not defeat the clear case made by the prosecution. Reliance was placed on Ghulam Qadir's case (PLD 2006 SC 61) and Ismail's case (2010 SCM R 27).
9. The valuable arguments of the learned counsel for the parties have been duly noted and the available record thoroughly considered.
10. This Court does not agree with the contention of the learned counsel for the appellant that there are crucial contradictions and inconsistencies in the statements of the prosecution witnesses leading to serious doubt the case of the prosecution. The statements of the prosecution witnesses, if taken in totality, are in consonance on material particulars. Thus the contention of the learned counsel for the appellant is repelled. Moreso, when there is no glaring contradiction highlighted in the prosecution evidence creating any doubt in the recovery of the contrabands and the sole presence of the appellant the vehicle from which the recoveries have been effected.
11. Moving on to next submission of the learned counsel for the appellant that the contrabands recovered were kept in a parcel not sealed and thus exposed the same to tampering. Not only is the evidence contrary to the said assertion, but most importantly, the samples of the recovered contrabands were received by the Forensic Science Laboratory ("FSL"), Peshawar on 12-3-2010. This clearly demonstrated that the samples were sent for chemical examination within 24 hours of the seizure made by the raiding raiding authorities. Hence, there can hardly be any question of tampering with the samples.
12. This Court found great substance in the ground of challenge raised by the learned counsel for the appellant that the samples taken from the recovered contrabands were not from each and every packet and thus the prosecution did not prove the recovery of the total 250 kgs of `charas' and 10-1/2 kgs of 'opium'.
' In this regard, we note that the F.I.R. Is silent regarding this aspect of the recoveries, as the vehicle and the appellant were stated to be taken to Custom House, Peshawar for further search and investigation. Hence, there was no search and recovery made by the raiding party at the place of apprehending the appellant and the vehicle.
' Moving on to the Recovery Memo of the contrabands (Ex.P.W.2/1), it records as follows;
(1) Charas F/O = 207 packets weighing 250 Kgs (gross).
(2) Opium F/O == 9 packets weighing 10-1/2 kgs. (gross).
(3) Honda Civic Motorcar No, GTC 7014........ "
' The Seizing Officer, Ajmal Khan (P.W.2) explaining the said recovery made by him stated that; "I prepared samples for FSL from charas and also from opium 3/3 in number each weighing 10/10 grams and prepared sample memo which is Exh. P. W.2/3.... I collected samples from every packet of the contrabands. I have sent 10 grams of charas as samples and 10 grains from opium to FSL.
Only the quantity which was sent to FSL was collected from entire packet of charas and opium...."
' The other recovery witness Nisar Ali Driver Custom House, Peshawar (P.W.3), also narrated; "The car in question was searched in my presence where from narcotics was recovered from it.
The same was weighed and charas came out to be 25 Kgs in 207 packets while opium 10-1/2 Kgs in packets gross. The I.O. Prepared recovery memo Exh.P.W.2/1, which correctly bears my signature as its marginal witness....A little quantity was taken from the each packet and-the total was round about 30 grams. It is correct that the facts regarding separation of samples from all the packets and search of the accused was made in my presence are not in my statement recorded under section 161, Cr.P.C. "(emphasis provided)
What transpires from the aforementioned statements is that the samples of the recovered contrabands obtained and sent for chemical examination were not taken separately from each of the 207 packets of the 'charas' and 9 packets of 'opium' . However, Nisar Ali (P.W.3) improved upon his earlier statement and testified that the samples were obtained from each and every packet of the recovered contrabands. This improvement by the said witness is not only contradicting the contents of the F.I.R., recovery memo of the contrabands, his statement under section 101 during the investigation and the statement of Ajmal Khan (P.W.2). Furthermore, this assertion of Nasir Ali (P.W.3) is also belied by the fact that it is but impossible to take samples totalling 30 grams of `charas' from all the recovered 207 packets. The statement of Nasir Ali would have us to believe that 0.145 grams of `charas' was taken from each of the 207 packets recovered from the vehicle.
This bear calculation would demonstrate the absurdity of the said statement.
13. This serious lapse on the part of the prosecution was also justified by the learned D.A.-G.
Representing the State. He contended that Customs General Order No,12 of 2002 dated 15-6-2002 ("CGO") in Para 35 therein, specified that the mode and manner of taking samples of seized heroin and other narcotics provided for three samples to be taken from the entire recovered contrabands.
This stance taken by the learned D.A.-G. Seeking support of the CGO does not hold any legal ground for the following reasons; Firstly, as the entire procedure provided in Para 35 of CGO was not followed by the seizing officials.
Secondly, these are regulations or at best departmental instructions, which regulate the manner in which the search, seizure and storage of seized contraband had to be carried out. Thus the proof required under the law cannot be substituted by such instructions. What is important and crucial is that for special penal provisions having capital punishment the standard of proof has to be strict and beyond any doubt, E whatsoever. The prosecution cannot seek shelter of any internal instructions and that too of only a part thereof, ignoring the other particulars of the mode and manner of recovery stated therein.
14. In regard to the judgments of the apex Court cited by the learned D.A.-G., we are in complete accord with the principle laid down therein. However, the issue at hand is distinguishable from the facts of the said cases.
' In Ghulam Haider' case (supra), the samples were taken separately from each and every 'sack', which contained the contrabands. This is surely not the facts of the present case. Moreover, the only contradiction or advantage, which was taken by the accused therein was that there were contradictions in the statements regarding the place of recovery of the contrabands, which too is not the case in hand. Only to that extent, the apex Court clearly laid down that once the prosecution was able to prove the recovered contraband to be narcotics, as per provisions of CNSA, the contradiction regarding the place of recovery could not be taken advantage of by the accused.
' Similarly, in Ismail's case (supra), the issue was not whether the recovering officer had taken samples from each and every packet recovered. In fact, the findings recorded in the said case clearly provided that the prosecution had proved the recovery of the `charas' and 'opium' from the conscious possession of the convict. In fact, in the separate note of his lordship Jawwad S. Khawaja, J. This issue has in fact been very eloquently clarified in the following manner; "This is particularly so in the light of the testimony of the P. Ws. Including Mushtaq Hussain P. W.4 through which it has been proved that samples were drawn from each packet of charas and opium recovered from hidden cavities in the doors of the vehicle, which was used by the petitioner for transporting the narcotics substance. The petitioner has not raised any grievance through application either before the learned trial Court or the appellate Court nor indeed has it been urged before the petitioner had sought permission to lead evidence to the effect that samples were not drawn from each packet and that' the contents of such packet did not contain charas or opium respectively. In the absence of any such grievance having been agitated or any attempt having been made to adduce evidence as aforesaid, it is not possible to rely on simple observation made by the learned trial Court while recording the testimony of P.W. Muhammad Altaf."
In view of the 'ratio decideni' in the cases cited hereinabove, it is now settled that unless the samples are taken from the respective recovered packets of contraband and confirmed through a positive FSL report, the said recovered contrabands contained in the packet shall not be proved 'possession' required under CNSA. This was surely not the case in hand. The prosecution has clearly not proved that they obtained samples from 207 recovered packets of `charas' and a packet of 'opium'.
15. This Court cannot shut its eyes to the clear and trustworthy evidence produced by the prosecution to prove that the appellant was the only occupant of the vehicle from which narcotics had been recovered. It was also proved to the satisfaction of this Court that `charas' and 'opium' were recovered from the vehicle and that the samples thereof were legally obtained and sent for chemical examination promptly without any delay. Furthermore, it is also proved through the report of the FSL that the said recovered samples were charas' and 'opium'.
16. The only question, which agitates our mind is that the quantity to meet the threshold of section 9(c) of CNSA has not been proved by G the prosecution. This doubt created in our mind, regarding the quantity of narcotics recovered from the 'conscious possession' of the appellant, due to lack of proof, should go in favour of the appellant.
17. Accordingly, for the reasons stated hereinabove, we partially accept the appeal of Saeed Ahmad by maintaining his conviction but for offence punishable under section 9(a) and not 9(c) of CNSA and he is sentenced to six years' rigorous imprisonment, while the fine of Rs .100,000 is kept intact. The benefit of section 382-B of Cr.P.C. Would also be provided to the present appellant.
18. For what has been discussed hereinabove, the Murder Reference is answered in the negative and not confirmed.
19. These are the detailed reasons for our short dated 5-7-2011.