1. ' SHAHID ANWAR BAJWA, J.--- F.I.R. No,9 of 2008 was recorded at Excise P.S., Ubauro at 1230 hours for an incident, alleged to have taken place on the same day at 5-00 a.m. Complainant was one Syed Sajjad Hussain Shah, Assistant Excise and Taxation Officer, Camp at Ubauro. Complainant stated that he along with a party of Excise Officers, in a Mobile, was standing on National Highway close to Sindh-Punjab border when one Truck bearing No, C-2303/Banu came. It was stopped and two persons (present two appellants) were found sitting in the Truck. They got down from the Truck.
2. Their personal search was conducted, which resulted in recovery of some money and National Identity Cards etc. Then search of Truck was conducted and in secret cavities, 240 packets, each weighing one kg. Of Charas, were found. The recovered Charas was put in six plastic bags and one packet of Charas from each plastic bag was separately sealed and sent for chemical examination.
3. The appellants were tried and, vide Judgment, dated 6-5-2010, were, convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and were ordered to undergo imprisonment for life and to pay fine of Rs,100,000 and in case of default, to undergo further imprisonment of one year. Benefit of section 382-B, Cr.P.C. Was also extended to them. It is judgment dated 6-5-2010 which has been assailed in this Criminal Jail Appeal.
4. ' At the trial, complainant, Sajjad Hussain Shah appeared as witness. He reiterated contents of F.I.R.
5. There were two -other witnesses. P.W. Muhammad Yaseen, who was in the Police party and I.O.
6. Abdul Latif. I.O. Also produced a copy of report of the Chemical Examiner. Thereafter, statements under section 342, Cr.P.C. Were recorded. While appellant No, 1 examined himself on oath, appellant No 2 produced defence witness Nisar Ahmed.
7. ' Learned counsel for the appellants submitted that the prosecution has failed to establish recovery of 240 kg. Of Charas as sample was taken in the form of one packet from each bag and the entire quantity was not sent for chemical examination and, therefore, even if the entire prosecution story is admitted as true, only recovery of six kg. Of Charas is proved. Learned counsel referred to Muhammad Hashim v. The State PLD 2004 SC 856. Learned counsel referred to report of chemical examiner and submitted that whereas in the F.I.R. It is stated that each plastic packet contained one Pati of Charas. In the chemical examiner's report, it was stated that two black brown coloured slabs were wrapped in each plastic packet. Learned counsel submitted that the case property; therefore, does not tally with the report of the chemical examiner. He relied upon Ismail and another v. The State 2004 YLR 894 and Zareef Khan v. The State 2005 MLD 501. Learned counsel relied upon Ghulam Murtaza and another v. The State PLD 2009 SC 362 and submitted that punishment of life was not called for in the circumstances.
8. ' Regarding appellant No,2, learned counsel submitted that appellant No,2 has not been proved.
9. Guilty of any offence in view of the statement of defence witness Nisar Ahmed and no evidence has been produced that Saeed Khan knew about existence of secret cavities. He relied upon Zahoor Ahmed Awan v. The State 1997 SCMR 543.
10. ' Learned D.P.-G., while relying upon Ali Muhammad and another v. The State 2003 SCMR 54, submitted that entire quantity recovered has been proved to be Charas. He relied upon Gul Badshah v. The State 2011 SCMR 984 and submitted that since the appellants were in the Truck, knowledge of existence of secret cavity must be presumed against them. D.P.-G. Next submitted that no question regarding quantity of Charas has been asked in the cross-examination. He referred to section 29 of the Control of Narcotic Substances Act, 1997 and submitted that if the possession is proved, it is to be presumed that the accused persons has committed the offence unless he fails to account for it satisfactorily. On the quantum of evidence of sentence, learned counsel relied upon Surraya Bibi v. The State 2008 SCMR 825.
11. ' While exercising his right to reply, Mr. Kakar relied upon Judgments of this Court in the case of Abdul Aziz and another v. The State, Cr.J.A No,1 of 2008, decided on 17-5-2010, Shams v. The State, Cr.J.A. No,65 of 2008, decided on 3-6-2010 and Syed. Khudai Rahim v. The State, Cr.J.A. No,3 of 2008, decided on 20-3-2010.
12. ' We have considered the submissions made by the learned counsel and have also gone through the record.
13. First contention of the learned counsel for the appellants was that recovery of entire 240 kgs. Of Charas has not been proved. The evidence is clear on this point that 240 packets of Charas were recovered from the secret cavities. These packets were then put in plastic bags in such a way that there were forty packets in each plastic bag and from each plastic bag, one packet was separated and sealed and sent for chemical examination; therefore, it was six kg. Of Charas which was sent for examination. The question in this situation is that what is the quantity of Charas, that has been proved to have been recovered. Learned counsel for the appellants relied upon Muhammad Hashim's case (supra). In this case, appellant was found to be in possession of 288 rods (weighing 4 kg.) of Charas; 4 grams of Charas were taken out as sample for Chemical Analysis. Supreme Court observed as under:-- "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 color of charas like Oil Cake (Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of section 9 is provided. 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 impossible to hold that total commodity recovered from his possession was charas. However, in given facts and circumstances of the case, it would he 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".
14. ' On the other hand, learned D..P.-G. Relied upon Ali Muhammad's case (supra). Facts of the case were that 20 slabs/packets of Charas were recovered from waistcoat below her shirt of a lady and-they were found to be 10 kg, Out of 20r slabs, one slab was sent for chemical examination while rest of slabs were separately sealed. Supreme Court observed as under: - "7. So far the next contention that only one cake/slab was sent to the Chemical Examiner for examination and that too was sent after long delay therefore the prosecution has failed to prove that it was narcotic substance. We also do not find substance and merit in the said contention, considering the defence of the appellant was that the said contraband was not recovered and it was not the defence plea that the so recovered substance was not a contraband or Charas, therefore it could not be said that the prosecution has, failed to prove that the substance so recovered was not Charas or narcotic substance in view of the Chemical Examiner's report Exh.25.
15. Even the appellant has not suggested to the P.Ws. So examined by the prosecution that the substance so recovered was not Charas or contraband or that the substance so recovered was foisted or planted upon the appellant".
16. ' In the present case, the following suggestion was made in the cross-examination of the complainant. "It is incorrect to suggest that remaining quantity of case property is not Charas".
17. Therefore, as far as Ali Muhammad's case (supra) is concerned, it is clearly distinguishable. As has been held by the Supreme Court in Muhammad Hashim's case (supra), stringent sentences have been provided in the Control of Narcotic Substances Act, 1997 and therefore, the Court has to look at the evidence produced before it with the most possible strict eye. There is no evidence whatsoever that the remaining quantity was also Charas. Although a suggestion has been put to the complainant in cross-examination but to us, even if such a suggestion had not been put, it was obligation of prosecution to prove that, the entire quantity recovered was Charas and not the obligation of accused standing trial to prove that so much was not Charas. Burden of proof in criminal trial is on the prosecution; therefore, from the evidence, produced, the maximum, that can be said, is that prosecution has proved six kg. Of Charas and nothing more.
18. ' Learned counsel for the appellants referred to the report of Chemical Examiner wherein it is stated that in each -packet, he found two black brown coloured slabs, which were wrapped in plastic.
19. Learned counsel contended that in the F.I.R., it was stated that 240 packets were recovered. It was, therefore, contention of the learned counsel that property recovered does not tally with the one sent for chemical examination. Learned counsel relied upon Ismail's case (supra). In the reported case, a nylon bag, containing 32 slabs, each weighing one kg. Was recovered from behind the driver's seat. One slab was recovered from the fold of Shalwar of accused. The slab recovered from fold of Shalwar of the accused and one of the slabs recovered from the nylon bag were sealed and sent for chemical examination. Chemical Analyzer's report showed that one packet contained one slab of Charas and the other packet contained two slabs of Charas. Complainant, when confronted with the cross-examined with this discrepancy, stated that Chemical Analyzer had wrongly stated that he received three slabs. It was in this context that the Court held that the discrepancy had created a doubt. In Zarif Khan's case (supra) upon information, a consignment of garments was intercepted at the East Wharf, Karachi and after offloading it from a vassel, 14 slabs of Charas in each of 81 cartons was recovered as also 6438 pieces of raw Charas and 1450 pieces in other 90 cartons. 3 representative samples of 20 grams each were drawn and sent for chemical examination. However, Chemical Analyzer's report indicated that only two samples each containing ten grams of Charas was received by him. This was held by the Supreme Court to have created doubt. The two cases are clearly distinguishable. In the present case, there is no discrepancy in the number of samples received or the weight. What was held to be recovered were the packets and without opening the packets, one packet from each carton was sent for chemical examination. It was the Chemical Analyzer, who opened the packet and found two Paties in each packet. It may be noted that in the F.I.R., there is no statement that a packet was opened and found to contain so many Paties; therefore, contention of learned counsel that there, is a discrepancy in the samples received for chemical examination is without any substance.
20. ' Appellant Saeed Khan was the driver. Learned counsel for the appellant contended that there was no evidence that the appellant had any knowledge about the secret cavities. Learned counsel relied upon Zahoor Ahmed Awan's case (supra). The accused in the reported case was the one, who was sitting with the driver. It may be pointed out that this case was decided by, the Supreme Court on 24-4-1995 and the Control of Narcotic Substances Act, 1997 was promulgated on 11th July, 1997. Section 29 of the Control of Narcotic Substances Act, 1997 provides as under:-- "29. Presumption from possession of illicit articles.---In trials under this Ordinance, it may be presumed, unless and until the contrary is proved that the accused has committed an offence under this Ordinance in respect of--
(a) any narcotic drug, psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance 'or controlled substance has been produced or manufactured, for the possession of which he fails to account satisfactorily".
21. ' Learned D.P.-G. Relied upon Gul Badshah's case (supra). In the reported case, 171 kg. Of Charas, 70 kg. Of opium and 3 kg. Of heroin were recovered froth secret cavities of the vehicle of a Truck loaded with 'bricks being driven by the appellant. The Supreme Court considered it a mitigating circumstance and reduced sentence from death to life. It observed as under:-- "(2) Though counsel for the appellant has argued the case on merits as well and we have also to an extent examined the record, but do not find that the judgments recorded by the two courts below against the appellant, holding him guilty of the offence are infirm for any legal or factual reasons. However in view of the fact that the illicit substance was found concealed in the secret cavities thus ruled out that the appellant was not aware in this regard, thus while considering it to be a mitigating circumstance and keeping in view the ratio of law laid down as Sahibzada and another v. The State (1991 SCMR 895), Nur Hussain v. The State (1993 SCMR 1608) and Zahoor Ahmad Await v. The State (1997 SCMR 543), We by maintaining the conviction of the appellant are inclined to reduce his sentence from death to life imprisonment, but without giving him the benefit of section 382-B, Cr.P.C. Besides the sentence of fine and the imprisonment in default thereto, is also maintained. This appeal is decided in terms of the above".
22. ' In Abdul, Aziz's case (supra), reliance was placed on Zahoor's case (supra). In Syed Khudai Rahim's case (supra), facts were that in a Land Cruiser, 4 men were found sitting. On seeing the Police party, the driver tried to reverse and go back. Police party encircled the vehicle. When floor carpet between the seats was removed, secret cavity was seen and from which 200 grams of Charas was recovered. A Divisional Bench of this. Court observed that none of appellants was owner of the Land Cruiser and they were only passengers in the vehicle. With respect, the Supreme Court, in its latest Judgment in Gul Badshah's case (supra) has held that any secret cavities would be considered as a mitigating circumstance. Moreover, section 29 of the Control of Narcotic Substances Act, 1997 creates presumption, which presumption could be rebutted by satisfactorily explaining it away. No such explanation was given by the appellant No,1, the driver as to whom did the vehicle belong and how did he come about it. Therefore, contention of the learned counsel that possession was not proved as against appellant No, 1 is without any substance.
23. ' This brings us to the question of quantam of sentence. Learned counsel for the appellants submitted that at best, possession of six kg. Of Charas has been proved and, therefore, in accordance with the Judgment of a Full Bench of Lahore High Court in the case of Ghulam Murtaza v. The State, PLD 2009 Lahore 362, the punishment that is called for is imprisonment for 8 years and 6 months and fine of Rs,40,000 and in default, simple imprisonment for 7 months. This was vehemently opposed by learned D.P.-G., who relied upon Suraya Bibi's case (supra). Six packets of Charas weighing one kg. Each which were recovered from the lady. She was sentenced to ten years' R.I with directions to pay fine of Rs,100,000 and in case of default, to undergo one year's simple imprisonment. While concluding, Supreme Court observed as under:- "8. We may point out here that in the cases pertaining to offence of narcotics, it has been seen that the drug peddlers, to achieve their nefarious objects, have adopted obnoxious device by engaging womenfolk and the children and through them crimes is being committed and ultimately mercy is sought against such accused on humanitarian grounds etc. Therefore, to curb such menace, Courts are required to award adequate punishment instead of showing sympathy on the ground that accused is woman or a child, otherwise, the actual accused involved in such, heinous crime, which is against the society, would be encouraged and carriers would also be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking".
24. Thus, it appears that in Suraya Bibi's case (supra), the Supreme Court upheld imprisonment of ten years and fine of Rs,100,000 when the quantity recovered was six kg. In Gul Badshah's case (supra), Supreme. Court took into consideration a mitigating circumstance and reduced the death sentence to imprisonment for life. In presence of Judgment of Supreme Court in Suraya Bibi's case (supra), where six kg. Of Charas was recovered, the punishment awarded to female was ten years'
25. R.I. With a direction to pay a fine of Rs,100,000 and in default thereof, to undergo further simple imprisonment of one year with benefit of section 382-B, Cr.P.C. And since quantity proved to have been recovered from appellant No, 1., as has been held above, is also six kg. With additional mitigating factor regarding existence of secret cavity, as held by the Supreme Court in Gul Badshah's case (supra) therefore, in my opinion, ends of justice would be served if while conviction of Saeed Khan is maintained, the punishment is modified from life to imprisonment for eight years.
26. Sentence of fine and imprisonment in case of default is maintained. Benefit of section 382-B, Cr.P.C.
27. Shall also be given to the appellant No, 1.
28. ' As far as the appellant No, 2 is concerned, he produced DW Nisar Ahmed. In his evidence, Nisar Ahmed stated that he owned a hotel and Ghulam Abbas came to him and he spoke to Saeed Khan and on his intervention, Saeed Khan agreed to take Ghulam Abbas to Karachi because Ghulam Abbas did not have fare amount. No question whatsoever regarding this aspect of statement was put to DW Nisar Ahmed during his evidence. Appellant Ghulam Abbas made a similar statement in his statement under section 342, Cr.P.C. Even the appellant Saeed Khan, who gave statement on oath, stated that at the stop at Havelian, owner of a hotel requested him to give a lift to Abbas. He also stated that Ghulam Abbas is neither driver nor cleaner of the Truck. Again no question in this regard was asked in the cross-examination. Therefore, as far as Ghulam Abbas is concerned, the prosecution has failed to prove that Ghulam Abbas was in any way in possession, actual or constructive, of the narcotic substance or had any link with the vehicle. Consequently, appellant No, 2 is acquitted of the charge. He is ordered to be released forthwith if not required in any other case.
29. ' Result of the above discussion is that while appeal of appellant No, 1 is dismissed, however, the sentence is modified, as detailed above, appeal of appellant No,
2. Is allowed and he is acquitted.