Nisar Hussain Khan, J.--Appellants Rangeen and Sana Muhammad have questioned the judgment of learned Judge Special Court-V, Nowshera, dated 8.10.2013 whereby they have boon convicted under Section 9(c) CNSA, and sentenced to undergo imprisonment for life and also to pay fine of Rs, one lac each or in default thereof, to undergo six months S.I. Each, with benefit of Section 382-B, Cr.P.C.
2. Facts of the case are that on 5.3.2013, the High-ups of Customs Intelligence, Peshawar, on receipt of spy information about trafficking of huge quantity of narcotics from KPK to Punjab, constituted a team of Customs staff headed by Ali Akbar, Superintendent Customs Intelligence, Peshawar, which cordoned off Motor Way, near Rashakai Interchange. At 10.00 hours, a, Truck coming from Mardan side was signalled to stop but driver of the truck instead of stopping the vehicle, tried to escape and accelerated its speed. The Customs staff after some chase, succeeded in stopping the truck.
The driver of the truck disclosed his name as Rangeen while its cleaner as Sane Muhammad. To avoid any mishap, the truck and driver etc, were brought to the Customs Office Peshawar where it was searched and from its Tool Box, 14 packets of heroin powder and 20 packets of opium, wrapped in separate, packets, were recovered. All the packets of heroin and opium when weighed, came to one Kg. Each, as such the total recovered contraband was 14 Kgs. Heroin and 10 Kg opium.
From each packet, small quantity of heroin and opium was separated and from the whole separated lot, of contraband, two samples, i,e, one sample of 70 grams containing heroin and another sample of 100 grams of opium, were prepared and sealed for chemical analysis. After recovery of contraband, both the aforenamed accused were arrested and the narcotics alongwith truck bearing Registration C-3176 Mardan with its Registration copy were taken into possession.
Accordingly, a case under Section 9(e) CNSA was registered against them at Police Station Customs Investigation and Prosecution Branch, Customs House, Peshawar, vide FIR No, 50/2013 dated 5.3.2013.
3. After arrest of the accused named above and on completion of usual investigation, they were forwarded to the learned Additional Sessions Judge-V/Judge Special Court-V, Nowshera, for trial.
The learned trial Court after scanning evidence and hearing the arguments of the learned counsel for the parties; found both the accused guilty of the commission of offence and recorded conviction and sentence vide impugned judgment referred to above. Hence the instant criminal appeal.
4. Learned counsel for the appellants argued that in view of the principle laid down in Ameer Zeb Versus The State (PLD 2012 Supreme Court - 380 ), appellants can only be saddled with the liability of the contraband to the extent of the samples sent to the Laboratory for chemical analysis. The Forensic Science Laboratory received two samples. The samples, allegedly, taken from all the packets, were mixed up in one parcel of heroin and the other one of opium. It is not certain that all the packets wore of contraband or otherwise, benefit of which is to be extended to appellants.
Hence the conviction and sentence awarded to the appellants is in violation of the ratio of the law declared by the august Supreme Court in the report.
5. Learned Standing Counsel for the Customs/respondent argued that heavy quantity of narcotics was recovered from the appellants, so they have rightly been convicted and sentenced and as such they are not entitled to any concession.
6. We have scanned the record with the assistance of learned counsel for the parties and have also considered their submissions advanced at the bar.
7. According to the FIR, 14 packets of heroin and 20 packets of chars were recovered from the tool box lying on the roof top of the truck driven by appellant Rangeen. Each packet of heroin and opium when weighed came to one Kg, meaning thereby that 14 Kg heroin and 20 Kg opium was recovered. The record further reveals that small quantity of heroin and opium was separated from each packet of narcotics for the purpose of chemical analysis. The entire stuff Su extracted from each packet came to 70 grams heroin and 100 grams opium which were mixed-up and separately sealed in respective parcels and in this way two samples, one of heroin and other of opium were sent to FSL for chemical analysis. The FSL report Ex.PW.2/8 also speaks about receipt of two parcels of 70 grams and 100 grams of heroin and opium respectively which corroborates the prosecution story that two samples were sent to FSL for analysis.
8. Facts of the case in hand are identical on all the fours to the case of Ameer Zeb us. The State (PLD 2012 Supreme Court - 380), wherein 20 packets of chars were allegedly recovered from the possession of the accused, each packet containing 4 slabs of chars total weight of which was 20 Kg. Out of that whole recovered contraband, small quantity from each slab was taken and then put in consolidated form in one packet weighing 10 grams for chemical examination. The chemical examiner reported that it was chars. The accused was convicted and sentenced to life imprisonment with fine of Rs, One lac under Section 9(c) CNSA which was maintained by the Honourable Islamabad High Court in appeal. After scanning the case law on the subject, the august Supreme Court once for all settled that since the samples of each packet have not been taken and sent separately of each slab. Rather samples taken from all the slabs were mixed and thereafter 10 grams were sent to the chemical analysis. So by applying the formula of averages and proportionality it may be deduced that the sample related to only 250 grams for which the appellant may be held responsible. With these findings, appeal was partially allowed and sentence was reduced proportionate to the recovery of contraband so proved.
9. In the instant case, though the FIR narrates about recovery of 14 Kg of heroin consisting of 14 packets and 20 Kg of opium consisting of 20 packets, instead of separating and preparing 14 samples of heroin and 20 samples of opium after its extraction from each packet, for FSL so that each sample should represent each packet, only two collective samples, one of 70 grams and another of 100 grams of heroin and opium respectively were sent to FSL, report whereof is positive.
Such samples sent to the FSL did not represent the entire stuff allegedly recovered but only relates to the extent of one packet of heroin powder weighing one Kg. And one packet of opium weighing one Kg. Investigating agency was legally obliged to separately obtain sample of each packet for sending the same to FSL to secure the conviction. It is settled principle of law that for safe administration of C criminal justice, prosecution must prove its case beyond any dent of doubt, upto the hilt. In the given back drop, it may be assumed that positive FSL report may relate to the sample taken from one packet of each category of narcotics. Thus in the circumstances, appellants can only be saddled with the liability of the recovery of one Kg. Heroin and one kg.
Opium, about which the FSL report is positive.
10. This by partially allowing this appeal, the conviction of the appellants is maintained while sentence of imprisonment awarded by the trial Court being harsh and not proportionate to the recovery of substance so proved to be contraband, in the light of above case law, is reduced from life imprisonment to four years R.I. Each; with fine of Rs,50000/- each or in default whereof, to undergo six months SI The benefit of Section 382-B already extended shall remain intact.