' Muhammad Qasim Khan, J.--Amir Khan, Taj Bahadar, Namatullah and Abdullah Jan accused/appellants faced trial in case FW, No, 12/2009 dated 04.07.2009 under Section 9(c)/15 of the Control of Narcotic Substances Act, 1997 registered at Police Station ANF, Multan and on conclusion of the trial vide judgment dated 25.02.2010 the learned trial Court/Additional Sessions Judge, Multan, all of the four accused/appellants were acquitted of the charge under Section 15 of Control of Narcotic Substances Act, 1997. However, on their conviction under Section 9-C of the said Act, Amir Khan accused/appellant was sentenced to imprisonment for life and fine of Rs, 200,000/-, in default thereof to further undergo simple imprisonment for one year and six months, whereas, accused Abdullah Jan, Namatullah and Taj Bahadar were also sentenced to imprisonment for life each with fine of Rs, 100000/- each, in case of default in payment of fine each one to suffer simple imprisonment for one year. Benefit of Section 382-B, Cr.P.C. Was extended.
2. The learned counsel appearing on behalf of the accused/appellants/convicts (Amir Khan, Taj Bahadar, Namatullah Khan and Abdullah Jan) initially addressed arguments on merits of the case, but considering it be a case of promptly lodged FIR, accused were arrested red handed, the contraband recovered from them was sent to office of Chemical Examiner and reports were received in the positive, the veracity whereof remained unquestionable, the prosecution case as set-up in the FIR was fully established during trial by producing prosecution witnesses, who all remained consistent on material aspects, the learned counsel representing the accused/ appellants turned to their alternate prayer for reconsideration of quantum of sentence and argued that prosecution witnesses materially contradict each other on the aspect of recovery and preparation of samples. Further argued that although according to the prosecution case accused were found in a vehicle and on checking 12 packets of charas weighing 1200 grams each were recovered from the plastic TORA lying near the feet of Abdullah Jan, ten grams charas from each packet separated for chemical examiner analysis; twelve packets of charas weighing 1100 gram were recovered from the TORA lying near accused Namatullah, ten gram charas from each packet was separated for chemical examiner; nine packets of opium weighing 1200 grams were recovered from the TORA lying near Taj Bahadar, ten grains each was separated from each of the packet for chemical analysis. Amir Khan accused/appellant got recovered 22 packets of charas from secret cavity at the back of the driving seat. He also got recovered 36 packets of charas and 10 packets of opium, as such total 69.600 kg charas and 12.k.g. Opium was recovered from Amir Kben accused/appellant. The learned counsel further argued that Naeem Khan SubInspector/Investigating Officer PW-2 while reiterating the prosecution case deposed before the Court that he had collected samples from each of the recovered packet and sent for chemical examiner, but joint analysis reports were received from the Chemical Examiner, but practice is against the spirit of case "Ameer Zeb versus The State" (PLD 2012 SC 380). The learned counsel therefore, argued that each of joint report at the most can be considered to the extent of one sample alone, as such, the quantum of sentence needs to be reconsidered. In support of their arguments, learned counsel referred the case "Khuda Bakhsh versus The State" (2015 SCMR '735) to contend that quantum of sentence in narcotic substance may depend upon the quantity of the recovered substance and the discretion lies With the Court to award any sentence which is deemed fit in the facts and circumstances of the case. The learned counsel therefore, argued that when the prosecution is not clear on this aspect, the reports of Chemical Examiner can be considered only to the extent of one sample collected from each of the accused, therefore, the sentence of each of the accused/appellant, may be reduced accordingly.
3. The learned counsel representing ANF on the other hand has opposed the above submissions by contending that already a lenient view has been taken with regard to the quantum of sentence qua the accused/appellants, whereas, the prosecution had successfully proved its case with regard to recovery of narcotic substance, collection of samples from each of the recovered packet, therefore, join submission of report by the Chemical Examiner at the most may be an irregularity and is not fatal to the prosecution case and it will not be sufficient to reconsider the whole of the sentence.
4. We have considered the respective arguments of learned counsel for the parties and perused the available record with their assistance.
5. It has been observed that according to the prosecution case accused were found in a vehicle and on checking 12 packets of charas weighing 1200 grams each were recovered from the plastic TORA lying near the feet of Abdullah Jan, ten grams charas from each packet for separated for chemical examiner analysis; twelve packets of charas weighing 1100 gram were recovered from the TORA lying near accused Namatullah, ten gram charas from each packet was separated for chemical examiner; nine packets of opium weighing 1200 grams were recovered from the TORA lying near Taj Bahadar, ten grams each was separated from each of the packet for chemical analysis. Amir Khan accused/appellant got recovered 22 packets of charas from secrete cavity at the back of the driving seat. He also got recovered 36 packets of charas and 10 packets of opium, as such total 69.600 kg charas and 12.k.g. Opium was recovered from Amir Khan accused/appellant. Naeem Khan Sub-Inspector/Investigating Officer PW-2 while reiterating the, prosecution case deposed before the Court that he had collected samples from each of the recovered packet and sent for chemical examiner, but relating to recovery of twelve packets of charas from Abdullah Jan just one report of Chemical Examiner Ex.PM has been received. Similarly, the report of Chemical Examiner Ex.PN relates to whole of recovery of twslve packets of charas from Namatullah. Again a joint report of Chemical Examiner Ex.PQ relating to nine sealed parcels allegedly recovered from Taj Bahadar has been received and further this report in the result column does not disclose whole of the samples. Regarding receipt of fifty eight packets of charas recovered from Amir Khan accused/appellant one report Ex.P0 and for ten sealed packets of opium recovered from same Amir Khan accused/appellant one report Ex.PR has been received.
6. Faced with above situation, we would like to refer the judgment "Ameer Zeb versus State" (PLD 2012 SC 380), wherein the apex Court has laid down a definite criterion, as under: "For the purposes of clarity and removal of confusion it is declared 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."
' From the analogy drawn by the above-reproduced paragraph of the judgment of Hon'ble Supreme Court of Pakistan, it is obvious that prosecution was required to have taken samples from each of the recovered packets, thereafter, for each of the sample a separate parcel must have been prepared and sent for chemical examiner and then the report of the Chemical Examiner must also have carried independent result of each of the parcel received in the said office. With this backdrop, although from the prosecution evidence it appears that separate parcels were made and sent for chemical examiner, but joint reports of the Chemical Examiner have been received regarding each of the accused/appellant. Thus, joint reports of Chemical Examiner Ex.PM, Ex.PN, Ex.PO, Ex.PQ and Ex.PR do not represent the whole quantity allegedly recovered from the possession of the accused/appellants and it can safely be said that at the most prosecution succeeded in proving its case only to the extent of samples of the contraband substance, regarding which the result has been received and furthermore, one report of the Chemical Examiner would only represent not more then just one sample. Meaning thereby, the Chemical Examiner report Ex.PM will carry the effect that only one sample of charas collected from the contraband recovered from Abdullah Jan accused/appellant was received in the Chemical Examiner office and said one sample was reported to contain charas. Similarly, Ex.PN would represent on sample of charas collected from the contraband recovered from Namatullah, Ex.P0 will stand for one sample collected from the charas recovered from Amir Khan, Ex.PQ will represent one sample prepared from the opinion recovered from Taj Bahadar and Ex.PR will stand for one sample prepared from the opium recovered from Amir Khan accused/appellant. After holding as above, Abdullah Jan, Namatullah and Taj Bahadar accused/ appellants can be sentenced to the extent of one sample each, whereas, Amir Khan accused/appellant is to be sentenced to the extent of two samples (one regarding charas and the second with regard to opium). Now, coming to the question of quantum of their sentence, we have the benefit of going through a judgment of Hon'ble Supreme Court of Pakistan in the case "Khuda Bakhsh versus The State" (2015 SCMR 735), wherein, the apex Court has held that "Court had the discretion to award any sentence, which it deemed fit in the facts and circumstances of a certain case."
7. In these circumstances the conviction of the accused/ appellants under Section 9(c) of the Control of Narcotic Substance Act, 1997 is sustained, however, while evaluating the quantum of sentence, in the light of the guidelines settled by the Hon'ble Supreme Court of Pakistan in the case "Ameer Zeb versus The State" (PLD 2012 Supreme Court 380) as well as "Khuda Bakhsh versus The State" (2015 SCMR 735), in the peculiar facts and circumstances of this case where the accused/appellants are tagged with this case since there arrest in the year 2009, according to the report of Superintendent Central Jail, Haripur dated 23.10.2013, at the time of report Amir Khan and Taj Bahadar accused/appellants had served out twelve years, seven months and eleven days of imprisonment, as such, by now both these accused/appellant have undergone a substantial period of about fifteen years confinement, whereas, according to the report of Superintendent, New Central Jail, Multan dated 24.06.2010 at the time of report, Namatullah and Abdullah Jan had served out seven years, eight months and eleven days each, thus by lapse of time till now these two accused/appellants have also undergone a substantial period of their entire sentence of imprisonment, which is considered sufficient to meet the ends of justice. The amount of fine of Rs, 100,000/- qua Abdullah Jan, Namatullah and Taj Bahadar and fine of Rs, 200,000/-qua Amir Khan, as imposed by the learned trial and the period of imprisonment in default whereof, shall remain intact. The case property shall be disposed of in accordance with law and the record of the learned trial Court be sent back immediately. Benefit of Section 382-B, Cr.P,C. Is extended.
8. With above modification in the quantum of sentence, this criminal appeal is dismissed.