Abdul Sami Khan J:- Noor Ibrar appellant, by filing the instant appeal, has challen ged the vires of judgment dated 05.04.2010 passed by learned Additional Sessions Judge/Special Judge CNSA, Sialkot in case FIR No.133/09 dated 19.03.2009, under section 9-C of the Control of Narcotic Substances Act 1997, Police Station Neka Pura Sialkot, whereby he was held guilty under section 9(c) of the Control of Narcotic Substances Act 1997 and was sentenced to undergo life imprisonment with fine of Rs.2,00,000/- and in case of default of payment of fine, he shall suffer further two years S.I. He was also extended benefit of section 382-B Cr .P.C.
2. Precisely , the prosecution story as narrated in FIR (Ex.P A/1) is that on 19.03.2009 at 03:30 p.m. Muhammad Ishfaq SI/ complainant (PW.6) alongwith Abdul Majeed ASI, Tariq Bashir 762/C, Ghafoor Ahmad 1977/C, Abdul Shakoor 333/C, Muhammad Waseem 1899/C was on patrolling on official vehicle being driven by Shakeel Akram 1775/C and was present at Main Gallah Mohallah Habib-Pura at Pasrur Road and upon spy information he apprehended the appellant who was carrying nylon bag. The nylon bag was searched and 19 packets were recovered from it, out of which 15 packets contained garda charas weighing 15 Kg, 02 packets contained charas weighing 02 Kg and 02 packets contained opium weighing 02 Kg. 15 packets of garda charas were mixed and a sample of 1500 grams was taken from it. Similarly , samples of 200 grams each were taken from charas and opium and were sealed into parcel. The case property as well as the samples of garda charas, charas and opium were taken into possession through recovery memo.
3. On indictment of the appellant, his trial commenced. He pleaded not guilty and claimed trial. The prosecution produced six witnesses and two CWs, namely , Zaheer Ahmad ASI (PW.1), Muhammad Adrees 1349/C (PW.2), Tariq Bashir 762/C (PW.3), Muhammad Ashraf 1237/HC (PW.4), Muhammad Arif SI (PW.5), Muhammad Ishfaq SI (PW.6), Muhammad Islam 331/HC (CW.1) Muhammad Akram 1167/C (CW.2) and also tendered report of Chemical Examiner EX.PD. Thereafter , the appellant was examined under section 342 Cr.P.C. whereby he professed innocence in the matter . He opted not to appear under section 340(2) Cr.P.C. however , he produced attested copy of petition under section 491 Cr.P.C. alongwith order as EX.DA, Ex.DA/1-8 alongwith copy of FIR No. 253/2002. After culmination of trial, the learned trial Court pronounced its verdict and awarded punishment to the appellant as mentioned in paragraph No.1 above, hence this appeal.
4. Learned counsel for appellant contends that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, he deserves clean acquittal. On the other hand, learned Additional Prosecutor General submits that sufficient evidence has been placed on record, through which the prosecution has successfully brought the guilt of the appellants to the hilt.
5. We have heard learned counsel for the parties and perused the record with their able assistance. It has been observed by us that appellant was apprehended by the police party at the spot when he was carrying a nylon bag which was searched by Muhammad Ishfaq SI/complainant (PW.6) and 19 packets were recovered from it. The complainant opened the recovered packets, out of which 15 packets contained garda charas, which were mixed by him, which weighed 15 Kg. It is further mentioned in FIR (Ex.P A/1) that out of the remaining 04 packets, 02 packets contained charas weighing 02 Kg and the other 02 contained 02 Kg opium. During trial, Muhammad Ishfaq SI/complainant (PW-6) as well as the attesting witness of recovery namely Tariq Bashir 762/C (PW.3) testified about the guilt of the appellant as stated in complaint as well as FIR (Ex.P A, Ex.PA/1) and there is nothing in their statements which could render them unrelia ble witnesses so as to extend any benefit to the appellant in respect of his conviction. All the prosecution witnesses have made consistent statements before the learned trial court pointing accusing fingers towards the appellant as the culprit of the offence. Furthermore, learned counsel for the appellant, during the course of arguments, also remained unable to point out any glaring contradiction which could create any doubt in the prosecution story so as to extend its benefit in favour of the appellant vis--vis to convince us to acquit him of the charge. The appellant has remained unable to point out background of animosity between him and police officials to justify his false implication in this case. Learned counsel for the appella nt also vehemently contended that there is violation of section 103 Cr.P.C. in this case as no private person was associate d during recovery proceedings. In this regard, we may observe here that sectio n 25 of the Control of Narcotic Substance Act, 1997 exclude the application of section 103 Cr.P.C. in such like cases. Even otherwise, it is well settled by now that the evidence of police officials is as worthy of credence as that of any other witness and conviction cannot be set aside on this score alone.
6. We have thrashed out the prosecu tion case from all angles and found that the judgment of the learned trial Court to the extent of conviction of Noor Ibrar appellant on the charge of offence under section 9(c) of the Control of Narcotic Substances Act 1997 does not call for any interference by this court. However , coming to the quantum of sentence of the appellant, in the light of Ameer Zeb's case (PLD 2012 SC 380), the quantum of sentence awarded to Noor Ibrar appellant appears to be unjustified. The Hon'ble Supreme Court of Pakistan while dealing with an identical proposition in the above referred case has held that "where any narcotic substance is allegedly recovered while contained in diffe rent 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."
7. Insofar as the case in hand is concerned, we learn from the contents of complaint (Ex.P A) and FIR (Ex.P A/1) and from the testimonies of Muhammad Ishfaq SI/complainant (PW-6) as well as attesting witness of recovery namely Tariq Bashir 762/C (PW-3) that that the recovered substance was in the shape of 19 packets (15 packets of garda charas, 2 packets of charas and 2 packets of opium). It is also evident from the record that 2 packets of charas consisted of many pieces, but the prosecution case is silent about the exact number of pieces of charas recovered from 2 packets. The testimonies of the prosecution witnesses also do not reveal that the complainant/SI (PW-6) segregated a sample from each of the packets/pieces, so as to render the same for chemical analysis rather he took only three samples, one from garda charas weighing 1500 grams, second from charas weighing 200 grams and third from opium weighing 200 grams. It was certainly not a wise act to do by him and it creates a pitfall in the prosecution case. This obscurity hovering over the prosecution case gives rise to a crucial question, which has not been viably answered by the prosecution during the course of trial. A little arithmetical calculation may help understand, though not with exactitude, yet close to being exact, the probable weight of each packet of the contra band seized. The recovered substance (alleged as garda charas) weighing 15 kg, if divided by 15, an average weight of each packet would be 01 Kg. Similarly , the weight of 02 packets (alleged as opium) weighing 02 Kg, if divided by 02, an average weight of each packet would be 01 Kg. In such situation of ambiguity , only one estimation can be made that one and a half packets of garda charas, one packet of opium and some pieces of charas (weighing 200 grams) had been used by the complainant (PW-6) to segregate samples for transmitting to the office of the Chemical Examiner for chemical analysis. With a small mental exercise again, it can safely be arrived at that 16 packets alongwith the remaining pieces (allegedly of charas not sent for chemical examination) out of total recovered stuff had gone unrepresented and it was not discernible even after full-fledged trial of the appellant that the whole recovered material fell within the mischief of 'a narcotic substance', as defined by the Control of Narcotic Substances Act 1997. Hence, besides one and half packet of garda chara s weighing 1500 grams, one packet of opium weighing 1000 grams and 200 grams charas, rest of the material recovered shall be rejected as mere junk. In an identical situation, the apex court has observed in Ameer Zeb' s case (supra), as under:- "In the case in hand 80 cakes/slabs contained in 20 packets kept on 22 baskets had allegedly been recovered from the appellant' s possession but according to the prosecution only a "small" and unspecific quantity was taken from every packet as a sample and then those samples were mixed up and made into one sample of 10 grams which was thereafter sent to the Chemical Examiner for analysis. If 80 cakes/slabs had statedly been recovered from the appellant' s possession and the total weight of the entire quantity was 20 kilograms then, in all likelihood, each cake/slab weighed about 250 grams. As only one sample of 10 grams had been sent to the Chemical Examiner for analysis and the report in that regard had been receive d in the positive, therefore, for safe administration of justice it may be concluded that the appellant was liable to be held responsible for having only one cake/slab of Charas weighing 250 grams in his possession which offence attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997."
The report of the Chemical Examiner (Ex.PD) reveals that three sealed packets received for chemical analysis, contained garda charas, charas and opium. By applying the formula as derived from the apex court' s judgment, it can easily be concluded for safe administration of justice that Noor Ibrar appellant could be held responsible for having only 1500 grams garda charas, 200 grams charas and 1000 grams opium.
8. For what has been discussed abov e, the conviction of Noor Ibrar appellant recorded for the offence under section 9(c) of the Control of Narcotic Substances Act 1997 is maintained and following the sentencing-policy , as enshrined in Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), his sentence of imprisonment for life is reduced to rigorous imprisonment for six years (four years, six months on account of recovery of 1500 grams garda charas + 200 grams charas and one year, eight months for the recovery of 1000 grams opium, total six years). Similarly , the sentence of fine amounting to Rs.2,00,000/- is also reduced to Rs.27,000/- (Rs.20,000/- on account of recovery of 1500 grams garda charas + 200 grams charas and Rs.7,000/- for the recovery of 100 grams opium, total Rs.27,000/-) or in default thereof to undergo nine months S.I. instead of two years S.I. The benefit of section 382-B Cr.P.C. is also extended to appellant. He is present in the court on bail, therefore, the matter is referred to the learned trial court who shall take necessary steps for the arrest of the appellant to be lodged in jail to serve out his remaining sentence and then his surety shall be discharged.
Criminal Appeal No.1 146 of 2010 stands dismissed in the above terms.