OMAR SIAL, J.---By this judgment, we will dispose of this Criminal Appeal against the judgment of the learned Special Court-II, Control of Narcotic Substances at Karachi dated 29-10-2011 in Special Case No,75 of 2011.
2.On 22-1-2011, Rozina Begum, the Appellant, carrying two suitcases disembarked at the Drigh Road Railway Station in Karachi from a train inbound from Quetta. Finding her suspicious, a team of police officials deputed at the police post of the Drigh Road Railway Station performing their normal duties stopped and searched her. Upon her search 14 packets containing 100 rods of chars in each packet were recovered from one suitcase whereas 16 packets containing 100 rods of chars in each packet were recovered from the second suitcase. Each packet weighed one kilogram.
Hence, 30 packets comprising 3000 rods of charas aggregating a gross weight of 30 kilograms were recovered from the Appellant's suitcases. The Appellant was arrested and an FIR bearing number 6 of 2011 was registered against her under sections 6 and 9(c) of the Control of Narcotic Substances Act, 1997 at the P.S. Railway Cantt, Karachi.
3.The charge against the Appellant was framed on 28-2-2011. The prosecution produced four witnesses in support of its case. PW-1 was the complainant ASI Abdul Razzak who had also arrested the Appellant and prepared the memo of arrest and recovery. PW-2 was LPC Samina who had conducted the search of the Appellant and was also a witness. PW-3 was PC Muhammad Afzal who was a witness to the memo of arrest and recovery. PW-4 was SIP Ameer Abdullah who was the investigating officer of the case. The Appellant did not produce any witness in her defence but in her section 342, Cr.P.C. statement denied the allegations leveled against her. On 29-10-2011, the learned Special Court No II for Control of Narcotic Substances at Karachi gave its judgment and sentenced the Appellant to life imprisonment and a fine of Rs, One million and additional 3 years of rigorous imprisonment if she failed to pay the fine. Hence this appeal.
4.We have heard the learned counsel for the Appellant and the learned Standing Counsel and have also scanned the record with their able assistance. We intend to address each of the arguments raised by the learned counsel for the Appellant.
5. It has been argued that the arresting officer was of the rank of an ASI and hence there was a violation of section 21 of the CNS Act 1997. The Hon'ble Supreme Court in State v. Abdali Shah (2009 SCM R 291) has dealt with this issue observing that "it cannot be expected that upon apprehension of the accused the police party would go in search of the officer who is entitled to arrest the accused." In this case the Hon'ble Supreme Court also held that the provisions of section 21 are not applicable when an accused is apprehended by the police during their normal duties. Earlier, in Zafar v. The State (2008 SCM R 1254) the Hon'ble Supreme Court had already held that sections 20, 21 and 22 of the CNS Act, 1997 are directory in nature and non-compliance would not make the trial or conviction bad in the eyes of law. We therefore find no force in the argument of the Appellant's counsel.
6. It has been argued that because the Appellant is a woman she cannot be expected to be involved in the business of drugs or has the strength to carry 2 suitcases. For obvious reasons, we are not impressed with this argument. It will however not be out of place to point out that the Hon'ble Supreme Court in Surraya Bibi v. The State (2008 SCM R 825) has held that:-- "We may point out here that in the cases pertaining to offence of narcotics, it has been seen that the drug peddlers, to achieve their nefarious objects, have adopted obnoxious device by engaging womenfolk and the children and through them crimes is being committed and ultimately mercy is sought against such accused on humanitarian grounds, etc. Therefore, to curb such menace, Courts are required to award adequate punishment instead of showing sympathy on the ground that accused is woman or a child, otherwise, the actual accused involved in such heinous crime, which is against the society, would be encouraged and carriers would also be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking."
7. The counsel has argued that no railway employee or private witness was made a witness by the police. Section 25 of the CNS Act, 1997 has excluded the applicability of section 103 of the Cr.P.C. in narcotic cases. The Hon'ble Supreme Court in Zafar v. The State (2008 SCM R 1254) has held that "applicability of section 103, Cr.P.C. in the narcotic cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction." The same view was taken by the Hon'ble Supreme Court in Abdul Rasheed v. The State (2009 SCM R 306) and Tariq Mehmood v.
The State (PLD 2009 SC 39). We, therefore, do not find any force in this argument of the counsel.
8. Learned counsel for the Appellant states that the trial court did not take into consideration that mens rea must accompany the actusr eus to make a person liable for an offence. He has not assisted us or addressed this point in Court but as it finds a brief mention in his memo. of appeal, for the sake of propriety, we address the same here. The question of mens rea in narcotics cases was addressed by the Hon'ble Supreme Court in Muhammad Noor v. The State (2010 SCM R 927).
The Court observed that:-- "The learned counsel for the appellants has argued that the possession simpleton would not constitute an offence unless it is accompanied by mens rea or knowledge of the person. General rule is that there is presumption that mens rea, an evil intention or knowledge of wrongfulness of the act is an essential ingredient in every offence. However, such presumption is liable to be displaced [either] by the subject-matter with which it deals."
While dealing with the issue of mens rea in juxtaposition with section 29 of the CNS Act 1997, the Hon'ble Supreme Court went on to hold:-- "The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession.
Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6 possession with knowledge. The Legislature could not have intended to make mere physical custody without knowledge of an offence, therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of it or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act, 1997."
Subsequently, in Mohammad Imran v. The State (2011 SCM R 1954) the Hon'ble Supreme Court has observed:-- "It is pertinent to mention here that section 29 of C.N.S.A., 1997 cast a duty upon the Court to presume in a 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 the physical custody of accused, then the burden of proving that he was not knowingly in possession of the article is upon him."
In the present case, the prosecution has been able to prove through evidence that the Appellant was indeed apprehended alone, red handed while in possession of two suit cases with contraband substance in it. The samples sent to the chemical examiner were also tested positive as charas. In her 342, Cr.P.C. statement the Appellant has taken the defence that because she did not satisfy the illegal demands of the policemen she has been implicated in the case. No enmity was alleged against prosecution witnesses and there was no possibility for false implication without having any ulterior motive, which though alleged by the Appellant remained disproved in trial. In fact, the prosecution witnesses were not even confronted with a question regarding the allegation of illegal gratification. In view of the foregoing, we are of the view that the prosecution discharged the burden as enunciated in the decisions of the Hon'ble Supreme Court while the Appellant failed to disprove the same.
9. We now come to the very important issue of the quantum of recovery and consequently the sentence given by the learned trial court to the Appellant. The prosecution case, is that a total of 30 packets of charas, each weighing 1 kg gross were recovered and seized from the Appellant. 2 out of the 30 packets were of a black/cream color whereas the remaining 28 packets were of a red/brown color. The FIR, challan F and the statements of prosecution witnesses all state that 1 packet out of the 2 black/cream colored packets and 2 out of the 28 red/brown packets were sealed and sent to the chemical examiner for analysis. The question of sampling has been conclusively decided by the Hon'ble Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380). Suffice to say that a sample taken of a recovered substance must be a representative sample of the entire substance recovered. If a sample is not taken from each recovered packet then the sample would not be a representative sample. The same principle has been reiterated by the Hon'ble Supreme Court in Abdul Sattar v. The State (2016 SCM R 909), Abdul Hameed v. The State (2016 SCM R 707) and Shaukat Ali alias Billa v. The State (2015 SCM R 308). When the learned Standing Counsel was confronted with this question, he very candidly conceded that sampling had not been done in line with the Ameer Zeb judgment. We therefore hold that the samples of charas sent for chemical analysis in G this case tere not a representative sample of the entire seizure and hence the Appellant is liable for 3 kgs charas and not 30 kgs as is the prosecution case.
10. For the reasons given above, this appeal is partly allowed. The conviction of the Appellant for an offence under section 9(c) of the CNS Act, 1997 is maintained but her sentence is reduced to rigorous imprisonment for 5 years and 6 months and a fine of Rs, 25,000 or in default simple imprisonment for 5 months and 15 days. The benefit of section 382-B, Cr.P.C. is extended to her. The Appellant has been behind bars since 22-1-2011. As such, she has served her sentence and may be released if not required in any other case.