' MUSARRAT HILALI, J.---This judgment shall also decide Criminal Appeal 463-P of 2012 as not only both these matters arise from one and the same F.I.R. But also outcome of common judgment dated 26-9-2012.
2. Appellants in both these appeals faced trial in case F.I.R. No,31 of 2011 dated 29-4-2011 under section 9(c), C.N.S.A. Police Station Customs Investigation and Prosecution Branch, Customs House, Peshawar. At the conclusion, they were found guilty by learned Judge Special Court-V, Nowshera vide judgment dated 26-9-2012 and convicted and sentenced to undergo life. Imprisonment with a fine of Rs,1,00,000 each or in default thereof to suffer two months' SI, however, benefit of section 382-B, Cr.P.C. Was extended to them.
3. On a tip off, the Customs Intelligence and Investigation constituted a raiding party headed by Ali Akbar, Superintendent, who made nakabandi at Rashakai Interchange when in the meanwhile a Bedford Tanker No, C-3760/Swat already spotted to them emerged on the scene, which was signalled to stop. On inquiry, the driver disclosed his name as Khayal Zada while another person seated with him was identified as Gul Mat Shah. Both the accused along with tanker were brought to Intelligence Office Peshawar for the purpose of search where in presence of accused, witnesses and officers the said tanker was searched and from secret cavities made in the tanker different packets of charas weighing 4350-KG was recovered. The complainant separated samples from each packet, mixed them and from the mixture three samples of 10/10 grams each was separated, sealed it into parcels while the remaining bulk was sealed into cloth bag. He prepared the recovery memo, inventory memo, card of arrest of the accused, personal search memos of the accused, drafted the Murasila and sent the same to the Police Station Intelligence and Prosecution Branch Customs House, Peshawar where on the basis of which the instant F.I.R. Was registered against he accused.
4. After conclusion of investigation, challan was submitted in the court against the appellants where they were charge-sheeted, however, they did not plead guilty and claimed trial; At the trial, the prosecution in order to substantiate its case produced five witnesses in all, which are summarized as under:-- ' Asadullah, Intelligence Officer appeared as P.W.1, who stated in respect of the occurrence by narrating facts leading to the Nakabandi at the venue of occurrence, emerging of the tanker, which was already spotted to them, its seizure followed by search and recovery of chars, arrest of the appellants and separation of 10/10 grams each from the packets, preparation of the recovery memo and drafting of the murasila, which was incorporated into F.I.R. Exh.PA.
' P.W.2 is Jehangir, Driver, who is marginal witness to the recovery memo Exh.P W.1/1, inventory memo of the vehicle, sample memo Exh.P.W.1/2, personal search memos of the accused Exh. P.
W.1/4 and Exh. P.W . 1/5.
' Sajidullah, Inspector appeared as P.W.3, with whom the case property pertaining to the instant matter was deposited under DA No,103-C/11 dated 14-7-2011. He also produced the representative samples for exhibition, which are Exhs.P-1 and P-2.
' P.W.4 is Javed Iqbal, Inspector, with whom' the vehicle in question has been deposited vide DA No, 59-E/2011 dated 17-5-2011 bearing Registration No, C-3760/Swat.
' Javed Sultan, Intelligence Officer appeared as P.W.5, the I.O. Of the case, who produced the appellants before court for further physical custody, which was refused, hence they were remanded to judicial lock up. He recorded the statements of the P. Ws. As well as of the appellants under section 161. Cr.P.C. He also applied to MRA for verification of the vehicle in question and after completion of investigation submitted challan before the court.
' Irshad Ali Mehsud, Judicial Magistrate-II, Nowshera appeared as C.W.1, who proceeded to Customs State Warehouse, Peshawar on the direction of Sessions Judge, Nowshera where in his presence sample of narcotics/charas was collected and after getting the representative samples from(sic.) grams each were handed over to concerned Incharge State Warehouse for its safe custody and production before the court. His Certificate in this respect is Exh.P.W.3/2.
' Asadullah, Intelligence Officer, who appeared as P.W.1, was again examined as court witness qua letter No,CH/FIR-31/ 2011/865 dated 29-4-2011 to the extent of application to FSL, which are Exh.C.W.1/1 and Exh.C.W.1/2. The reports are Exh.0 .W . 1/3 and Exh. C .W. 1/4 .
5. After close of prosecution witnesses, statement of appellants were recorded under section 342, Cr.P.C., wherein, they professed innocence and claimed false implication, however, they wished to be examined on oath under section 340(2), Cr.P.C. But did not produce any defence witness. The trial culminated in conviction and sentence of the appellants, which they have now questioned through the instant appeals.
6. The only argument raised by learned counsel for the appellants was that a small quantity of charas from recovered contraband, which was in the shape of packets, was separated and mixed up and out of consolidated substance three samples weighing 10 grams each were separated; one of the three samples was sent to FSL for chemical analysis, therefore, the appellants could only be charged for 10 grams. In support of his plea, the learned counsel relied on PLD 2012 SC 380.
7. On the contrary, learned counsel for State while opposing this appeal contended that huge quantity of narcotics has been recovered from the tanker, wherein, the appellants were found present, which is corroborated by positive expert report of FSL. Moreover, the P.Ws. Were found consistent regarding the mode and manner of recovery of the contraband, therefore, in the given circumstances the appellants were rightly convicted and sentenced.
' We have heard learned counsel for the parties and have gone through the .Record available before us.
8. In the instant case allegedly 4350 KGs charas was recovered from the secret cavities of the tanker. From the recovered stuff, which was in the shape of packets, a small quantity from each packet was separated and mixed together, out of the mixture three samples, each weighing 10 grams were separated of which one sample was sent to FSL for chemical analysis, the second sample was kept in the office record while the third one was deposited in the State Warehouse. The record is silent about the number of packets recovered from the tanker. The weight of the said packets is also not known. Under the law, the prosecution was under obligation to have first weighed every packet and then separate a small quantity from each packet, properly sealed and marked them for chemical analysis. The conviction of the accused would then be based subject to the report of FSL. In this case, the above mentioned legal requirements have not been complied with, therefore, it cannot be said that the sample sent to FSL for analysis was a representative sample. As is observed in the case of Ameer Zeb v. The State (PLD 2012 SC 380), wherein, it was held as under:- "It is our considered opinion that sample taken of a recovered substance must be representative sample of the entire substance recovered and if no sample is taken from any particular packet/cake/slab or if different samples taken from different packet/cake/slab are not kept separately for their separate analysis by Chemical Examiner, then sample would not be a representative sample and it would be unsafe to reply on the mere word of mouth of the prosecution witness regarding the substance of which no sample has been taken or tested being narcotic substance".
' Guidance is also sought from Fareedullah v. State (2013 SCM R 302).
9. In the circumstances, while following the dicta laid down ibid, therefore, we feel that the sentence awarded to the appellants is bad in law as only one sample of 10 grams was sent for chemical analysis and the report thereof is received as positive, hence the appellants were liable to be held responsible only for 10 grams charas, the offence whereof falls within he ambit of section 9(b), C.N.S.A., 1997.
11(sic.) The appellants are in Jail since 29th April, 2011 and have spent. 26 months there. Therefore, we while converting under which the section of law i.e, section 9(c) appellants were convicted into section 9(b), C.N.S.A. And reduce the sentence of the appellants to the one already undergone. The fine amount is also reduced from Rs,1,00,000 to Rs,10,000. ' in the above terms.
Sentence reduced.