' Muhammad Qasim Khan, J.--Vide judgment dated 17.05.2010, learned Additional Sessions Judge, Multan, in case FIR No, 24 of 2007, registered at Police Station ANF, Multan, convicted Sajjad Hussain @ Bhola appellant for offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life with fine of Rs, 1,00,000/- and in default of payment of fine, he was to further undergo for six months; however, benefit of Section 382-B, Cr.P.C. Was awarded to the appellant.
2. Brief facts of the case, as per complaint Ex.PH, are that Farooq Ahmad Sheikh, Inspector/S.H.O.
Police Station ANF, Multan, on spy information constituted a raiding party and apprehended Sajjad Hussain @ Bhola; recovered eight packets of charas P-1 from his possession. Each packet of charas weighed 1200 gm, so by this way total 9600 kg charas was recovered from the accused. 10 gm charas from each packet was separated for chemical analysis. The accused further led to the recovery of 17 packets of opium P-2 from Almirah.Of his house. Each of the recovered packets of opium weighed 1200 gm; thus, total 20,4.00 kg opium was recovered and 10 gm from each packet was separated for sending of the same to the chemical examiner. Thereafter both the contrabands P-1 and P-2 were taken into possession vide recovery memo. Ex.PA and Ex.PB.
3. After completion of investigation, the accused was sent up to face trial, where he denied the allegation and claimed trial.
4. During trial, to prove its case, the prosecution produced fotir witnesses. Muhammad Khalid HC appeared as PW-1. He stated about Shabbir Asad Moharar handed over to him 8 sample parcels of charas and 17 sample parcels of opium fOr handing over the same to the office of chemical examiner. Sajjad Haider, constable appeared as PW-2 he stated about the proceedings of the raid.
Farooq Ahmad Sheikh, Inspector/ S.H.O. Appeared as PW-3 stated about the arrest of the accused; recovery of charas and opium and investigation of the case. PW-4 Shabbir Asad, Moharar stated about handing over, the scaled parcels of charas and opiam to Muhammad Khalid, HC/PW-1. The prosecution closed its case after producing reports of chemical examiner Ex.PJ and Ex.PK.
5. After completion of prosecution evidence, statement of the accused was recorded under Section 342, Cr.P.C. Wherein he pleaded his false implication. He did not appear in his own defence under Section 340(2), Cr.P.C. And after producing Ex.DA, DA/1 and DH closed its case.
6. Learned counsel for the appellant contends that case of the prosecution is replete with contradictions; though the samples were taken separately but the same were sent jointly and a joint result was provided by the chemical examiner, which is nullity in the eyes of law; thus, on this score alone conviction is not sustainable.
7. On the other hand, learned Deputy Prosecutor General has fully supported the judgment passed by learned trial Court by stating that the PWs are consistent on all the material aspects of the case; and it is not necessary to prepare separate reports for each sample, as law requires that samples must be taken from each packet and joint report of all sample by the chemical examiner is sufficient proof to establish the guilt and whole recovered articles were contraband substance, thus, instant appeal is liable to be dismissed.
8. I have heard learned counsel for the parties and gone through the available record with their able assistance.
9. From the perusal of statements of prosecution witnesses, who conducted the raid and also marginal witnesses of the recovery memos, it appears that there are contradictions in the statements of PWs, as Sajjad Haider HC/PW-2 in his examination-in-chief stated that "on checking of the said plastic TORA, 08 packets of Charas were recovered from his possession. On , weighing, each packet was containing 1200 grams Charas. The I.O. Weighed the Charas which became 9,600 k.g. In toto. The I.O. Separated 10 grams charas from each packet and made eight sample parcels and one parcel of remaining bulks (sic) contraband substance i.e, P-1 and P-2 could not be proved with certainty.
10. At the most, the prosecution case remains to the extent of samples of contraband substance, which were sent to the office of chemical examiner for analysis. As per prosecution case itself, in total twenty five packets (eight containing charas and seventeen alleged to contain opium) were recovered; from each of the recovered packets of contrabands, 10 grams each was taken as sample and allegedly separate sample packets were prepared for chemical analysis but only two joint reports of all the packets of charas as well as opium were received from the chemical examiner as Ex.PJ and Ex.PK, respectively, whereas, from the analogy drawn from the judgment of Hon'ble Supreme Court of Pakistan in the case of "Ameer Zee versus The State" (PLD 2012 SC 380), the prosecution was required to have taken samples from each of the recovered packets, thereafter, for each of the samples a separate report must be prepared by the chemical examiner.
With this backdrop, joint result/report of the Chemical Examiner does not represent the whole quantity allegedly recovered narcotics from the possession of appellant and it can safely be said that at the most prosecution succeeds in proving its case only to the extent of two slabs of contraband substance, regarding which the result has been received i.e, two analysis reports Ex.PJ and Ex.PK. Consequently, while placing reliance upon PLD 2012 SC 380 (Ameer Zeb vs. The State), we observe that it was the duty of prosecution to prove recovery of each packet of charas and opium through separate packets and separate results of chemical examiner. Although in the report of chemical examiner eight packets of charas and seventeen packets of opium are mentioned but a joint report of each narcotic substance i.e, Ex.PJ and Ex.PK respectively has been issued by the chemical examiner, which is against the requirements of law, whereas the law requires separate reports for stparate packet of samples, which were to be exhibited during trial; thus, at this stage it can be observed that prosecution has succeeded to establish its case against the appellant only to the extent of one slab of charas of 1200 grams and one slab of opium of 1200 grams. In such a situation, to decide the quantum of sentence of the appellant for offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, for keeping 1200 grams of charas and 1200 grams of opium by the appellant judgment passed by this Court reported as PLD 2009 Lahore 362 (Ghulam Murtaza and another vs. The State) must be considered, wherein for an offence under Section 9(c) of the Act guidelines have been provided that for keeping charas more than 1 kilogram and up to 2 kilograms the sentence will be 4 years and 6 months RI, and fine of Rs, 20 000/- or in default S.I. For 5 months; similarly for keeping opium more than 1 kilogram and up to 2 kilograms, the sentence will be 4 years R.I and fine Rs, 8,000/- or in default S.I, for 4 months and 15 days. It appears that appellant has already served out his sentence more than the above quoted guidelines because order dated 27-10-2011, whereby sentence of appellant was suspended, clearly shows that till that time the appellant had served out more than 11 years in jail which was more than half portion of his sentence; and thus, on that score sentence of the appellant was suspended
11. There is another mitigating circumstance in favour of the appellant, as learned Law Officer has placed on file certain documents regarding medical treatment of the appellant, who has undergone the heart surgery. Appellant is present in Court today on a wheelchair; he cannot walk freely and his health condition appears to be very poor.
12. As a result of above discussion, while placing reliance on 2015 SCM R 735 (Khuda Bakhsh vs. The State) and PLD 2009 Lahore 362 (Ghulam Murtaza and another vs. The State), considering that the period of sentence already undergone by the appellant will sufficiently meet the ends of justice, we accordingly alter the sentence of appellant to the period already undergone by him. However, sentences of fine and in its default are maintained.
13. With the above modification in the conviction and sentence this appeal is dismissed.