1. SHAHID HAMEED DAR, J.---The appellant, Muhammad Shabbir alias Goga Butt, by filing the instant appeal, has challenged judgment dated 24.4.2014 passed by the learned Additional Sessions Judge/Judge Special Court CNSA, Sialkot, whereby he was held guilt under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for two years with fine of Rs,15,000/- or in default thereof to further undergo simple imprisonment for two months.
2. Benefit of section 382-B, Cr.P.C. was, however, extended to him.
3. 2.Precisely, the prosecution story as narrated in the FIR (Exh.PB) is that Muhammad Arif SI (P.W.4) along with some co-police-officials was present at Ladhar Chowk, Sialkot at 2.00 p.m. on 21.11.2010, when appellant came from the village-side (Ladhar) and on seeing them, he turned back to escape, but they all apprehended him; his personal search A yielded contraband charas weighing 1250 grams, vide seizure memo Exh.PA, fifty (50) grams out of which were separated for chemical analysis. He reduced into writing complaint Exh.PC and despatched it to the Police Station through Usman -Aslam 1543/C for registration of formal FIR: On receipt thereof, Zafarullah SI/DO (P.W.3) drafted formal FIR (Exh.PB) at 2.30 p.m., the same day. After completion of investigation, the police submitted challan against the accused-appellant before the trial court for his trial in accordance with the law.
4. 3.On indictment of the appellant, the trial commenced. He pleaded not guilty and clan-Lad .a trial.
5. The prosecution produced six witnesses, namely, Muhammad Atzar 292/C (P.W.1), Naveed Akram 902/C (P.W.2), Zafarullah SI (P.W.3)-, Muhammad Arif SI (complainant/ P.W.4), Muhammad Ziaullah 1141/MHC (P.W.5) and Gulzar Ahmad SI/I0 (P.W.6). Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he proclaimed his absolute innocence in the matter. He while answering the question, why this case was registered against him, stated as under:-- "PWs are police officials and are also inimical to me. Police falsely involved me in this case at the instance of my , opponents."
6. He did not opt to appear under section 340(2), Cr.P.C., but intended to adduce evidence in defence and produced copies of FIR No,127/2010, FIR No,706/2009, 534/2013, all registered at Police Station Saddar Sialkot and a bail application with order dated 10.2.2014 in relation thereto, as Exh.DA, Exh.DB, Exh.DC and Exh.DD, respectively for the said purpose.
7. 4.After culmination of the trial, the learned trial Court pronounced its verdict and awarded punishment to the appellant in mentioned terms.
8. 5.We have heard learned counsel for the parties and perused the record with their able assistance.
9. 6.The main argument pressed into service by learned counsel for the appellant is that the contraband allegedly recovered at the instance of the appellant consisted of many a slices/cakes/pieces, but the Investigating Officer did not take a separate sample from each one of them and segregated only fifty grams therefrom, to render it into a sealed parcel for transmission to the office of the Chemical Examiner. The learned counsel has further contended that Naveed Akram. 902/C (P.W.2), an attesting witness of memo of recovery (Exh.PA) and Muhammad Arif SI (complainant/P.W.4) have deposed in their statements that recovered contraband consisted of many slabs/lices/pieces, but sample was not obtained from each of them, which meant that the prosecution had badly failed to prove its case against the appellant beyond fifty grams charas. It has been further submitted by the learned counsel that the chemical examiner's report (Exh.PE) leads to believe that the contraband substance, allegedly recovered from the possession of the appellant merely weighed fifty (50) grams and rest of the quantity as shown in the complaint (Exh.PC) was not the narcotic substance, having not even been touched by the complainant (P.W.4) for segregation of the sample. Lastly submits that the appellant's case is fit enough, to be given benefit of Ameer Zeb's case, reported as PLD 2012 SC 380.
10. 7.On the other hand, learned Deputy Prosecutor General Punjab has submitted that it was not legally required to take a separate sample from each slab/cake/slice/piece of the narcotic substance recovered, nor it was legally essential to send every such sample separately to the office of the Chemical Examiner for analysis. He has maintained that the learned trial court had committed no illegality in convicting and awarding sentence to the appellant for the entire quantity of 1250 grams of charas and that the arguments advanced by the learned counsel for the appellant were based on misconception of the law and facts.
11. 8.Whether or not the arguments of learned counsel for the appellant ingrain any substance therein, is a question which can easily be answered in the light of a mega judgment of the Hon'ble Supreme Court of Pakistan in kneer Zeb's case (supra). While dealing with an identical proposition, the apex court referred to many a case-law on the subject and concluded 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."
9. Insofar as case in hand is concerned, we learn from the contents of the FIR (Exh.PB) and from the testimonies of Naveed Akram 902/C (P.W.2) and Muhammad Arif SI (P.W.4) that the appellant, at the time of his arrest on 21.11.2010, possessed 1250 grams of the contraband charas, which was packed in a shopping bag, held in his right hand. It has not been mentioned in the complaint (Exh.PC) or in the seizure memo (Exh.PA), attested by Shahid Masood ASI PW (since given up) and Naveed Akram 902/C (P.W.2), as to how many slabs/cakes/slices were there in the said packet.
12. This detail, however, appeared on the record when Naveed Akram (P.W.2) deposed about the fact in his testimony that contraband-charas consisted of ten (10) complete slabs/slices and one broken piece. Muhammad Arif SI (P.W.4) deposed that it consisted of eleven (11) complete slabs/cakes wrapped in polythene and a half slab, as to the size of any one off eleven slabs. A little arithmetical calculation may help understand, though not with exactitude, yet close to being exact, the probable weight of each slab/slice of the contraband seized. The recovered substance, 1250 grams, if divided by eleven, an average of the number of pieces/slices as deposed about by P.W.2 & P.W.4, would make it 113.63 grams against each slice/cake/piece thereof. The testimonies of the prosecution witnesses do not reveal that the complainant/SI (P.W.4) segregated a sample from each of the slices/cakes/pieces, rather he has categorically deposed that he separated fifty (50) grams from the recovered bulk, so as to render it into one packet for chemical analysis. It was certainly not a wise act to do by him. It creates a pitfall in the prosecution case. The obscurity hovering over the prosecution case as to whether sample of fifty (50) grams was segregated by the complainant-SI (P.W,4) from one slab/slice or from all of them gives rise to a crucial question, which has not been viably answered by the prosecution during the course of the trial, In such a situation of ambiguity, only one estimation can be made that one slab had been used by the complainant-SI to segregate sample of fifty (50) grams for transmitting it to the office of the Chemical Examiner for chemical analysis. It has been worked out in the preceding lines that each slab or slice of the recovered stuff may weigh around 113.63-grams. With a small mental exercise again, it can safely be arrived at that nine or ten slices/slabs of the recovered stuff had gone unrepresented and it was not discernible even after full-fledged trial of the appellant that all recovered slices/slabs fell within the mischief of 'a narcotic substances', as defined by the Control of Narcotic Substances Act, 1997. Hence, rest of the material recovered shall be rejected as mere junk. In an identical situation, the apex court has observed in Ameer Zeb's case (supra), as under:-- "In the case in hand 80 cakes/slabs contained in 20 packets kept on 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 stately 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 250 grains. As only one sample of 10 grams 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 charas weighing 250 grams in his possession which offence attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997. " The report of the Chemical Examiner (Exh.PE) reveals that a single packet received for chemical analysis, contained charas. By applying the formula, as derived from the apex court's oft-repeated judgment, it can easily be concluded for safe administration of justice that Muhammad Shabbir alias Goga Butt-appellant could be held responsible for having only one slice/slab of charas weighing 113.63 grams in his possession at the time of his arrest by the police.
10. In this view of the matter, this appeal is partly allowed, the conviction of the appellant recorded for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 is converted into the one, under section 9(b) of the Act (ibid) and following the sentencing-policy, as enshrined in Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), he is sentenced to rigorous imprisonment for one year and three months, with payment of fine of Rs,9,000/- or in default thereof to undergo simple imprisonment for three months and fifteen days. The benefit of section