SHAUKAT AZIZ SIDDIQUI, J.---Appellant preferred the instant jail appeal being aggrieved of the judgment dated 20-11-2008 passed by learned Additional Sessions Judge, Islamabad whereby he was convicted under section 9(c) of CNSA and sentenced to death with a fine of Rs,100,000/- and in default whereof to undergo 2 years' S.I. In case F.I.R. No,51 dated 9-3-2005 registered at Police Station Tarnol, Islamabad.
2. The prosecution case as set out in complaint Exh.PD, on the basis of which formal F.I.R. Exh.PD/1 was registered and law was set into motion, is that on 9-3-2005, on a spy information received by Collector Customs, Rawalpindi that charas would be smuggled from Tribal Area, through Suzuki Khyber, bearing registration No, LOB-4738, towards Punjab, a raiding party was constituted including lyyaz Masih, headed by Muhammad Hassan, Assistant Collector Customs, Lal Khan, Dy.
Superintendent; Nisar Awan, Superintendent, Muhammad Afsar and Mumtaz Abbasi, constables customs, Ishtiaq Qureshi, driver customs, who made a Nakabandi on G.T. Road, Taxila Chowk. At about 03:30 p.m above referred vehicle came from Peshawar Side and constable Muhammad Afsar, who was in uniform signalled to stop but the car driver did not follow the signal and speeded up the vehicle instead of stopping. The vehicle was chased by the custom staff through official vehicle No,IDE-7161 and the same was made to stop near toll plaza Sangjani. On search of the vehicle huge quantity of charas was recovered from opening of covers of doors from its floor and behind rear seat from secret cavities made therein. The charas, including the polythene bristle packing, was weighed 200 kilo grams. The name of driver of the vehicle was disclosed as Asad Ali Shah s/o Ali Gohar Bacha, present accused, therefore he was arrested from the spot. From recovered Charas six samples of 5 gram each were separated for chemical analysis and remaining charas was packed and sealed in plastic bags and the r complaint was sent to police station for registration of case.
3. The learned counsel for the appellant argued that impugned judgment is against law and facts borne out on the record and is the result of misreading and non-reading of evidence, there is no evidence to the effect that charas was in which shape and in how many packets/pieces/littars etc? Moreover, there is no evidence that charas was separated from each part so recovered and that it truly was a "representative sample". In this regard learned counsel for appellant placed reliance on the latest dictum laid down by the honourable Supreme Court, reported as PLD 2012 Supreme Court 380. The vehicle used for above purpose was also not owned by present appellant.
The statement of P.W.I is also not conclusive with regard to quantity of charas recovered. The punishment imposed by the learned trial court is too harsh in view of facts and circumstances of instant case. That appellant has already undergone more than 7 years since the date of his arrest, therefore, instant appeal may be allowed.
4. Conversely, learned standing counsel opposed the appeal by submitting that very huge quantity of charas has been recovered from appellant, therefore, appellant does not deserve any leniency.
We have heard the learned counsel and perused the record.
5. It is an admitted fact that no separate sample from each part of the recovered charas was collected for analysis, which is violation of law. It does not come within the definition of "Sufficient Quantity" and the packet/sample sent for chemical analysis cannot be said to be a "Representative sample". The latest lightship on the issue came from the ultimate court of the country, which has been relied by the learned counsel for the appellant, it has authoritatively been held that: "sample taken of a recovered substance must be a representative sample of the entire substance recovered----If no sample is taken from any particular packet/cake/slab are not kept separately for their separate analysis by Chemical Examiner; then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witness regarding the substance of which no sample has been taken or tested being narcotic substance- ---At least in some situations Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safety are to be laid down so as to strike a balance between prosecution and defence and to obviate chances of miscarriage of justice on account of exaggeration by investigating agency---Such minimum standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens regarding life and liberty which could not be left at the mercy of verbal assertions of police officers which assertions are not supported by independent evidence provided by Chemical Examiner-- Where any narcotics substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper of 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 accused person from which a sample was taken and tested with positive results.
6. Therefore, we are fully convinced that sample send for chemical analysis under no stretch of imagination can be believed to be a "representative sample". Moreover, the statement of P.W.I, Lal Khan, Dy. Superintendent Customs is also not clear with regard to quantity of Charas. The vehicle used for above purpose was also not owned by the appellant.
7. In these circumstances, we feel that punishment imposed by the learned trial court is too harsh and in the peculiar circumstances of the case, quantity of chars regarding which conclusive evidence by way of report of chemical analysis is available has to be presumed as recovered from the appellant.
8. In this view of the matter, while maintaining the conviction of the appellant, death sentence awarded to him is converted into imprisonment which he has already undergone.
9. With the above modifications, instant criminal appeal is dismissed.
10. Reference is answered in negative.