Qazi Faez ha, J.--This appeal assails the judgment of a Division Bench of the Hon'ble Balochistan High Court whereby the appeal preferred by the appellant was dismissed vide judgment dated 21st October 2010 and the sentence awarded by the trial Court was maintained. The trial was conducted by the Special Judge, Control of Narcotics Substances, who vide judgment dated 25th July 2009 had convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced him to suffer rigorous imprisonment for life and to pay a fine of one hundred thousand rupees and in default thereof to undergo simple imprisonment for an additional period of one year, however, the benefit of Section 382-B of the Code of Criminal Procedure ("the Code") was extended to the appellant.
2. The case against the appellant was that he was transporting 170 kilograms of cannabis (charas) whilst driving a black colour car having Registration. No, APA 739 Sindh, which was stopped at around L30 p.m. On 13th September 2008 to be searched and the said narcotics were recovered from secret compartments in the boot of the car. The personnel of the Anti Narcotics Force ("ANF") had received secret information that the appellant Khuda Bakhsh, who was in the narcotics trade, would be transporting narcotics in the said car from Kuchlak, consequently, the said car was stopped at the Beleli check post on the outskirts of Quetta and the accused along with the car were taken to the Airport Police Station where on a search made under the supervision of the Senior Superintendent of Police Saddar, the said narcotics in 143 packets which were slab shaped and 27 packets which were rod shaped were discovered. The first information report ("FIR") was lodged upon the complaint of Sub-Inspector Muhammad Afzal on 13th September 2008 at 3 p.m.
3. The prosecution examined three witnesses to establish its case against the appellant as under:-- i. Sub Inspector Muhammad Afzal (PW-1) who was the complainant who had the FIR (Exhibit P/1-B) lodged. He also produced the recovery memo. (Exhibit P/1-A) of the narcotics; ii. Head Constable Muhammad Zahir (PW-2) who was the mushir of recovery, identified the seized material (Exhibits P/1 to P/12) and also identified the vehicle No, APA 739 (Exhibit P/13). His narration of events was similar to that of PW-1; and iii. Abrar Hussain (PW-3) the Investigating Officer ("10") of the case. He recorded the statements of the witnesses, sent the samples to the Forensic Science Laboratory ("FSL") and produced FSL report (Exhibit 3-A), conducted the investigation and submitted investigation report under Section 173 of the Code (Exhibit P/3-B).
4. The statement of the appellant was recorded under Section 342 of the Code wherein he denied the allegation and produced an affidavit and an application of one Naseer Ahmed as Exhibit D/1-A and Exhibit D/1-B respectively, wherein it was stated that the narcotics were recovered from Naseer Ahmed's possession from another vehicle, but foisted upon the appellant. However, he elected not to record his statement on oath under Section 340(2) of the Code nor sought the production of Naseer Ahmed as a defence witness.
5. We have heard the learned counsel and gone through the record of the case. The appellant in his statement does not deny driving the vehicle from which narcotics were recovered and admits that it was stopped at Beleli check post, but states that the narcotics were foisted upon him and in this regard produced the affidavit of Naseer Ahmed, however, he did not seek the production of Naseer Ahmed as a defence witness nor recorded his own statement on oath. The prosecution on its part had established the recovery of the narcotics from the vehicle being driven by the appellant. The FIR was lodged within a reasonable period after a thorough search of the vehicle had been conducted. There is also no reason why the appellant, who was not previously known to the PWs, would be falsely implicated. The report of FSL also confirms that, after conducting the requisite test, the substance sent to it was narcotics, i.e, "charas - Baked Cannabinoids".
6. That the FSL report states that the parcel received by FSL was: "a duly sealed Parcel No, 1, bearing one seal. The parcel hold two Kgs (comprising of small pieces) of suspected material in semi solid form of dark green in colour." The FSL report states that only one "sealed parcel" was received by it, and which did not contain additional sealed parcels/packets. Therefore, the contention of the prosecution that separate samples were removed from each packet of the seized material, is not borne from the record as the FSL states that just the one "sealed parcel" was received. Therefore, whilst it has been established that the seized substance sent for chemical examination was charas we cannot presume that the entire quantity of the seized material was charas too, since separate samples taken from each packet were not so sent for examination. In the case of Ameer Zeb v.
State (PLD 2012 Supreme Court 380) a five member bench of this Court had held, that since the Act prescribed different punishments which depended on the quantity of narcotics, therefore, it was necessary to ensure that samples were taken from each packet (if there were more than one) and which must be separately sealed and sent to the laboratory. It would be useful to reproduce the following extract from the said judgment: "It is our considered opinion that a sample taken of a recovered substance must be a 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 packets/cakes/slabs are not kept separately for their separate analysis by the Chemical Examiner then the sample would not be a representative sample and it would be unsafe to rely on the mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance."
7. The quantum of sentence in narcotic substances cases depends upon the quantity of the recovered substance. However, the samples that were stated to have been taken from different packets were not separately sealed and sent for separate analysis to the chemical examiner. In the present case, two kilograms were sent together in one sealed parcel, therefore, the appellant could at best be held liable for the said two kilograms. The prosecution however had succeeded in establishing its case against the appellant to the extent of two kilograms of narcotics; consequently, we uphold the conviction of the appellant under Section 9(c) of the Act. The conduct of the prosecution, in so far as it did not send to the chemical examiner separately sealed samples from the different seized packets, is to be deprecated.
8. That we now consider the question of the sentencing of the appellant, but before doing so it would be appropriate to reproduce Section 9 of the Act: "Whoever contravenes the provisions of Section 6, 7 or 8 shall be punished with-
(a) imprisonment which may extend to two years, or with fine,. Or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
Section 9 of the Act provides for progressively greater punishments depending on the quantity of narcotics. The present case comes within the ambit of Section 9(c), since the quantity of narcotics is in excess of one kilogram. The said provision contemplates a number of sentences "death", "imprisonment for life", "imprisonment for a term which may extend to fourteen years", and also a "fine which may be up to one million rupees". The proviso to the said section, however, provides that if the quantity exceeds "ten kilograms the punishment shall not be less than imprisonment for life."
Section 9(b) is attracted when the quantity, "does not exceed one kilogram" and provides for "imprisonment which may extend to seven years" and an unspecified amount of "fine". Therefore, if we consider Sections 9(b). And 9(c) together, then it is clear that for a quantity exceeding one kilogram an imprisonment for a period exceeding seven years is mandated, and if it exceeds ten kilograms it cannot be less than imprisonment for life. Section 9(c) also provides for imprisonment "which may extend to fourteen years", which would mean that the period of imprisonment in respect of narcotics weighing more than one kilogram, but less than ten kilograms, should be for a period greater than seven years to anything less than fourteen years.
9. In determining the quantum of sentence it would also be appropriate to consider the nature of the narcotic substance, since some narcotics are more dangerous and harmful than others. We are cognizant that the Act does not explicitly state that the type of narcotic substance determines the quantum of sentence, however, the fact that the Act provides for a range of sentences implies as much.
10. That in the present case the appellant was to be sentenced for two kilograms of charas. Charas unlike other narcotics such as heroin is less harmful and dangerous. In the present case, keeping in mind the quantity (two kilograms), type of narcotic substance (charas) and as this was the appellant's first offence, the sentence of imprisonment for life awarded to the appellant appears to be excessive. The imprisonment for life or death is attracted when the threshold of ten kilograms (proviso to Section 9) is reached. Section 9(c) also provides for imprisonment for a term of up to fourteen years, and if this provision is read with Section 9(b) of the Act (which provides a maximum imprisonment term of seven years in respect of a quantity of up to one kilogram) then the sentence for a quantity of two kilograms of charas could range from imprisonment of over seven years and up to fourteen years. Therefore, whilst maintaining the conviction of the appellant under Section 9(c) of the Act we reduce his period of rigorous imprisonment to eight years with a fine of one hundred thousand rupees and in default of payment of fine to undergo simple imprisonment for six months. The benefit under Section 382-B of the Code shall also be extended to the appellant.
11. That this appeal is partly allowed to the extent of the quantity for which the appellant is convicted and the consequent reduction of sentence.
I have written a separate note but I agree the order of reduction of sentence.
Sd/- Ijaz Ahmed Chaudhry, J.
Sd/- Dost Muhammad Khan, J.
Sd/- Qazi Faez Isa, J.
I agree with the judgment of my learned Brother Mr. Justice Qazi Faez Isa, in so far as it reduces the period of sentence of the appellant to eight years with a fine of one hundred thousand rupees.
However, so far as the observations regarding award of punishment, in my view it is the discretion of the Court to award any sentence, which it deem fit in the facts and circumstances of a certain case. Appeal against the judgment of Lahore High Court regarding sentencing policy is also pending before this Court. With this additional note, I fully support the judgment.