ABDULLAH BALOCH, J.---Appellant Din Muhammad son of Noor Muhammad has filed this appeal (Crl. Jail Appeal No. 06/2014) through Superintendent Central Jail Gaddani, assailing his conviction and sentence awarded vide judgment dated 18th January, 2016 (hereinafter referred as, "the impugned judgment") by the learned Special Judge CNS Quetta (hereinafter referred as, "the trial Court"), whereby he has been convicted under section 9(c) of CNS Act, 1997 and sentenced to suffer imprisonment for life with fine of Rs.100,000/- (Rupees One Hundred Thousand) or in default thereof to further suffer one (01) year's S.I., with the benefit of section 382-B, Cr.P.C.
2. It is the case of prosecution that on 30th October, 2014 the complainant Gul Hassan, SI, lodged FIR No.86 of 2014 at Police Station Winder District Lasbella under section 9(c) of CNS Act, 1997, stating therein that on the day of occurrence at about 12.15 a.m. he along with other police officials were checking the vehicles at Naka Kharari Check Post, on spy information the pick-up vehicle bearing registration No.WAD-236 driven by appellant Deen Muhammad son of Noor Muhammad was intercepted. The checking of vehicle was resulted into recovery of 55 packets of flat shaped "Charas" weighing 55-Kgs, 15 strips of "Charas" weighing 15-Kgs, 10 strips of "Charas" weighing 10 Kgs, total 80 Kgs, 14 packets Opium weighing 14-Kgs, 9 packets opium weighing 26 Kgs total 40-Kgs and two packets of Crystal Heroin weighing 2-Kgs kept and concealed in secret cavities made under the floor of the Pickup vehicle. Hence. 5/5-grams each was separated from 80-packets of Charas total 400-grams and sealed in parcel No.1 for analysis, while the remaining contraband was sealed in parcel No.2. Similarly, out of 23 packets Opium, 10/10 grams each was separated from all packets for analysis total 230-packets and sealed in parcel No.3, whereas the remaining contraband was sealed in parcel No.4. Likewise, out of 2 packets of Crystal, 10/10 grams each was separated and sealed in parcel. No.5, whereas the remaining contraband was sealed in parcel No.6.
3. In pursuance of the above FIR, investigation was carried out by PW-3 Abdullah, SI, who during investigation recorded the statements of witnesses; arrested the appellant and took into possession the contraband and the samples already sealed in parcel and sent the same to FSL for analysis; took into possession the pick-up vehicle No.WAD-236; received the FSL report in affirmative, while on completion of investigation, submitted the challan in the trial Court.
4. At the trial, the prosecution examined three witnesses. The appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced my witness in his defense. On conclusion of trial and after hearing the arguments, the appellant was convicted and sentenced as mentioned above in para No.1, whereafter instant Criminal Jail Appeal has been filed.
5. Learned counsel for the appellant contended that the entire prosecution case is doubtful as none of the prosecution witnesses have supported the case in categoric terms, whereas during examination they made certain dishonest improvements and contradictions with each other.
Furthermore, the recovery proceedings as narrated by the prosecution witnesses are doubtful. The learned counsel prayed for acquittal of the appellant or as an alternate he has also prayed for moderate reduction in the quantum of sentence referring the case of Ameer Zeb v. The State PLD 2012 Supreme Court 380.
6. On the other hand, the learned Deputy Prosecutor General 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 appellant beyond any shadow of doubt and huge quantity of contraband has been recovered from his possession, thus he is not entitled for any leniency as the trial Court has convicted and sentenced the appellant in accordance with law.
7. Heard the learned counsel and perused the available record. Record reveals that the appellant was rightly found guilty by the trial Court on the basis of unshaken statements of the prosecution witnesses. All the witnesses remained firm in their deposition and the defence has failed to give jolt or dent to the prosecution evidence. The appellant has failed to bring on record any motive for his false implication by the prosecution witnesses. Besides, the FSL report has also been received in affirmative, confirming that the samples so received and analyzed are the contrabands. The perusal of FSL report also reflects that the analysis process was carried out in accordance with law.
Thus, we have no hesitation to hold that the prosecution has succeeded in establishing the charge against the appellant.
8. In the case in hand, 80 packets of Charas were recovered, on weighing each packet contained one Kg, total 80-Kgs. It appears from the record that 5/5 grams each were separated from all the 80 packets, total weighing 400-grams, which were mixed-up and sealed in parcel No. 1. Similarly, 14 packets of Opium were recovered, each packet contained 1-Kg total 14-Kgs, whereas the recovery of 26-Kgs of Opium packed in 9 packets were also recovered. The weight of each packet of Opium recovered from 9 packets has not been mentioned, while samples of equal quantity were taken from all the 23 packets and mixed-up in one parcel, hence in the interest of justice and to avoid any indiscrimination the total 40-Kgs are distributed in 23 packets/shares and in such situation the weight of each packet would become about 1739-grams. Anyhow, out of 23 packets of Opium 10/10-grams each , ere separated from all parcels total 230-grams and sealed in parcel No.3.
Likewise, out of two packets of Crystal 10/10-grams each were separated and sealed in parcel No.5.
Thereafter, the parcels Nos.1, 3 and 5 were sent to FSL for analysis. According to the dictum laid down by the Hon'ble Supreme Court in the case of Ameer Zeb v. The State, (PLD 2012 SC 380), representative sample from each packet 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, these parcels sent for analysis would be considered as extracted from three packets of contraband weighing 3739-grams and only three packets of 3739-grams of the contraband could have been considered for conviction and sentence. The relevant portion of above referred judgment is reproduced hereinbelow: 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."
9. Thus, in view of above judgment, the appeal is partly allowed. The appellant is liable to be sentenced for possession of tested material of contraband, applying the sentencing policy of Lahore High Court laid down in the case of Ghulam Murtaza and others v. The State, PLD 2009 Lahore 362, the impugned judgment passed by the trial Court on 18th January, 2016 is modified and the appellant is sentenced for possession of Crystal/heroin exceeding 1-Kg for six years with fine of Rs. 30,000/-and in default whereof he has to further suffer six months' S.I. The appellant is also sentenced for having in possession of Charas exceeding 1-Kg and is sentenced for four years, with fine of Rs.20,000/- and in default thereof he has to further suffer six months' S.I. Similarly, for having in possession of Opium exceeding 1-Kg he is sentenced to R.I. for four years, with fine of Rs.8000/- and in default whereof to further suffer four months' S.I. All the sentences are directed to run concurrently. Benefit of section 382-B, Cr.P.C. is also extended in favour of appellant.
With the above modification in the quantum of sentence, the appeal stands dismissed.