' ABDUL SAMI KHAN, J.---Fateh Muhammad alias Gogay Khan appellant, by filing the instant appeal, has challenged judgment dated 11.07.2012 passed by learned Additional Sessions Judge, Wazirabad, whereby he was held guilty under section 9(c) of the Control of Narcotic Substances Act 1997 and was sentenced to undergo imprisonment for life 'with fine of Rs,3,00,000/- or in default thereof to further undergo simple imprisonment for one year. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Precisely, the prosecution story as narrated in FIR (Ex.PA/1) is that Muhammad Akram SI (PW-3) along with Sheraz Ashraf constable (PW-4), Abdul Waheed constable (PW-5) and other police officials was present at Basti Qudratabad in search of bad elements where he received spy information that accused Fateh Muhammad alias Goga is selling charas at large scale, in Thathi Arrayian graveyard. At this, complainant sent Sheraz Ashraf constable as fake customer with an amount of Rs,6000/- consisting of six notes of thousand denomination each, signed by him for purchase of narcotics. The said fake customer purchased 01 Kg charas from the accused and produced before the 'complainant, who took the same into custody and also took sample of 10 grams from it. Later on the complainant alongwith Sheraz Ashraf constable (PW-4) and other police officials in plain clothes proceeded to the same place where a person was sitting while having blue nylon bag, who tried to slip away on seeing the police party and was apprehended at the spot. The said . Person disclosed his name as Fateh Muhammad alias Goga. A pistol .30 bore along with bullets were also recovered from the said person. On search of bag, charas, opium and heroin were recovered which were weighed and the weight of charas was 7 Kg, 2 Kg heroin and 2 Kg opium. Some of the charas was open and partial quantity was in packets. The open charas and packets were mixed and 10 grams sample each from heroin, opium and charas was separated. An electric scale, a chhuri and wattak amount of Rs,6000/- along with other wattack amount of Rs,1,95,000/- was taken into custody. The accused was arrested and the recoveries were made accordingly. The complainant reduced into writing complaint Ex.PA and despatched it to the Police Station for registration of formal FIR. On receipt thereof, Ashiq Hussain ASI/DO (PW-1) drafted formal FIR (Ex.PA/1) at 12:05 p.m., the same day. After completion of investigation, the police submitted challan against the accused/appellant before the trial court for his trial in accordance with law.
3. On indictment of the appellant, the trial commenced. He pleaded not guilty and claimed trial.
The prosecution produced eight witnesses, namely, Ashiq Hussain, AS! (PW-1), Muhammad Latif, Constable (PW-2), Muhammad Akram SI/complainant (PW-3), Sheraz Ashraf constable (PW-4), Abdul Waheed constable (PW-5), Muhammad Imran constable (PW-6), Abdul Razzaq SI/I.O. (PW- 7) and Tahir Mahmood head constable (PW-8). Thereafter, the appellant was examined under section 342, Cr.P.C. Whereby he proclaimed his innocence in the matter. He while answering question that why this case against him and why the PWs have deposed against him, stated as under:-- "I have been falsely involved in the instant case in this case by the police with mala fide intention.
My mother filed a Writ Petition No, 41Q5 of 2011 against police officials in Hon'ble Lahore High Court, Lahore, which came up for hearing before Mr. Justice Raoof Ahmad Sheikh, in City Police Office was directed to take legal action against the police officials. Furthermore at the time of my apprehension the police officials used filthy language with my Fiance (mangaiter) Fazana due to which a quarrel took place in which police officials gave beating to me and usurped the remaining amount of Rs,1,49,000/- the police implicated me in the instant case. The police officials also did not get me medically examined from hospital. Due to the above reasons and grudge the police has falsely involved me in the instant case. The PWs have deposed falsely against me being police officials. "
4. He did not opt to appear under section 340(2), Cr.P.C. But intended to adduce evidence in his defence and produced Mst. Kaneez Fatima, Mst. Farzana, Muhammad Saeed and Muhammad Irfan before the learned trial Court as DW-1, DW-2, DW-3 and DW-4 respectively.
5. After culmination of the trial, the learned trial Court pronounced its verdict and awarded punishment to the appellant as mentioned in paragraph No,1 above. Hence this appeal before us.
6. We have heard learned counsel for the parties and perused the record with their able assistance.
The main argument pressed into service by learned counsel for the appellant is that the charas allegedly recovered at the instance of the appellant consisted of many packets, but the Investigating Officer did not take separate sample from each one of them and segregated only 10 grams therefrom, to render it into a sealed parcel for transmission to the office of the Chemical Examiner. Learned counsel has further contended that Muhammad Akram SI/complainant (PW-3) and attesting witnesses of recoveries namely Sheraz Ashraf constable (PW-4), Abdul Waheed constable (PW-5) and Muhammad Imran constable (PW-6) have deposed in their statements that recovered charas consisted of many packets, some of which were open and some wrapped, but sample was not obtained from each of them, which meant that the prosecution had badly failed to prove its case against the appellant beyond 02 Kg charas. Lastly submits that the appellant's case is fit enough, to be given benefit of Ameer Zeb's case, reported as PLD 2012 SC 380. On the other hand, learned Deputy District Public Prosecutor has submitted that it was not legally required to take separate samples from each slab/cake/slice/ piece of the charas 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 08 Kg charas, 02 Kg heroin and 02 Kg opium and that the arguments advanced by learned counsel for the appellant are based on misconception of the law and facts.
7. The learned counsel for the appellant has not seriously pressed this appeal to the extent of conviction of the appellant on the charge of offence under section 9(c) of the Control of Narcotic Substances Act 1997, which otherwise has been successfully proved by the prosecution through the statements of Muhammad Akram SI/Complainant (PW-3) and attesting witnesses of recoveries effected from the appellant i.e, Sheraz Ashraf constable (PW-4), Abdul Waheed constable (PW-5) and Muhammad Imran constable (PW-6). So far as the question raised by 'learned counsel for the appellant in respect of quantum of sentence of the appellant is concerned, the same can easily be answered in the light of famous judgment of the Hon'ble Supreme Court of Pakistan in Ameer Zeb's case (PLD 2012 SC 380). While dealing with an identical proposition, the apex court referred to many 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 A 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. "
8. In this case, we have observed that 01 Kg of charas was purchased by Sheraz Ashraf constable (PW-4) from the appellant after becoming fake customer and a separate sample of 10 grams was taken therefrom. Afterwards at the time of apprehension of the appellant tainted amount of Rs,6000/- along with other watak money Rs,1,95,000/- was also recovered from him. The appellant also led to the recovery of 02 Kg heroin and 02 Kg opium and separate samples of 10 grams each were taken from these narcotic substances. So far as 07 Kg of charas allegedly recovered from the appellant at the, time of his arrest is concerned, we learn from the contents of FIR (Ex.PA/1) and from the testimonies of Muhammad Akram SI/eomplainant (PW-3) as well as attesting witnesses of recoveries namely Sheraz Ashraf constable (PW-4), Abdul Waheed constable (PW-5) and Muhammad Imran constable (PW-6) that the same was not in one packet, but it consisted of many packets, some of which were open and some wrapped. The testimonies of the prosecution witnesses do not reveal that Muhammad Akram complainant/SI (PW-3) segregated a sample from each packet, rather he has categorically deposed that he mixed open as well as wrapped charas of 07 Kg and then took sample of 10 grams from the recovered bulk, so as to render it into one packet for chemical analysis. It was certainly not a wise act to do by Muhammad Akram complainant/SI (PW-3) and in such situation of ambiguity, the only estimation which can be made that one packet of charas had been used by the complainant to segregate sample of 10 grams for transmitting it to the office of Chemical Examiner for chemical analysis. It can therefore, safely be held that the recovery, of only 02 Kg charas (01 Kg purchased from the appellant by Shehzad Ashraf constable [PW-41 and 01 Kg recovered from him at the time of his arrest), 02 Kg heroin and 02 Kg opium from the appellant is proved against him and it was not discernible even after full- fledged trial of the appellant that the remaining substance of 06 Kg fell within the mischief of 'a narcotic substance', as defined by the Control of Narcotic Substances Act, 1997. Hence, 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 B 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 received 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.PG) reveals that four sealed packets received for chemical analysis', contained charas, heroin 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 Fateh Muhammad alias Gogay Khan appellant could be held .Responsible for having only 02 Kg charas, 02 Kg heroin and 02 Kg opium.
10. (sic). For what has been discussed above, the conviction of Fateh Muhammad alias Gogay Khan 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 fourteen years and six months (six years and .6 months on account of recovery of 02 Kg charas, four years for the recovery of 02 Kg opium and six years for the recovery of' 02 Kg heroin, total fourteen years and six months), with payment of fine of Rs,58,000/- (Rs,20,000/- on account of recovery of 02 Kg chafes, Rs,8,000/- for the recovery of 02-Kg opium and Rs,30,000/- for the of 02 Kg heroin, total Rs,58,000/-) or in default thereof to undergo simple imprisonment for fifteen months and fifteen days. The benefit of section 382-B, Cr.P.C. Shall, however, be 'extended to him. Criminal Appeal No,1329 of 2012 stands dismissed accordingly. .