Farooq Haider , J.:- This appeal has been filed against the judgment dated 25.02.2017 passed by the learned Additional Sessions Judge, Gujranwala, whereby in case arising out of F.I.R No.51/2015 dated 26.01.2015 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Cantt. Gujranwala (Ex.P A), the learned trial Court convicted and sentenced the appellant as under:- Under Section 9(c) of Control of Narcotic Substances Act 1997 to 09 years and 06 months R.I with fine of Rs.45,000/- and in default of payment thereof the appellant was directed to further undergo S.I for 07 months.
Benefit of section 382 B, Cr .P.C. was also extended to the appellant.
2. Briefly , the accusation levelled in the complaint Ex.PA/1 against the appellant, on the basis of which, above mentioned FIR was chalked out, is that on 26.01.2015 Fayyaz Hussain Sherazi, Inspector/SHO/complainant (PW-5) alongwith Muhammad Rafiq ASI, Haji Ahmad 3972/C, Abdul Hameed 1546/C, Saqib Ali 4084/C and Asmat Ullah 975/C on official vehicle was present at Rahwali where he received spy information that a truck bearing registration No.C-9035 having charas and opium was coming from Wazirabad side and could be captured if barricade is installed. On receipt of this information, the complainant alongwith his aforementioned companions reached at Chenab Gate and after some time, on signal of spy, truck was got stopped; truck driver and another person sitting with him having a shopper in his hand started running; driver escaped successfully due to darkness, however, aforementioned person accompanying the driver was apprehended alongwith shopper; he told his name as Zarab Khan; shopper was opened and charas in the form of pieces was recovered from the same, another small shopper was also found in the said big shopper, which small shopper was containing opium. On weighing charas was found as 6-kilogrms whereas opium was found as one kilogram. From the recovered charas, parcel of 100-grams was separated whereas from recovered opium 20-grams sample was separated. Samples and recovered charas and opium were separately sealed and taken into possession vide recovery memo Ex.PC, which was attested by Muhammad Rafique ASI (PW-6) and Abdul Hameed 1546/C (PW-7). The accused further told that charas and opium was being brought from Peshawar for the purpose of selling; he also disclosed the name of driver as Sabit Ullah.
Aforementioned both samples were sent to office of Punjab Forensic Science Agency , Lahore on 30.1.2015 through Muhammad Naseer 3405/C (PW-1) and according to report of said Agency (Ex.PE) Item No.1 which was 104.72 grams of dark brown resinous material in sealed parcel contains charas and Item No.2 which was 19.11 grams of blackish brown resinous material in sealed parcel contains opium.
After investigation, challan report was sent to Court against appellant; charge was framed against him, to which he pleaded not guilty; prosecution produced its evidence. The learned trial Court, after recording the statement of the appellant under section 342 Cr.P.C. and hearing learned counsel for the parties, passed the impugned judgment, whereby , the appellant was convicted and sentenced as mentioned above.
3. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and has falsely been implicated in this case by the police; recovered narcotics were in the shape of pieces but only one sample of parcel of each contraband has been prepared in this case, which cannot be treated as representative parcel in this case because separate samples were not prepared from each piece of recovered narcotics; prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, he may be acquitted from the charge after setting aside the impugned judgment.
4. On the other hand, learned Deputy District Public Prosecutor has supported the impugned judgment of the learned trial Court by contending that the appellant was caught red handed while carrying charas and opium; prosecution witnesses stood the test of lengthy cross examination but their credit could not be shaken; appellant was rightly convicted and sentenced by the learned trial Court, therefore, there is no substance in the present appeal and same is liable to be dismissed.
5. Arguments heard. Record perused.
6. It has been observed that allegedly recovered charas was comprising upon pieces and 100-grams was allegedly separated as sample, however , it has not been got clarified by the prosecution that allegedly recovered charas was comprising upon how many pieces and what was the weight of each piece. It has also not been mentioned that from how many pieces, how much charas was separated/taken for the purpose of preparing sample; similarly allegedly recovered opium was also comprising upon pieces like slabs and in this regard operative part of the statement of recovery witness Muhammad Rafique ASI (PW -6) is being referred:- "Opium was in shape of pieces like slabs. A slab may be of 03/04 inches in length"
From the recovered opium 20-grams was allegedly separated as sample. However, neither weight of each slab of opium has been given nor total number of slabs have been mentioned and it has also not been clarified that from how many slabs how much opium was separated for the purpose of preparing sample i.e. neither quantity nor weight has been clarified in this regard by the prosecution. In view of the same, there is no option left except to take into consideration only that quantity of charas and opium into consideration for the purpose of conviction and sentence, which has been received through sealed parcel of samples by the Punjab Forensic Science Agency , Lahore and it was 104.72-grams charas and 19.11-grams opium. In this regard, guidance has been sought from the case of "Ameer Zeb versus The State" ( PLD 2012 SC 380 ) and "Khuda Bakhsh versus The State" ( 2015 SCMR 735 ).
Furthermore, during trial of the case, prosecution itself moved application and got sent allegedly recovered charas and opium to Punjab Forensic Science Agency , Lahore for analysis but it is important to mention here that prosecution failed to produce Bashir Ahmad 7204/C who allegedly took the same to the office of Punjab Forensic Science Agency , Lahore, hence, safe transmission of allegedly recovered charas and opium to the office of Punjab Forensic Science Agency , Lahore could not be proved by the prosecution and thus report of Punjab Forensic Science Agency , Lahore (Ex.PF) in this regard is of no help to the case of prosecution and same cannot be used against the appellant. In this regard, reliance can be placed upon the case of "Ikramullah and others versus The State" ( 2015 SCMR 1002 ). Relevant portion of paragraph No.5 whereof is being reproduced: - admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit"
7. Resultantly , while taking guidance from the case of "Ghulam Murtaza and another versus the State" (PLD 2009 Lahore 362), the appellant is convicted under Section 9 (b) of the Control of Narcotic Substances Act, 1997 with respect of 104.72-grams charas and sentenced to one year and three months rigorous imprisonment with fine Rs.9000/- and in case of default thereof, he shall undergo S.I. for three months and 15 days. He is also convicted under Section 9 (a) of the Control of Narcotic Substances Act, 1997 with respect of 19.11-grams opium and sentenced to five months simple imprisonment with fine Rs.2000/- and in case of default thereof, he shall undergo S.I. for one month and 15 days. Both sentences shall run concurrently and benefit under Section 382-B Cr.P.C. shall also be given to the appellant.
8. With the above modification in conviction and sentences awarded to the appellant, instant appeal is dismissed.