' MUHAMMAD IQBAL KALHORO, J.---Through instant Criminal Appeal, the appellant namely Ghulam Hussain alias Bashoo has called into question the judgment dated 26-9-2013 passed by 1st Additional Sessions Judge, Dadu in Sessions Case No,482/2010, bearing Crime No,152/2010 Police Station Johi, under section 9(c) of C.N.S. Act, 1997, whereby the appellant has been convicted under section 265-H(ii) Cr.P.C. For committing the offence under section 9(c) of C.N.S. Act, 1997 and sentenced to undergo R.I. For 7 years with fine of Rs,25,000 in default whereof to suffer S.I. For 3 months. The benefit as contemplated under section 382-B Cr.P.C. Has also been extended to the appellant vide said judgment.
2. The relevant facts in small compass in the background are that complainant Inspector Ghulam Ali Chandio posted at Police Station Johi, during patrol duty, acting on a tip-off arrested the present appellant near Qubi in front of his otaque situated in common street and from his body search recovered charas weighing 1050 grams containing big/small prices/cakes, out of which 10 grams of charas was separated and sealed for the purpose of sending it to the office of Chemical Examiner. As a consequence whereof the memo of arrest and recovery was prepared at the spot which was signed by accompanying subordinate staff of The complainant. The accused was then, brought at Police Station where F.I.R. Ante was registered against him.
3. The case was duly investigated by the police concerned against the appellant/accused, and finally he was sent up to the Court for the purpose of his trial.
4. After completing usual formalities, the trial court commenced the case against the accused during which prosecution examined P.W.1/ Investigating Officer SIO Sain Rakhio Jamali at Ex.5, who produced the chemical report at Ex.5-A, P.W.2/mashir A.S.-I. Ihsan Ali at Ex.6, who produced memo of arrest and recovery at Ex.6-A, memo of place of incident at Ex.6-B, the DPP whereafter gave up PW/mashir Muhammad Yousif Hingoro vide statement at Ex.7, P.W.3/Complainant DSP Ghulam Ali was examined at Ex.8, who produced departure entry at Ex.8-A and F.I.R. At Ex.8-B and then the learned DPP for State closed the prosecution side vide statement at Ex.9.
5. At the culmination of evidence adduced by the prosecution witnesses, the statement of accused under section 342, Cr.P.C. Was recorded at Ex.10, wherein the appellant denied the allegations levelled against him by the prosecution and professed his innocence. The record reflects that the appellant neither examined himself on Oath as postulated under section 340(2), Cr.P.C, nor he led any evidence in his defense. The learned trial Court at the end of trial found the appellant guilty of the offence he was charged with hence convicted him in the terms stated above.
6. Learned counsel appearing on behalf of the appellant at the very outset of his arguments submitted that the conviction meted out to the appellant by the trial is based on mis-appreciation of evidence and against the dicta laid down by the honourable Supreme Court in Ameer Zaib's case, reported in PLD 2012 Supreme Court 380. In this regard he argued that per allegations against the appellant, he was in possession of charas weighing 1050 grams containing 20 small and big pieces/cakes, however the entire prosecution case, consisting of various documents viz. F.I.R., memo of recovery, statements of witnesses under section 161, Cr.P.C. And the report of Chemical, is silent as to from which piece/cake of charas, the sample meant for chemical analysis was derived.
According to him the witnesses in their depositions have not specifically identified the pieces of charas used for deriving the samples for sending to the office of Chemical Analyzer to determine the nature and type of contraband recovered from the appellant. Per learned counsel the accused at the most can be held liable for the recovery of 10 grams of charas which was sent to Chemical Examiner as in respect of remaining property there is no report of Expert establishing the same to be contraband item (charas ). He therefore requested that the conviction and sentence of the appellant be modified and reduced to the period already undergone by him as his case comes within the mischief of clause (a) instead of clause (c) to section 9 of CNS Act 1997.
7. Learned A.P.G. Appearing on behalf of the State did not raise objection to the suggestion made by learned counsel for the appellant in view of above legal as well as factual position obtaining in the prosecution case.
8. Before we dilate upon the merits of the case in the light of submissions advanced by the learned defence counsel, we find it pertinent to mention here that vide order dated 21-10-2013, the present appeal was admitted by this Court for regular hearing and R&Ps were also called from the trial Court and paper book was ordered to be prepared, which however could not be done as vide letter dated 10-12-2013, the learned 1st Additional Sessions Judge, Dadu informed that R&Ps in the above case were misplaced and such report (by him) was submitted to the learned Sessions Judge, Dadu.
9. Thereafter, on 12-6-2013 this Court passed the following order:-- "After the report dated 11-3-2014 submitted by learned 1st Additional Sessions Judge, Dadu, no further report has been submitted by him as to what happened in connection with misplaced R&Ps of the case No,482/2010 St. v. Ghulam Hussain alias Bashoo. Learned District Judge, Dadu is, therefore, directed to expedite the matter and submit the report and also to collect the material documents including duplicate Chemical Examiner's report, F.I.R., mashirnama etc and submit the same along with his report so that the appeal of the appellant may be heard and decided on the basis of such documents."
10. The learned Sessions Judge in compliance of the above order informed this court vide his letter No,3184 dated 19-6-2014 that the learned 1st Additional Sessions Judge, Mehar, Mr. Munawar Ali Lodhi was appointed as Enquiry Officer into the matter who fixed the liability regarding missing of R&Ps of Special Case No,482/2010, State v. Ghulam Hussain alias Bashoo, Crime No,152/2010 upon Mr. Shamsuddin, Clerk against whom the enquiry proceedings are continuing and sent up the following documents:--
(i) Copy of F.I.R. In Crime No,152/2010.
(ii) Attested photocopy of charge sheet.
(iii) Attested Photocopy of memo of arrest and recovery dated 2-12-2010.
(iii) Attested photocopy of memo of inspection of place of recovery dated 2-12-2010.
(iv) Original statements of P.Ws. A.S.-I. Ahsan Ali, HC Muhammad Yousif Hingoro, HC Ghulam Qassim, PC Zulfiqar and PC Ghulam Rasool.
(v) Chemical examiner report.
(vi) Photocopies of the depositions of mashir of arrest and recovery by A.S.-I. Ahsan Ali Soomro, as well as, Sam Rakhio Jamali Investigating Officer.
(vii) Attested copy of Judgment dated 26-9-2013 passed by the Court of 1st Additional Sessions Judge, Dadu.
' Vide order dated 25-6-2014 the above documents .Are acknowledged by this Court.
11. We, in view of above position, are constrained to look into the material sent to us hereinabove to appreciate the contentions raised by the learned defence counsel.
12. The perusal of F.I.R., Challan and memo of recovery reflects that 1050 grams of charas consisting of 20 pieces of different size were recovered from the appellant, out of which 10 grams of charas was separated and sealed to be sent for Chemical Analysis. In all the documents supra, the exact weight of each piece of charas recovered from the accused is not identified. Nor an attempt appears to have been made by the complainant party, while preparing the above papers, to specifically put down as to from how many pieces of charas , the sample was drawn for chemical examination and as to whether, in fact, from every piece/cake of charas the sample was separated or not. In this regard there is no confidence-inspiring material before us to infer that the sample of 10 grams was drawn from every piece of charas recovered from the accused.
13. The P.W.2 namely lhsan Ali in his examination in chief at Exb.6 has reiterated, the same facts in the same vein, his such piece of evidence is reproduced herewith:- " His personal search was conducted and during the course of search one plastic shopper of blue colour was recovered from his fold which was found containing charas total 20 little and big pieces of charas. From his side pocket Rs,200 in different notes were recovered. The charas was weighed by me in presence of SHO which became 1050 grams, out of which 10 grams of charas was separated for chemical examination while remaining was sealed separately...."
14. The said P.W., in cross examination has deposed that they had separated pieces for sample from each piece of recovered charas for chemical examination. He has admitted that the little pieces which were derived from all the pieces of charas were not measured, and in the same breath has stated that "the whole sample became 10 grams" which was meant for chemical examination. The whole exercise executed at the spot for gleaning tiny particles from pieces of charas with such precision that it became exactly 10 grams at first attempt sounds surprisingly unbelievable and does not inspire confidence. He has further stated that 10 grams sample was jointly sealed. His such assertion in cross examination relating to the sample drawn from each piece of charas however, does not tally with the narrations stated by the prosecution in the documents as discussed above. He has not specified in his deposition as to whether the pieces taken out for the purpose of sample (10 grams) from the whole property viz. 1050 grams of charas which contained 20 pieces of different size, were either deliberately blended into one or they were left in their original shape (pieces of different sizes) to be lumped into one inadvertently. He has also not stated the weight of each small piece taken out for the purpose of sample to presume there were 20 representative pieces of contraband secured from appellant. Moreso his evidence qua sample is in conflict with the report sent by the chemical examiner who has described the sample of charas received by his office on 8-12-2010 in following words:- "parcel containing one greenish brown semisoft piece (rod) with smell like charas".
' And while giving the result of examination the said officer has described the same in following words:?
"The above parcel contains one piece of charas."
15. The report of chemical examiner reflects in clear terms that the sample which was received by his office contained only one piece of charas and was in rod shape which rules out any possibility of different pieces of charas blended together with each other either intentionally or not to make out one piece. Inasmuch as, the different pieces of charas could be bunched together but cannot be rod-shapped. The one piece of charas that too in rod-shape received by the office of chemical analyzer therefore, does not correspond with the evidence of mashir and leads us to infer that the sample allegedly taken is not representing the whole property recovered from the appellant and barring the positive report of chemical examiner in respect of the sample separately sealed at the spot, the prosecution does not possess any material to establish the remaining property to be contraband.
16. P.W.1 Sain Rakhio, incharge PP Hairo Khan who is I.O. Of the case and whose evidence is available at Ex.5 has contradicted P.W.2 namely Ahsan Ali in respect of the sample derived from the whole property i,e, 20 pieces of difference size. He has admitted that he had received one piece of charas admeasuring 10 grams for the purpose of chemical examiner. He has further admitted that the said sample of charas was lying with the WHC of P.S. He has shown ignorance as to how WHC had sent property for chemical analyzer. His evidence finally resolves the controversy prevalent in the present case with regard to the sample of charas allegedly recovered from the appellant. Since he has admitted that he had received one piece of charas weighing 10 grams as sample for sending to the office of Chemical Examiner, the same cannot be described authoritatively to be representative of all the 20 pieces of charas secured from the accused at the time of incident.
17. In view of such discussion, we are of the view that the direct .Aid down by the honourable Supreme Court in the case of Muhammad Hashim v. The State, reported in PLD 2004 Supreme Court 856 is applicable in the present case. The honourable Supreme Court in above case has observed in Para No,3 as under- 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.... "
18. The honourable Supreme Court in Ameer Zaib's case reported in PLD 2012 Supreme Court 380 has observed in Para No,8 of its judgment as under:-- "For the purpose of clarity and removal of confusion it is declared that where any narcotic substance is allegedly recovered while contained in different packets, wrappers or containers 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 or contained and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against the accused person from which a sample was taken and tested with a positive result."
19. In the present matter the recovery of charas shown against the accused is 1050 grams containing 20 pieces of different size. By the principle of average, if 20 pieces of charas are equally divided, the each piece would become in between the limits of 52 to 53 grams. On such analysis, in our view the accused becomes only liable for 52/53 grams of charas from which the sample appears to have been taken, for the prosecution has failed to discharge its burden of proving beyond reasonable doubt the recovery of 1050 grams of charas from the appellant as required under Article 117 of Qanun-e-Shahadat. It is pertinent to reproduce Article 117 of Qanun-e-Shahadat:-- "Burden of proof (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
' Illustrations
(a) A desires a Court to give judgment that shall be punished for a crime which A says B has committed. A must prove that B has committed the crime".
20. Nevertheless, since the report of chemical examiner connotes that the piece of 10 grams received by its office was charas that represents one piece of charas approximately of 52/53 grams which the prosecution through reliable evidence has proved to have been recovered from the appellant and which fact has not been controverted by the defence, we hold the appellant responsible for the possession of one piece of charas. Consequently, we are of the view that the case of the appellant does not come within the mischief of clause (c) but it falls within the ambit of clause (a) to section 9 of C.N.S. Act, 1997. The perusal of jail roll sent by the Superintendent Central Prison, Hyderabad dated 1-7-2014 shows that appellant has served his sentence for 11 months and 4 days and has earned remission of 4 months and 15 days. His unexpired portion of sentence has been stated as 5 years 8 months and 1 day with fine.
21. For what has been discussed above, we while dismissing the instant appeal, modify the conviction and sentence awarded to the appellant from section 9(c) to section 9(a) of C.N.S. Act, 1997 and reduce it to the period he has already undergone with fine of Rs,5000 or in default to suffer S.I. For 2 months and 15 days. The sentence awarded to the appellant is in terms of sentencing policy prescribed in Ghulam Murtaza's case reported in PLD 2009 Lahore 362. The appellant shall be released forthwith if his custody is not required in any other case.