' MUHAMMAD AZIM KHAN AFRIDI, J.---Muhammad Zahid Khan son of Muhammad Akram Khan resident of Paran Bahtar More Garhi Hassu, Fateh Jhang District Attock, hereinafter referred to as the convict/appellant has preferred the instant criminal appeal under section 48 of the Control of Narcotic Substances Act, 1997, hereinafter referred to as the Act against order dated 1-3-2011 vide which learned Additional Sessions Judge/Special Judge, Islamabad, convicted and sentenced him to suffer life imprisonment (R.I.) with fine of Rs,300,000 and, in case of default in payment of fine to further undergo one year's S.I. Benefits of section 382-B, Cr.P.C. Were also extended to the appellant.
2. Brief facts giving rise to the present appeal are that Muhammad Asghar Bhatti S,I. Along with other police personnel of Aabpara Police Station had laid a picket at Chand Tara Chowk Aabpara when, at about 6-00 p.m., vehicle bearing Registration No,IRC/7351, white colour, driven by accused Muhammad Sanam son of Muhammad Arbab with front seat occupied by convict/appellant Muhammad Zahid Khan son of Muhammad Akram Khan was intercepted. Their identity cards were secured for checking their identity. Accused Muhammad. Sanam, meanwhile, left the spot on the pretext to urinate, while convict/appellant was tactfully deboarded from the vehicle. Accused Muhammad Sanam, after covering certain distance, made an attempt to run from the spot who was chased but due to considerable distance managed his escape.
3. On search of the vehicle charas, wrapped in 152 packets and concealed in the boot of the car and seats, weighing four mound and 10 kg, were recovered and out of each packet small quantity for, chemical analysis was separated and a sample of 500 grams was prepared and sealed in a separate parcel, while the remaining charas were also sealed in parcels in the prescribed manners. The vehicle was taken into possession and convict/appellant arrested on the spot.
4. On the basis of Murasla. (Exh.P.B), F.I.R. No,91, (Exh.P.B/1) under section 9-C of C.N.S.A. 1997 at Police Station Aabpara, Islamabad, was registered.
5. After completion of investigation, convict/appellant was summoned from judicial lock-up.
Copies of relevant documents were delivered whereafter he was charged for the commission of offence, however, he denied the charge and, thereafter, the prosecution was asked to produce evidence, which was so produced and recorded by the learned trial Court whereafter statement of convict/appellant under section 342, Cr.P.C. Was recorded. He, however, did not opt to produce evidence in defence nor deposed as required under section 340(2), Cr.P.C.
6. The learned trial Court, after hearing arguments of learned counsel for the parties and evaluating the evidence adduced by the prosecution found the convict/appellant guilty of the offence punishable under section 9(c) of the Act and sentenced him to suffer rigorous life imprisonment and to pay fine of Rs,300,000 and, in default, to suffer further simple imprisonment for one year. He was extended the benefit of section 382-B, Cr.P.C.
7. Aggrieved of the conviction recorded by the learned trial Court vide judgment dated 1-3-2011, the appellant has preferred the instant appeal.
8. Learned counsel for the convict/appellant has argued that the prosecution has failed to bring guilt home to the convict/appellant. That the actual accused was let free by the police and, the convict/appellant, who had admittedly offered no resistance, was falsely enroped in the case. That the prosecution has miserably failed to prove that the stuff recovered from the vehicle was in fact charas in toto as the prosecution was obliged to analyze each and every packet through a separate sample through chemical analyst. That though nothing was recovered from the personal possession of the convict/appellant and that the prosecution has failed to connect him with the alleged recovery or establish his conscious possession yet he would not press the said grounds and would plead for the reduction of quantum of sentence as the whole stuff recovered from the vehicle was not established to be charas.
9. Learned Deputy Attorney-General appearing for State argued that the prosecution has established its case beyond any shadow of doubt. That though the parcel prepared for the chemical analysis was one and prepared from the sample taken from each packet, however; assimilation and merger of the samples in one parcel of 500 grams would not raise presumptions that the stuff in each packet was not charas. That one sample prepared out of the lot and analyzed was sufficient to establish that each and every packet was containing charas, further argued that the appellant was arrested from the same vehicle from which the charas was recovered and as such plea of false implication of the convict/appellant in the case was not sustainable.
10. We have heard arguments of learned counsel for the parties and, perused the record.
11. Since the learned counsel for the convict/appellant restricted his prayer in arguments to reduction of quantum of sentence as such we would also confine our findings to the extent of prayer of learned counsel for the convict/appellant.
12. It is evident from the contents of Murasila (Exh.P.B), F.I.R., (Exh.P.B/1) and evidence produced by the prosecution that only one sample of 500 grams was prepared and sent for chemical analysis which, C as per report of Chemical Examiner, Exh.P.D. Was found to be a sample of charas useable for intoxication. It is worth-noting the requirement of segregating a mandatory small portion from each packet for independent analysis was done away with by mixing the samples with each other, which process of merger, has left us with no option but to rule that the procedure adopted by the investigators was short of prescribed standards under which stuff segregated from each packet was to be examined and analyzed independently.
13. We are guided and fortified in our view by the judgment of August Supreme Court of Pakistan in Ameer Zeb's case passed in Criminal Appeal No,565 of 2009, wherein report of chemical analyst, in similar circumstances, was considered as positive for one slab and, for safe administration of justice, accused charged for having in his possession 80 cakes/slabs of 20 Kg, was sentenced to rigorous imprisonment of one year and three months and fine of Rs,9,000 or in default to suffer simple imprisonment for three months and, fifteen days.
14. In the case in hand, positivity of sample had, at the most established beyond any shadow of doubt that the stuff recovered from the car was also containing charas. In the absence of any definite evidence regarding the quantity of charas with reference to its weight it cannot be stated with certainty or without entertaining any doubt, that the stuff recovered was containing charas exceeding ten K.G. (underline by D us for emphasis), Safe and benign interpretation attuned to criminal jurisprudence would, therefore, lead us to hold that though the recovery of charas from the car was established but quantity of the same exceeding 10 Kg was not established. Due to unestablished quantity the case of prosecution would not fall within the ambit of the proviso added to section 9(c) of the Act under which an accused having narcotics exceeding 10 Kg is to face punishment not lesser than life imprisonment. As such, it would not be obligatory for the Court D to punish the convict/appellant to undergo sentence not lesser than life imprisonment.
15. Section 9(b) of the Act prescribes punishment extendable to seven years and fine while section 9(c), when read in isolation to the proviso, prescribes punishment of imprisonment extendable to 14 years and fine upto one million rupees.
16. According to section 367(3), Cr.P.C. When a doubt is entertained, as under which of the two sections, or under which of the two parts of the same section the offence lies, the court, in such a situation, while awarding punishment, would distinctly express the same and pass judgment in alternative.
17. Criterion highlighted in the section 367(3), Cr.P.C. Has been prescribed for the offences punishable under P.P.C. But the principles laid down therein can be beneficially applied to the situation arisen above. In the case in hand it is abdundantly clear that the narcotics recovered from the car were at least more than one hundred grams and the same, in view of our findings recorded above, could not be established to be more than 10 kgs. Thus conviction is to be recorded either under section 9(b) of the Ordinance which prescribes punishment for narcotics exceeding 100 grams but not exceeding one kilogram or section 9(c) of the Ordinance which prescribes punishment for such substance exceeding one kilogram. Convict/appellant under section 9(b) of the Act, can be punished upto 7 years and fine and, under section 9(c), he can be punished upto 14 years and fine upto rupees one million. Thus confining our findings to the reduction of sentence as pleaded before us, and applying the principles originating from section 367(3), Cr.P.C. We reduce the quantum of the sentence to six years rigorous imprisonment and fine of Rs,100,000 which conviction and sentence shall be read to have been recorded under section 9(c) or, alternatively, under section 9(b) of the Ordinance. We would also direct that in default of payment of fine the convict/appellant shall undergo further simple imprisonment for a period of three months. Benefit of section 382-B, Cr.P.C. Extended to him by the trial Court shall remain intact.
18. The impugned judgment of conviction recorded by the learned trial Court stood modified in the above terms.
Sentence reduced.