Yahya Afridi, J.--This Criminal Appeal is directed against the judgment and order dated 18.12.2013, passed by learned Additional Sessions Judge-II/Judge, Special Court, Nowshera, whereby Imran Qadri appellant has been convicted under Section 9(c) of Control of Narcotic Substances Act, 1997, ("CNSA"), and sentenced to life imprisonment with a fine of Rs. 200,000/- (two lac), or in default of payment of fine to suffer further six months imprisonment, in case FIR No. 56 dated 26.3.2013, registered at Police Station, Customs Investigation and Prosecution Branch, Customs House, Peshawar, ("FIR"). Benefit under Section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C") has not been extended to the convict-appellant.
2. Brief and essential facts of the case according to the FIR are that, on 26.3.2013 Khawaja Muhammad Iqbal, Senior Intilligence Officer, Peshawar, complainant had prior information regarding smuggling of rharas' through Jeep bearing Registration No. M-7971 /Peshawar Mitsubishi Pajero ("Vehicle") from Punjab via Motorway; that Deputy Director Aftabullah Shah, constituted a raided party, which laid a picket at the place of occurrence and at about 2200 hours the Vehicle coming from Punjab side, was stopped, the driver disclosed his name to be Imran Qadri son of Zaheer Qadri; that the Vehicle alongwith the accused was brought to the office of Custom Intelligence and Investigation FBR Peshawar, the search of secret cavities of the Vehicle led to the recovery of 10.800 Kgs (gross) of 'Charm' found in packets; that from each packet of the recovered 'Charm', a total of' 90 grams were separated as a single parcel and sent for analysis by Forensic Science Laboratory, while the remaining 'Charm' was sealed in a separate bag, vide recovery memo. Ex,PW.5/1.
3.To prove its case, the prosecution produced as many as six witnesses; Khawaja Muhammad Iqbal, Senior Intelligence Officer, (PW.1), Ikramullah Khan, Intelligence Officer, (PW,2), Sher Dad Khan Wazir, Inspector Customs (PW.3), Iqbal Ahmad, Inspector Custom (PW.4), Faiz Muhammad, Intelligence Officer (PW.5) and Nasir Ali, Driver/Sepoy (PW,6), 4.To further prove its case, the prosecution also Exhibited Murasila Ex.PA, recovery memo, as Ex,PW,5/1, Inventory memo, of the Vehicle as Ex.PW.5/2, Search memo, as Ex.PW,/3, Parcel of sample as Ex.PW.5/4, Application for FSL as Ex.PW.5/5, FSL report of 'Charm' as Ex.PW.2/1, FSL report of Vehicle as Ex.PW.2/2, Copy of Stock Register as Ex.PW.4/1 and DA Register as Ex.PW,3/1.
5.Valuable arguments of the learned counsel for the parties heard and the record perused with their able assistance.
8. One of the main striking features provided in CNSA, which is different from the general principles of safe administration of criminal justice is that the 'onus' to prove the guilt of an accused has not been placed entirely on the prosecution but on the accused to prove his innocence. In this regard, we note Section 29 of CNSA, which provides: Presumption from possession of illicit Articles.
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused had committed an offence under this Act in respect of:
(a) Any narcotics drugs, psychotropic substance or controlled substance In reading the aforementioned provision of 'CNSA, it is clear that the legislature has cast a presumption in favour of the prosecution, which has to be rebutted by the accused to prove his innocence. The judicial consensus, which has developed in our jurisdiction over a period of time, has clearly held that prosecution cannot he totally absolved of its obligations and duty of initially establishing a 'prima facie' case of recovery of contraband from the conscious possession of the accused and only after the said initial burden is discharged by the prosecution that the 'onus' would shifts upon the accused to prove his innocence. In this regard, the apex Court in Muhammad Imran's case (2011 SCM R 1954), has eloquently stated the true purport of Section 29 of CNSA, in terms that: "It is pertinent to mention here that Section 29 of C.N.S.A., 1997 cast a duty upon the Court to presume in trial under the Act that the accused has committed the offence under the Act unless contrary is proved. However, firstly, the prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused. If the prosecution proves the recovery of narcotics from physical custody of accused, then the burden of proving that he was not knowingly in possession of the article is upon him. In the instant case, primarily the onus was upon the prosecution to prove that whatsoever was recovered, were narcotic drugs and the same were recovered from the possession of the appellant. Perusal of the record indicates that the prosecution has failed to prove the initial burden upon it to establish the fact that the narcotic drugs were secured from the possession of appellant."
7.The present appellant was unable to produce any cogent or reliable evidence to discharge the onus cast upon him under Section 29 of the CNSA, to prove his innocence. The fact of the appellant being arrested while driving the Vehicle, which had contraband concealed in the secret cavities thereof, clearly set up a prima facie case have no conclusive proof of his conscious knowledge of the contraband concealed in the vehicle he was driving. Thus, the conviction of the appellant is surely in accordance with law.
8.What has irked the Court, is the quantum of sentence granted by the trial Court to the present appellant. It is by now settled principle of safe dispensation of criminal justice that the sentence to be awarded upon an accused charged under CNSA, is dependent upon the quantity of narcotics recovered from conscious possession of the accused. In this regard, it is noted that the prosecution case from its inception, commencing from what has been recorded in the FIR, the testimony of PW.1 Khawaja Muhammad Iqbal, PW.4 Iqbal Ahmad, and the FSL report Ex.PW.2/1, is that a total of 10 K.Gs. and 800 grams of `Charas' was recovered, and that the samples therefrom were taken, sealed in one parcel, weighing 90 grams of `Charas', which was sent for chemical examination to the FSL, the report whereof confirms the same to be `Charas'. What is important to note is that in the FIR and in the testimony of PW.1 and PW.4, neither the number of packets, nor the weight of each packet, has been stated. It is only during the cross-examination of PW.4 that on Court's inspection, the recovered contraband was de-sealed in Court with the following observations: "I cannot say anything in respect of factum of case property delivered to my predecessor in office in sealed -condition or in open condition, as same was received by him before joining office by me. At this stage, learned defence counsel requested for descaling of case property, the same was opened before the Court. It was found that nine packets were found inside the parcel.
Although sample from each of packet was separated but not in equal quantity. Nine packets of light and dark blue and chocolate colour having scribed on it Fenie Milde. It is incorrect to suggest that contraband produced before the Court is arranged from the store of Ware House and was not recovered from the possession of accused. I cannot say about the recovery as I have no concerned with the recovery proceedings, as I am the only custodian of seized narcotics."
9. So, what we have in evidence, are nine packets, containing narcotics, the total weight of which is 10 K.Gs. and 800 grams. In such circumstances, the apex Court in Ameer Zeb's case (PLD 2012 Supreme Court 380) had proceeded as under: "8. 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."
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 20 kilograms then, in all likelihood, each cake/slab weighed about 260 grains. As only one sample of 10 grants 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 char as weighing 250 grams in his possession which offence attracts the provisions of Section 9(b) of the Control of Narcotic Substances Act, 1997".
10.Now, applying the aforementioned principle for calculating the weight of each packet, as carried out by the apex Court in Ameer Zeb's case, we have 10800 grams of 'Charm' contained in 9 packets, the weight of each would come to 1200 grams, which would be the considered the base of contraband recovered and proved during the trial and, thus, the sentence to be awarded would depend thereon.
11.In a very recent case, the apex Court in Para Dins's case (2016 SCMR 806), has proceeded to award sentence in similar circumstances in terms that: "According to the law declared by this Court in the case of Ameer Zeb Vs. The State (PLD 2012 SC 380) the weight of two packets, i.e, two kilograms of charas could have been considered against Jillani appellant for the purposes of his conviction and sentence. This appeal is, therefore, partly allowed to the extent of Jillani appellant, his conviction for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 is maintained but his sentence is reduced to rigorous imprisonment for four years and six months and a fine of Rs. 20,000/- (Rupees twenty thousand only) or in default of payment thereof to undergo simple imprisonment for five months. The benefit under Section 382-B, Cr.P.C. shall be extended to the appellant. This appeal is disposed of in these terms."
12.The apex Court in the aforementioned case awarded four and a half years sentence on recovery of 2 K.Gs of narcotics and a fine of Rs. 20,000/- or in default of payment thereof to undergo simple imprisonment for five months. If the said principle is to be followed, the sentence awarded by the trial Court seems to be rather harsh and thus, warrants reduction.
13.Before parting with this judgment, it would be pertinent to note that the worthy counsel for the State vehemently insisted that the dicta of the apex Court, as rendered in Khuda Bakhsh's case (2015 SCM R 735), to be applied as far as the quantum of sentence is concerned. This Court has relied and followed Para Din's ease, which is not only later in time, but more relevant to the facts and circumstances of the present case.
14. Now, keeping the 'ratio decidenti' of the aforementioned judgments as our guiding principle, this Court, on reviewing the evidence produced by the prosecution, finds that the initial burden of establishing a 'prima facie' connection between the appellant and the recovered contraband has been positively carried out. In this regard, the most crucial 'link' of the 'chain', which establish the 'prima facie' connection between the appellant and recovered contraband is that the recovery thereof was from the Vehicle, which was driven by the resent appellant. The recovery officer, Khawaja Muhammad Iqbal, (PW. 1) clearly testifies the recovery being effected from the Vehicle, which was in control and driven by the appellant, with no other attendant at the time when the same was stopped, searched and recovery effected therefrom.
16. Accordingly, for the reasons stated hereinabove, this Court, while maintaining the conviction of the appellant, partially allows the present appeal and reduces the sentence from life imprisonment to four years R.I., while the fine of Rs. 200,000/- (two lac), is maintained or in default to undergo six months imprisonment.
Benefit of Section 382-B of Cr.P.C. is extended to the appellant.