1. Mazhar Alam Khan Miankhel, sagh this single judgment, we propose to decide this Crl. Appeal, filed by appellant Izzat Khan and connected Crl. Appeal No. 153-P/2014, filed by appellant Muhammad Ismail, as both are the outcome of one and the same judgment of the learned trial Court/Judge Special Court-II, Peshawar, whereby both the appellants have been convicted under Section 9(c )
2. Control of Narcotic Substances Act, 1997. and sentenced to undergo 'Imprisonment for life' and to pay a fine of Rs. 2,00,000/- or in default thereof to undergo 06 months S.I. each. Benefit of S. 382-B, Cr.P.C. has been extended to them.
2. The prosecution case as unfolded in First Information Report Exh.PA/1 is that, on receipt of prior information to Riaz Khan Director General Intelligence and Investigation FBR, Islamabad qua trafficking of huge quantity of narcotic from tribal territory via Peshawar Kohat route through a Truck bearing Registration No. GLT-9491, Muhammad Saddiq Intelligence Officer, Peshawar (PW.1), on the direction of Muhammad Arshad Khan Deputy Director Intelligence and Investigation FBR, Peshawar, made a barricade near Scheme Chowk Kohat on 09.02.2012 at 12.00 hours, attercepted the aforesaid Truck. On cursory search charas was detected in secret cavities of the truck. The Truck alongwith accused, who disclosed their names as Izzat Khan (driver) and Muhammad Ismail (cleaner) (appellant-convicts herein), was brought to the Office of Custom Intelligence Office Custom House Peshawar, where on thorough search total 800 Kilograms Charas was recovered from its secret cavities made in its floor. Unspecified small quantity was separated from the recovered narcotics, amalgamated and then 10/10 grams three samples were separated from the same by Muhammad Sadiq Inspector Custom Intelligence (PW.1), out of Which he only sent 10 grams sample to the FSL for chemical analysis. Vide recovery memo. Exh.PW.1/2, he took into possession the Truck and prepared its inventory memo. Exh.PW.1/3, issued arrest card of the accused Exh.PW.1/4. He drafted murasila Exh.PA and sent the same to I&P Branch on the basis of which FIR Exh.PA/1 was registered against the accused/appellants. He obtained physical remand of the accused/appellants, conducted their personal search vide search memos. Exh.PW.1/12 and Exh.PW.1/13.
3. 3.Rest of the investigation was conducted by Muhammad Yousaf Khan Inspector (PW.2), on completion whereof, challan was submitted against the appellants before the learned trial Court, where they were formally charge sheeted to which they pleaded not guilty and claimed Trial. To prove the guilt of the appellants, prosecution examined as many as three witnesses. After closure of the prosecution evidence, statements of the appellants were recorded under Section 342, Cr.P.C, wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath under Section 340(2), Cr.P.C. or to produce evidence in defence.
4. On conclusion of trial, the learned trial Court," after hearing both the sides, convicted and sentenced the appellants as mentioned above, hence, these appeals.
5. 4.The only argument advanced by learned counsel for appellant Izzat Khan. was that neither number of the recovered packets, nor weight of each packet has been given by the Seizing Officer in the FIR and recovery memo. nor the same could be ascertained from the prosecution evidence.
6. Similarly, small and unspecified quantity of charas has been shown separated from each packet, from which only one simple of 10 grams has been sent to the FSL, therefore, in such circumstances, in light of the principle laid down by the Hon'ble Supreme Court in its authoritative judgment in case of "Ameer Zeb vs. State" (PLD 2012 SC 380), followed by the apex Court in the cases of "Fareedullah vs. The Stale" (2013 SCM R 302), "Para Dit)%and others- vs. The State" (2016 SCM R 806) and "Abdul Sattar vs. The State", (2016 SCM R 909), weight of only one packet, is to be considered against the appellant for the purpose of his conviction and sentence, thus, he requested for reduction in the sentence of the accused/appellant Izzat Khan to the extent of only one packet weight of which is to be determined by this Court in light of the mechanism laid down in the judgment of the Apex Court in case of Fareedullah 2013 SCM R 302 (supra).
7. 5.The crux of the arguments of learned counsel for appellant Muhammad Ismail was that his client being cleaner of the Truck, the prosecution had miserably failed to prove his conscious knowledge through cogent and confidence inspiring evidence of the alleged concealed narcotics, therefore, findings of the learned trial Court to the extent of his conviction and sentence being against the law and evidence are liable to be set at naught.
8. 6.Conversely, Mr. Muhammad Safdar Khan, Advocate, learned Standing counsel for the State, contended that the appellants have been arrested red handed on the spot and huge quantity of charas has been recovered from secret cavities of the Truck which was in their exclusive possession and control and this fact alone would be sufficient to prove their conscious knowledge; that from the entire recovered narcotics small quantity was separated, amalgamated and then from the same sample was prepared and sent to the FSL, and the positive FSL report Exh.PZ is sufficient to prove the entire stuff to be narcotics.
9. 7Arguments of the learned counsel for the parties heard and record perused with their able assistance.
10. 8.The only question to the extent of appellant Izzat Khan is about reduction of his sentence in light of argument of his counsel, therefore, we without dilating upon the other merits of the case, restrict our findings only to this extent.
11. 9.It appears from the record that recovery of 800 Kilograms charas has been shown from the secret cavities of the Truck being driven by the appellant Izzat Khan in company of his cleaner Muhammad Ismail co-appellant. It is not manifest from the murasila Exh.PA and FIR Exh.PA/1, as to whether the recovered charas was in packets, and if yes, what was the number of the packets and what was weight of each packet. No doubt, recovery memo. Exh.PW.1/2 depicts that the alleged recovered charas was in packets, yet the number of the packets and weight of each packet has not been mentioned therein. This ambiguous situation has not been clarified by the prosecution in its evidence. What can be gathered from the available record and evidence is that a small and unspecified quantity of charas was separated by Muhammad Sadiq Inspector Custom Intelligence & Investigation FBR (PW. 1) from each packet, then was amalgamated, from which he made three samples of 10 grams each, however, sent only one sample of 10 grams to the FSL fOr chemical analysis, report whereof Exh.PZ is in positive. It is to be noted that the question of taking of samples of recovered narcotic substance which remained a point of controversy in many cases before the august apex Court, has been exhaustively and finally dealt with by the Hon'ble Supreme Court in its authoritative judgment delivered by a larger Bench in case of "Ameer Zeb vs. The State" (PLD 2012 Supreme Court 380), in the following words:-- "Where any narcotics substance is allegedly recovered while contained in different packets, wrappers or container 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 positive results".
12. Following its view in the aforesaid judgment the Hon'ble Apex Court in the cases of "Para Din and others vs. The State (2016 SCM R 806), and "Abdul Sattar vs. The State" (2016 SCM R 909), while maintaining the convictions of the accused, reduced their sentences only to the extent of the quantity of packets from which the samples were obtained.
10. Since, in this case the number of the packets and weight of each packet, is not known, therefore, the next question for determination before us would be as to what quantity is to be considered against the appellants for the purpose of conviction. In this regard, we would refer to the mechanism laid down by the august Apex Court in case of "Famed Ullah vs. The State" (2013 SCM R 302) in light of the sentencing guidelines of the Lahore High Court, Lahore contained in the case of Ghulam Murtaza and another vs. The State (PLD 2009 Lahore 862). In the aforesaid case, 24 Kilograms charcts was recovered from accused in the shape of 20 littars. The accused were convicted and sentenced under Section 9(c ) CNS, Act, 1997, to undergo imprisonment for life and to pay a fine of Rs. 5,00,000/- each by the learned trial Court. The Hon'ble Supreme Court in Suo Motu Criminal Review Petition No.- 44 of 2010 in Jail Petition No. 137 of 2008, decided on 22nd November, 2012, modified the conviction and sentence of the accused by holding that the recovered charas allegedly weighing 24 Kilograms was in the shape of 20 Littars but after the alleged recovery one consolidated sample of the recovered substance had been taken which sample weighted 10 grams only. This admitted fact on the face of it attracts the ratio of the law declared by this Court in case of Ameer Zeb vs. The State (PLD 2012 SC 380) and thus, at best only one littar of charas could have been considered against the petitioners as the recovered substance and the petitioners could have been convicted and punished accordingly. The Hon'ble apex Court by going with the law of averages further held that if 20 littars weighed 24 Kilograms, then one littar would weigh 1.2 Kilograms and it is only charas weighing 1.2 Kilograms for which the petitioners could have been convicted and senteneed.
13. 11.In this case, as stated earlier, the number of the packets and weight of each packet is not known.
14. However, from the entire recovered narcotics only 03 samples of 10 grams were separated, out of which only one sample of 10 grams has been sent to the FSL; report whereof is in positive. It has been held by the Apex Court in case of "Ameer Zeb vs. The State" (PLD 2012 Supreme Court 380) that sample taken of a recovered substance must be a representative sample of the entire substance recovered. If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cake/slab are not kept separately for their separate analysis by Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance. Since in some situation Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purpose of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between prosecution and defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency.
15. Such minimum standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens regarding life and liberty which could not be left at the mercy of verbal assertion of police officers. In view of the above discussion what we can observe is the quantum of proved narcotics against the appellants, and that only comes to 10 grams, the stuff, sent for chemical analysis. Except the said quantum, there is nothing on The record regarding the remaining alleged recovery. So the appellants can only be held liable for the said proved substance.
16. 12.As regards the contention of learned counsel for accused Muhammad Ismail, the same is not tenable because the prosecution has proved his presence in the Truck and his arrest on the spot with the driver accused. He having been proved the conductor of the vehicle cannot be absolved from the charge on his mere assertion that he was totally unaware of the contraband lying in the Truck without solid evidence on his part to substantiate the same. Neither any defence evidence has been led by him nor did he opt to appear as his own witness under Section 340(2), Cr.P.C.
17. Keeping in view the peculiar circumstances of the case, it is difficult to believe that huge quantity of narcotics was concealed in the truck and he being its cleaner remained ignorant of the same.
13. For what has been discussed above, we entertain no doubt about the conviction of the appellants, however, their case is at par with the cases of the accused of the above referred cases, therefore, their conviction under Section 9(c), is converted to Section 9(a) CNS, Act, 1997 and their sentence is reduced Prom life imprisonment to the period already undergone by them in case FIR No. 12 dated 09.02.2012, under Section 9(c) CNS Act, 1997, Police Station I&P Branch Custom House, Peshawar. The sentence of fine shall remain intact. With the above modifications in the conviction and sentences of the appellants, appeals stand disposed of accordingly.
18. 14.These are reasons of our short order of even date.
19. 15.Before parting with the judgment we deem it appropriate to mention here that this Court during hearing of the case when came across with the anomaly/flaw, rather to say a blunder on the part of the Seizing Officer and the Investigating Officer, summoned Director Custom Intelligence, Collector Custom, Peshawar and Investigating Officer, in compliance whereof, Khayal Muhammad Deputy Director Custom and Muhammad Yousaf I.O., appeared. When the I.O. was confronted with the principle of separation of samples from the recovered narcotics, laid down by .the august Apex Court in the above referred judgments, he thrown the entire responsibility on the shoulders of the Seizing Officer that the proceedings of separating samples were conducted by him, however, he failed to offer any explanation, much less satisfactory, about his own responsibility as I.O. of the case. The conduct of the Seizing Officer and the I.O. as is. manifest from the instant case, indicates that they were in league with the accused party and their intentional poor investigation helped them out. Therefore, Deputy Director Custom, present in the Court, was directed to inquire into the matter and submit his report so as to roach this Court through the Additional Registrar (Judicial), within a period of two months, positively.