1. ' ABDULLAH BALOCH, J.--This judgment disposes of Criminal Appeal No,01 of 2017 filed by the appellants Noor Muhammad son of Sakhidad, Rasool Bakhsh son of Gamani and Mubarek son of Lakho, against the judgment dated 17th December 2016 (hereinafter referred as, "the impugned judgment") passed by the Special Judge Customs/Sessions Judge Gwadar (hereinafter referred as, "Hie trial Court"), whereby the appellants were convicted under Section 156 (1) read with Section 178 of Customs Act, 1969 to pay fine Rs,10,000/- (Rupees Ten Thousand only) each; they have also been convicted under section 156 clause of 8 II(C) read with Section 178 of Customs Act, 1969 and sentenced to suffer five (05) years' R.I. each and shall also liable to pay fine of Rs,10,000/- (Rupees Ten thousand only) each, in default of payment, they shall suffer two (2) months' S.I. each, with the benefit of Section 382-B, Cr.P.C.
2. Facts of the case are that on 25th September 2015 the complainant Muhammad lqbal, Inspector Customs Gwadar lodged FIR No,09-Cus/Seiz/Gwd/15 at Police Station Custom Gwadar, against the appellants, stating therein that on 23rd September 2015, the Customs Authority along with the help of Maritime Security Agency apprehended a vessel/launch namely A 1-Hikmat No,BFD 6198 sailing towards Kappar area, which was signaled to stop, but the launch tried to speed-up. However, the said launch was chased and overpowered and the search of said vessel/launch resulted into recovery of 1776 foreign liquor brand of Camros Blended Scotch Whisky, 1440 foreign liquor brand of Muirhead's Scotch Whisky, 1296 foreign liquor brand of MacAndrew's blended scotch whisky and 9408 cans of Red horse Beer from the said vessel/launch.
2. 3.After lodging of FIR, the investigation was entrusted to PW-3 Muhammad Iqbal, IP, who took into possession the recovered contraband, separated one bottle each from Camaros Blended Scotch Whisky, Muirhead's Scotch Whisky and Macandrew's blended scotch whisky and one can of Red hofse Beer for analysis and sent the same to FSL and receipt the report in affirmative; recorded the statements of witnesses under Section 161, Cr.P.C. and on completion of investigations submitted the challan in the trial Court.
3. 4.At the trial, the prosecution has produced three witnesses, whereafter the appellants were examined under Section 342 Cr.P.C. However, neither they recorded their statements on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the appellants were convicted and sentenced as mentioned above in para No,1, whereafter the instant appeal has been filed.
4. 5.Learned counsel for appellants stated that the prosecution has failed to substantiate the charge against the appellant through consistent and concrete evidence. Learned counsel for appellants prayed for acquittal of appellants and in alternate prayed for moderate reduction in quantum of sentence in view of judgment of Ameer Zeb v. The State PLD 2012 Supreme Court 380.
5. 6.The learned Standing Counsel contested the appeal on merits and opposed the moderate reduction in the quantum of sentence on the ground that the prosecution has proved the case against the appellants beyond any shadow of doubt.
7. Heard the learned counsel and perused the available record. Record reveals that the learned trial Court has rightly found guilty to the appellants on the basis of unshaken statements of the prosecution witnesses. All the prosecution witnesses recorded their statements in line with each other and the defence has not been able to point out any major contradiction on the statements of witnesses. The witnesses have correctly narrated the story with regard to recovery of alleged contraband from the possession of the appellants while concealed in the vessel/launch. The appellants have failed to bring on record any motive for their false implication by the prosecution witnesses. Besides, the FSL report has also been received in affirmative, which has further strengthened the case of prosecution. Hence, on merits the impugned judgment of trial Court is not open for any interference by this Court and we have no hesitation to hold that the impugned judgment of Court below is based on proper appraisal of material available on record.
6. 8.So far as the prayer of the learned counsel for the appellants for moderate reduction in the quantum of sentence is concerned, in the case in hand, 1776 foreign liquor brand of Camros Blended Scotch Whisky, 1440 foreign liquor brand of Muirhead's Scotch Whisky, 1296 foreign liquor brand of MacAndrew's blended Bcotch Whisky and 9408 cans of Red horse Beer were taken into possession, but out of above said recovered quantity one/one bottle from each brand of whisky and one can/tin beer, total four bottles/can were separated and sent to FSL for chemical analysis.
7. Though the FSL report has been received in affirmative, but the fact remains is that only three bottles of Whisky and one can of Beer were examined in Laboratory by the Chemical Examiner and in absence of conducting the examination of remaining recovered contraband, it cannot be presumed that the remaining material were also whisky or beer. This fact on the face of it attracts the ratio of the law declared by the Hon'ble Supreme Court in the case of Amer Zeb v. The State (PLD 2012 SC 380) as well as the case of Fareed Ullah v. the State 2013 SCM R 302, whereby it has been held that representative sample from each slate/slab/packet etc. should have been taken and each sample should have been sealed in a separate parcel for chemical examination. If no sample is taken from any particular piece or if different samples taken from different pieces are not sent separately for analysis to Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere words of the mouth of the prosecution witnesses regarding the substances of which no sample has been taken separately and sealed separately and tested being narcotics substance. Under such circumstances, the samples separated for chemical examination would be considered as extracted from three bottles of Whisky and bottle of beer and only such quantity of the contraband could have been considered for conviction and sentence. The Hon'ble Supreme Court the case of Ameer Zeb held as under: "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 persons from which a sample was taken and tested with a positive result.
8. ' The Hon'ble Supreme Court in the case of Fareed Ullah has held as follows: "The record of this shows that the recovered charas allegedly weighing 24 kilograms was in the shape of 20 litters but after the alleged recovery one consolidated sample of the recovered substance had been taken which sample weighed 10 grams only. This admitted fact on the face of it attracts the ratio of the law declared by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) and, thus, at best only one litter of charas could have been considered against the appellants as the recovered substance and the appellants could have been convicted and punished accordingly. "
9. ' We are also fortified by the dictum laid down in the case of Shakeel Ahmed v. the State, PLD 1998 Supreme Court (AJ&K)
31. In the said case recovery of 23 bottles of intoxicant were recovered, but only two bottles were sent for Chemical Examination, hence it was held that, <i>"21 bottles were not sent to Chemical Examiner for examination and in absence of Report of Examination, at least, it could not be said with regard to 21 bottles as to which type of material they were containing.
10. Whether they were containing intoxicant material or not is a mere suspicion which cannot be a substitute of a proof which is strictly required in a criminal case to be proved against the accused."
11. 10.The above referred judgments of the Hon'ble Apex Court have stipulated specific guidelines for examination of the contraband either in solid or in liquid form. The examination of each and every separate portion of contraband either sealed in plastic bag or contained in cans and tins is essential to have been conducted by the Chemical Examiner and after receipt of affirmative analysis report of Chemical Expert it would be believed that the alleged recovered material is a substance that is prohibited under the law. If no examination of all the recovered substance is carried out then under such circumstances it cannot be presumed that the entire recovered substance was contraband rather presumption would be drawn that the substance that has been chemically examined was the contraband and the accused can only be held responsible for the contraband that has been chemically examined. Admittedly, in the case in hand only three bottles of Whisky and one bottle of beer were chemically examined, thus following the above quoted principles of the Hon'ble Supreme Court and in absence of any chemical analyst report in respect of all the recovered contraband, the appellants can only be convicted and sentenced for the recovery of three bottles of Whisky and one bottle of beer.
12. 11.Thus in view of what has been discussed hereinabove, while maintaining the conviction of the appellants under Section 156 clause 8 II(C) read with section 178 of Customs Act, 1969 of five (05) years' R.I., their sentences are reduced from five years to that of already undergone, while all the remaining sentences shall remain intact.
13. ' With the above reduction in the quantem of sentence, the appeal stands disposed of.