Raja Shahid Mehmood Abbasi, J.--Muhammad Yameen appellant, was tried in case F.I.R No. 8 registered at Police Station Anti Narcotic Force, Multan on 01.07.2003 in respect of an offence under Section 9-C of the Control of Narcotic Substances Act, 1997 and vide judgment dated 22.09.2010 handed down by a learned Addl.Sessions Judge, Multan, he was convicted for an offence under Section 9-C of Control of Narcotic Substances Act, 1997 and sentenced to life imprisonment with a fine of Rs.200,000/-, in default of payment of fine to further undergo ten months SI. Benefit of Section 382-B, Cr.P.C. was extended to him. Hence the present appeal.
2. Briefly the facts of the prosecution case as mentioned in Para No. 1 of the impugned judgment are reproduced as under: "The complaint Ex.PA was made by Ghulam Abbas Inspector who reported that on the fateful day, Capt. Shaukat Jawad AD ANF received spy information that the accused who deals in narcotics would pass in front of Galla Mandi at Vehari Road, Multan to supply .narcotic at about 1/2 p.m. and would come there from Khadeja Colony. At this, the raiding party reached at pointed out place at 12.00 Noon and started secret surveillance. At about 1 p.m. the accused holding a plastic tora in his hand came at Vehari Road from Khadeja Colony. At the instance of the informer, he was arrested.
From the tora, held by the accused in his right hand, five packets of charas each weighing one kilogram were recovered. On interrogation, the accused further disclosed that he has concealed narcotics in his house. The accused led the raiding party to his house and from his residential room, 15 packets of charas, total weighing 15.400 gram were recovered. On the basis of this complaint, F.I.R. Ex.PA/1 was registered."
3. The appellant was indicted on 17.09.2003 to which he pleaded not guilty and claimed his trial, hence, 'the prosecution witnesses namely, Shabbir Asad ASI/Moharrar as PW-1, Sajjad Husain HC as PW-2, Ghulam Abbas Inspector as PW-3, Zia Ullah Khan, Magistrate Section 30/ Special Magistrate ANF as PW-4 and Muhammad Suleman HC as PW-5 were recorded in order to prove the recovery against the appellant, report of Chemical Examiner was tendered in evidence as Ex.PE. When the prosecution case was closed, the appellant was examined under Section 342, Cr.P.C. who denied the allegations levelled against him maintaining that false case has been planted upon him by the Investigating Officer due to personal grudge. He neither opted not to lead evidence in his defence as required under Section 340(2), Cr.P.C. nor produce any defence evidence. Whereafter, learned trial Court after hearing the arguments of the counsels for the parties and evaluating the evidence produced before it, convicted and sentenced the appellant as mentioned in the preceding Para-1.
Hence the appeal in hand.
4. Heard and record perused.
5. We have observed that according to the prosecution, the appellant was surprised by the ANF contingent and from his possession five packets of charas and the total weighing five kilograms was recovered. On his further disclosure after his arrest and on his pointation further 15 packets of charas total weighing 15.400 kilograms were recovered from his house. Thus total 20.400 kilograms contraband charas was recovered from the possession of the appellant. The F.I.R as well as memorandum of recovery shows that 10 grams each out of all 20 packets had been separated and amalgamated for chemical analysis and then sealed into a parcel. The report of Chemical Examiner Ex.PE also reflects that only one sample of charas weighing 200 grams was tested for chemical analysis positively. In such a situation, the August Supreme Court of Pakistan in the case of Fareed Ullah vs. The State (2013 SCM R 302), while dealing with similar circumstances, observed as follows: "The record of this shows 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 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 littar of charas could have been considered against the petitioners as the recovered substance and the petitioners could have been convicted and punished accordingly. Going by the law of averages, 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 sentenced."
In the instant case also 20 packets of charas weighing 20.400-, kilograms were recovered from the appellant where a composite sample of 10-grams each (total weighing 200 grams) has been sent for chemical examination, therefore, by following the case law laid down in the case supra as well as keeping in view the law of average, if 20 packets of charas weighed 20.400-kilograms then one packet would weigh one kilo and 2 grams for which the appellant could have been convicted and sentenced. Keeping in view the law of average as well as keeping in view the ratio laid down in the case of Ameer Zeb vs. The State (PLD 2012 SC 380) the appellant can be convicted u/S. 9(c) of the Control of Narcotic Substances Act, 1997 for having one kilo and 2 grams charas, therefore, in view of the policy laid down in Ghulam Murtaza's case (PLD 2009 Lahore 362) his sentence is reduced to 04-years and 06-months RI and the fine is also reduced from Rs.200,000/- to Rs.20,000/-, in default thereof, to further undergo S.I. for five months. According to the jail report dated 22.11.2010 furnished by Superintendent New Central Jail, Multan, the appellant has already served out 15 years 07- months and 17 days of his sentence. He is already on bail by way of suspension of his sentence, therefore, his sureties are discharged.