Shahid Hameed Dar, J.--The appellant, Missal Khan, by filing the instant appeal, has challenged judgment dated 14.4.2012 passed by learned Additional Sessions Judge/Special Judge under CNSA, Kharian (Gujrat), whereby he was held guilt under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for seven years with fine of Rs, 30,000/- or in default thereof to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. Was, however, extended to him.
2. Concisely, the prosecution story as unfurled by Talib Hussain SI (complainant/P.W.5) in the F.I.R.
(Exh.PC/1), is that he along with fellow police officials was present at Guliyana More on patrol duty, at 2.10 a.m., on 1.9.2010, when he received a spy information that a Mazda truck bearing Registration No, 3133/ Peshawar loaded with charas was coming from Gujrat side, whereon he barricaded the G.T. Road near village Thikrian and stopped the said truck when it reached there; he found' five packets of charas weighing five kilograms, lying between the feet of Missal Khan (appellant), who sat on the front seat beside the driver of the truck; he segregated ten grams each from each packet, for onward transmission to the office of Chemical Examiner for its analysis; the segregated samples were rendered into a sealed parcel and so was done with the bulk left the complainant reduced into writing complaint (Exh.PC) and despatched it to the Police Station concerned through Qadeer Ahmad 2742/C for registration of formal F.I.R.; on receipt thereof, Sajjad Akhtar ASI/DO (P.W.2) drew up F.I.R. (Exh.PC/1), at 2.30 a.m. The same day.
3. After completion of the investigation, challan against the appellant was prepared and submitted before the Court for his trial in accordance with the law. On his indictment; the trial commenced. He pleaded not guilty and claimed a trial. The prosecution produced six witnesses, namely, Hameed Akhtar 3100/C (P.W.1), Sajjad Akhtar ASI (P.W.2), Nazar Ullah Khan 147/C (P.W.3), Imtiaz-ul-Haq 842/MHC (P.W.4), Talib Hussain SI-complainant (P.W.5) and Khalid Hussain SI/I0 (P.W.6). Thereafter, the appellant was examined under Section 342, Cr.P.C., whereby he proclaimed his absolute innocence in the matter. He while answering the question, "Why this case against you and why the PWs have deposed against you", stated as under: "All the PWs are police officials. On the relevant date and proximately at the same time huge quantity of narcotics was recovered and cases under FIR No, 206 and 207 was registered against the accused of those cases. I was taken into custody from a truck hotel within the premises of Lalamusa City while I was taking a tea and could not meet illegal demands of gratification and on my refusal abuses were exchanged between me and the police officials and the police got annoyed with me and lateron falsely involved in this case and some charas recovered in cases FIR No, 206 and 207 were bifurcated and was involved in this false case. This my assertion is very much testify by the stamp used with the abbreviation of TH used in case FIR No, 206 and 207, and in this case also which indicate that all the parcels were prepared at one place and I have make an escape goat in this case."
' He did not opt to appear under Section 340(2), Cr.P.C., but intended to adduce evidence in defence and produced FIR No, 206/2010 P.S Sadar Lalamusa & FIR No, 207/2010, both dated 1.9.2010, as Exh.DA & Exh.DB, respectively for the said purpose.
4. After culmination of the trial, the learned trial Court pronounced its verdict and awarded punishment to the appellant in mentioned terms.
5. We have heard learned counsel for the parties and perused the record with their able assistance.
6. The main argument pressed into service by learned counsel for the appellant is that the contraband allegedly recovered at the instance of the appellant was wrapped in five packets and each packet contained more than one slab, but the Investigating Officer did not take a separate sample from each cake/slab/piece and took only ten grams each from each packet and packed them in separate sealed parcels for transmission to the office of Chemical Examiner. The learned counsel has further contended that if proper calculations were made keeping in view the weight recorded by Talib Hussain SI (complainant/P.W.5), the number of slices in each packet should be between nine to ten with approximate weight of 111.11 grams to 100 grams of each slice. He has further calculated that weight of each packet, keeping in view total weight of the narcotic substance i,e, 5000 grams, should weigh around 1000 grams. It has been submitted by the learned counsel that the solitary sample-test-report by the office of Chemical Examiner would lead to believe that the contraband substance, recovered from the possession of the appellant merely weighed 50 grams and rest of the quantity as shown in the complaint (Exh.PC) was not a contraband item because there was no evidence on the record to believe that "slices of charas" not even touched by the Investigating Officer for segregation of samples, were a narcotic substance.
7. On the other hand, learned Deputy Prosecutor General Punjab has submitted that it was not legally required to take a separate sample from each cake/slice of the narcotic substance recovered nor it was legally essential to send every such sample separately to the office of Chemical Examiner for analysis. He has maintained that the learned trial Court had committed no illegality in convicting and awarding sentence to the appellant for the entire quantity of five kilograms of charas and that the argument raised by learned counsel for the appellant were based on misconception of the law and facts.
8. Whether or not the arguments of the learned counsel for the appellant contain any substance therein, is a question which can easily be answered in the light of a mega judgment of the Hon'ble Supreme Court of Pakistan, titled Ameer Zeb v. The State, reported as P.L.D. 2012 S.C.
380. While dealing with an identical proposition, the apex Court referred to many a case-law on the subject and concluded 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 container 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."
9. Insofar as case in hand is concerned, we learnt from the contents of the F.I.R. (Exh.PC) and from the testimonies of Hameed Akhtar 3100/C (P.W.1) and Talib Hussain SI (P.W.5) that the appellant possessed five packets of charas, weighing five kilograms, which lay in between his feet, when he occupied a seat, beside the driver of the above-said truck. Talib Hussain SI (P.W.5) segregated ten grams each from all five packets for chemical analysis, by the office of the Chemical Examiner for the Punjab, Lahore. The net weight of five samples read as fifty grams in toto. We do not find from the complaint (Exh.PC) as to how many slabs/cakes/slices were there in one packet nor this fact was disclosed in the seizure-memo. (Exh.PA), attested by Kashif Sohail 3213/C PW (since given up) and Hameed Akhtar 3100/C (P.W.1). This detail, however, appeared on the record when Talib Hussain SI (P.W.5) deposed about in his testimony that each packet consisted of 9/10 slabs/slices.
The attesting witness Hameed Akhtar 3100/C (P.W.1) could not tell about the exact number of slabs/slices in one packet but he certainly admitted that there were slabs of charas in each packet. He showed ignorance if sample was taken from every slab of a packet nor he could clarify as to how many slabs were used by the complainant-SI for chopping-off the samples of ten grams each. The deposition made by P.W.5 as to number of slabs in a packet, weighing one kilogram leads us to believe that each packet contained 9/10 slices, each showing weight of 111.11 grams or 100 grams. The report of the Chemical Examiner (Exh.PE) confirms that five sealed parcels/packets weighing fifty grams contained charas. The obscurity hovering over the prosecution case as to whether sample of ten grams was segregated by the complainant-SI (P.W.5) from one slab/slice or from all 9/10 slabs of a packet gives rise to a crucial question, which has not been viable answered by the prosecution during the course of the trial. In such a situation of ambiguity only one them to the office of the Chemical Examiner for analysis. It has been worked out in the preceding lines that each slab or slice of the recovered stuff either weighed around 111.11 grams or about 100 each from all five packets had been used by the complainant-SI to segregate five samples, weighing ten grams each, for transmitting estimation can be made that one slab grams.
The estimation, one going to the favour of the accused is preferred for the safe administration of justice, to draw a conclusion that the prosecution had succeeded in establishing the guilt of the appellant only to the extent of possessing 500 grams of contraband charas by him at the crucial hour. With a small mental exercise, it can safely be arrived at that 45 slabs/slices of the recovered stuff had gone unrepresented and it was indiscernible whether they were 'a narcotic substance' within the mischief of the Control of Narcotic Substances Act, 1997. Hence, rest of the material recovered shall be rejected as mere junk. So far as the merits of the case are concerned, learned counsel for the appellant showed little interest in challenging the conviction of the appellant in this case and he mainly focused on a probability, whereby he could derive benefit from the aforesaid mega judgment of the apex Court, in terms of reduction in the sentence of the appellant. The crux of the above discussion is that the prosecution had failed to establish its case against the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and what they could ably substantiate during trial, it was an offence under Section 9(b) of the Act (ibid).
10. In this view of the matter, this appeal is partly allowed, the conviction of the appellant recorded for an offence under Section C 9(c) of the Control of Narcotic Substances Act, 1997 is converted into one under Section 9(b) of the said Act and following the sentencing policy, as enshrined in the case of Ghulam Murtaza and another v. The State (P.L.D. 2009 Lahore 362), the appellant is sentenced to rigorous imprisonment for one year and six months and to pay a fine of Rs, 11,000/- only and in default of payment thereof, to undergo simple imprisonment for four months. The benefit of Section 382-B, Cr.P.C. Shall be extended to him. We gather from the record that the appellant is behind the bars since 1.9.2010, which means that his continued incarceration is almost treble the period of sentence, as awarded to him through the instant judgment, which would not only cover the substantive sentence of imprisonment, but also the period of simple imprisonment, as to default in paying the fine-amount. Therefore, it is concluded that the appellant be released from the prison forthwith, if not required in any other case.
11. This appeal is disposed of in above terms.