SYED MUHAMMAD FAROOQ SHAH, J.---Appellants were tried in case FIR No, 537/2009, registered at P.S. Site-A, Karachi on 21.06.2009, in respect of offence under Section 6/9(c), CNS Act, 1997 and vide judgment dated 29.08.2011, handed down by learned Judge, Special Court-II, CNS; Karachi, they were convicted and sentenced to suffer life imprisonment and fine of Rs, 1,000,000/- (Rupees One Million Only) each or in-default in payment thereof to undergo R.I. For 4 years more. However, benefit of Section 382-B Cr.P.C. Was extended to them. Being aggrieved with the impugned judgment,, the appellants have challenged their conviction and sentence before this Court by filing captioned appeal and have prayed for their acquittal..
2. We have considered the arguments advanced by leaned Counsel for the appellants and learned Prosecutor appeared for the State and have also carefully gone through the record of the case with their able assistance.
3. Prosecution story as narrated in the FIR and in memo of arrest and recovery, in nutshell is that during patrolling, SHO Bakht Jamal received spy information that one Suzuki bearing registration No, CJ-9727 'was bringing fine quality of charas. On such information, he started snap checking with his staff and alighted the said Suzuki, which was stopped and on its front seat, appellants Haji Muhammad Iqbal and Farooq 'Sheikh were found sitting with driver namely appellant Muhammad Ishaque. From search of said vehicle, ten gunny bags (Borries) of charas weighing 289 Kgs were recovered, hence the appellants were arrested and recovery was also effected under proper memo of arrest and recovery. There were 194 packets of Fermipan' and 95 packets of Folgers' charas and from each packet 10/10 grams charas had been separated for chemical examination and remaining charas was sealed in the same packets. The appellants were taken at Police Station along with recovered narcotics and vehicle, where FIR was lodged. Perusal of the record shows that the samples weighing 2.890 kgs from recovered charas were sent for chemical examination. The report submitted by chemical examiner to the Government of Sindh, Karachi, exhibited as 8/D reveals that one sealed parcel of white cloth contained 2.890 kgs of charas in small pieces, each piece weighed 10 grams were tested and the result was in positive, beside all the samples were consumed in analysis. On completion of usual investigation, appellants were charge sheeted by the concerned police, which was accepted on 09.07.2009.
4. From perusal of record, it appears that according to the prosecution, the appellants were arrested possessing ten gunny bags, containing charas and total weight of charas was 289 kgs.
Consolidated sample of 2890 grams had been separated and the consolidated sample was then tested through chemical examiner. Learned Counsel for the appellants placed before us reported citations in photostat. It is an admitted position that in case in hand only one consolidated sample of. 2890 grams had been separated and tested. Reliance is being placed on the judgments of apex Court in which the sentence was reduced to one already undergone, by maintaining the conviction, therefore, learned Counsel for the appellants have prayed for acquittal of the appellants or reduction of their sentence in the same line, as in the cited rulings also the appellants had served major portion of sentence.
5. Conversely, learned Prosecutor confirmed that the appellants are not previously convicted in any case, however, he supported the impugned judgment and submitted that the appellants have served out major portion of sentence i.e, more than 16 years.
6. During arguments the judgment delivered in the case of Amir Zeb v. The State (PLD 2012 SC 380) has been iterated by the learned Counsel for the appellants and submitted that the said judgment was later on followed by the Superior Courts. It shall be advantageous to reproduce herein below, the penultimate paragraph of the said judgment:-- "In the case in hand 80 cakes/slabs contained in 20 packets kept in 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 j0 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 this 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 Narcotics Substances Act, 1997. In this view of the matter, this appeal is partly allowed, the conviction of the appellant recorded and upheld by the learned Courts below for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 is converted into one under Section 9(b) of the said Act and applying the sentencing policy of the Lahore High Court, Lahore laid down in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), the appellant is sentenced to rigorous imprisonment for one year and three months and to pay a fine of R0,000/- (Rupees Nine Thousand only) or in default of payment thereof to undergo simple imprisonment for three months and fifteen days. The benefit under Section 382-B, Cr. P. C. Shall be extended to him. This appeal is disposed of in these terms".
7. In the case of Fareedullah v. The State 2013 SCM R 302, from 24 Kgs of recovered charas in shape of 20 littars, one consolidated sample of recovery was taken, therefore, the recovery of contraband narcotics was considered 1.2 Kgs. In this reported case Hon'ble apex Court, by maintaining the conviction, reduced the sentence into 4 years and 6 months and fine of Rs, 20,000/- each with benefit of Section 382-B Cr.P.C.
8. In the ease of Shoukat Ali @ Billa reported as 2015 SCM R 308, the accused was allegedly found in possession of 20 bags containing narcotics, each bag contained 20 packets and each packet weighed one Kg; one gram narcotic was separated from each packet and 10 sealed parcel of 20 grams each were prepared as sample for chemical examination, hence keeping in view of the judgment of Amir Zeb v. The State, recovery was considered to be 10 kgs as 10 packets of 20/20 grams were prepared as sample, hence the death sentence awarded to accused by the trial Court was converted into already undergone i.e, 14 years in jail, which include the sentence awarded to him in case of nonpayment of fine with benefit of Section 382-B, Cr.P.C.
9. In Nasreen Bibi's case (2014 SCM R 1603), the sentence of imprisonment of life awarded to her by the trial Court for possessing 40 Kgs. Narcotics (Poast) upheld by the Lahore High Court, was reduced by the apex Court to that already undergone by her, mainly on the ground that only one consolidated sample was taken from four packets, thus one bag could be said to have contained 10 kgs of narcotics, which could be considered against the accused for the purpose of her conviction and sentence. In this judgment, the case of Amir Zeb was also followed.
10. The evidence led by the prosecution as aforesaid is in line with the case as highlighted above with no material variation or lapses; the memo of recovery and the FIR aforesaid stand fully corroborated and resultantly proved to the satisfaction of the trial Court; the defence depended upon mere denial of the charge and case as well as evidence; no defence evidence at all has been adduced, the initial burden resting on the prosecution stand discharged on its part and the appellants/accused have failed to rebut the same as provided under Section 29 of CNS Act, 1997 and to, lead defence evidence establishing their innocence in the matter. The defence Counsel while placing reliance on the afore-cited rulings prayed for mercy in the matter of punishment on the ground that they are first offender and bread earner members of their families may be dealt with lenient view, more particularly, they have served major portion of their sentence.
11. Since the appellant have already served major portion of sentence i.e, more than 16 years as per jail roll, dated 09.12.2014, so in our view, placing reliance on the afore-cited rulings of Hon'ble Supreme Court, they may be allowed to lead their life as responsible citizens, to support their families for their welfare and wellbeing. In view of aforesaid reasons/discussions, while maintaining the conviction, we reduce the sentence to the appellants to one already undergone. Let the appellants be released forthwith, if not required in any case.
12. Captioned appeals are decided in the manner indicted above.