SADIQ MAHMUD KHURRAM, J. Ansar Abbas alias Pakori son of Karam Hussain (appellant) was tried by the learned Additional Sessions Judge, Rajanpur , in case FIR No.492 of 2014 dated 04.08.2014 registered at Police Station Fazil Pur, District Rajan Pur, in respect of an offence under section 9(c) of Control of Narcotic Substances Act, 1997. The learned trial court vide judgment dated 24.11.2018 convicted Ansar Abbas alias Pakori son of Karam Hussain (appellant) and sentenced him as infra:- Ansar Abbas alias Pakori son of Karam Hussain: Rigorous Imprisonment for six years unde r section 9(c) of Control of Narcotic Substances Act, 1997 and directed to pay fine of Rs.40,000/- and in default thereof to further undergo Simple Imprisonment for six months.
The appellant was however , extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)"
2. Feeling aggrieved Ansar Abbas alias Pakori son of Karam Hussain (convict) lodged the instant Criminal Appeal No.1089 of 2018 against his conviction and sentence challenging the judgment dated 24.11.2018 passed by the learned Additional Sessions Judge, Rajanpur , whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of Control of Narcotic Substances Act, 1997 (herein after referred to as "the Act") as mentioned above.
3. Precisely the facts necessary , as divulged in the statement of Kazim Hussain, SI (PW -4) are as under:- "On 04.08.2014 I was posted as SI at police Chowki City Fazilpur of P.S Fazilpur . On the same date, I alongwith Saif Ullah ASI, Ghulam Shabbir ASI, Sajjad Hussain ASI, Shahid Hussain 561/C and Aman Ullah 723/C on official vehicle driven Ghulam Asghar 72/C were present at hospital chowk Fazilpur in connection with patrolling and prevention of crime. In the meanwhile a spy informer came there and informed me that Ansar Abbas alias Pakori accused present in the court is narcotic dealer and is going towards his house at Ahmed Saad cotton factory bye- pass road having Charas with him and if raid is conducted, he can be apprehended red handed. On this information, we conducted a raid and on reaching eastern side of Ahmad Saad cotton factory , we saw accused Anas Abbas present in court having a shopper bag of yellow colour with him. On seeing the police party accused tried to flee away but he was apprehende d. On searching shopper , a black coloured bag was recovered in which Charas was available. On weighing the said Charas it was found as 1062 grams. Out of the recovered Charas, 100 grams was separated for chemical analysis. Two sealed parcels were prepared. On shopping bag P-1 one hand bag P-2 alongwith Charas P-3 were taken into possession vide recovery memo Ex.P-B On personal search of accused, mobile phone Nokia P-4, cash amount of Rs.560/- in shape of one note of 500, one note of 50 and one note of 10 P-5, P-6 and P-7 respectively were also recovered which were also taken into possession through the same recovery memo Ex.P-B. The recove ry memo was duly attested by the P.Ws. I drafted complaint Ex.P-C and sent the same to police station through Aman Ullah 723/C for registration of formal FIR. I recorded statements of witnesses u/s161 Cr.P.C., I also prepared rough site plan of the place of recovery Ex.P-E. I arrested the accused accordingly and interrogated him. Then I went to police station and handed over case property to the Muharrir and put the accused in police lock up. On the next day, I produced accused Ansar Abbas before the court of Area Magistrate and then got sent him to judicial remand. On 09.08.2014 I recorded statements of Falak Sher 736/HC and Shahid Hussain 561/C under section 161 Cr.P.C. Then I handed over the case file to SHO for preparation of report u/s 173 Cr .P.C. During my investigation accused was found to be involved in this case."
4. On the above stated facts FIR No.492 of 2014 (Exh.P A) dated 04.08.2014 was registered at Police Station Fazil Pur, District Rajan Pur , in respect of an of fence under section 9(c) of Control of Narcotic Substances Act, 1997
5. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant was sent to face trial. The learned trial court framed the charge against the accused on 05.12.2014 under sections 9(c) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial.
5. In order to prove the facts the prosecution examined as many as five witnesses . Kazim Hussain, SI (PW-4) and Sajjad Hussain, ASI (PW-5) appeared as the witnesses of the recovery of narcotics. Muhammad Iqbal, ASI (PW-1) recorded the formal FIR (Exh.P A). Falak Sher 736/HC (PW-2) stated that on 4.8.2014, he received two sealed parcels from the Investigating Officer and on 06.08.2014, he handed over one sealed parcel to Shahid Hussain 561/C (PW -3) for its onward transmission to Punjab Forensic Science Agency , Lahore.
6. On 20.06.2017, the learned DDPP gave up PW Saif Ullah, ASI as being unnecessary . On 24.10.2018, learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore as (Exh.PE), certified copy of report under section 173 of the Cr.PC of case FIR No. 439 of 2012 along with copy of judgment dated 04.6.2013 ((Exh.PF) and certified copy of report under section 173 of the Cr.PC of case FIR No. 464 of 2012 along with copy of judgment dated 04.02.2012 (Exh.PG).
7. After closing of prosecution evidence the statement of appellant was recorded under section 342 of Code of Criminal Procedure, 1898 and the appella nt pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution case being subordinate to the Investigating Officer. The appellant opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 however , produced Bilal Ahmad (DW -1) in his defence.
8. After completion of evidence and hearing both the parties the learned trial court held the appellant guilty of offence and sentenced the appellant as referred to above.
9. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that there were glaring contradi ctions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant and pleaded for acquittal of the appellant.
10. On the other hand learned Deputy Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other . He requested that the appeal be dismissed.
11. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
12. At the very outset, we have noticed that Kazim Hussain, SI (PW -4), during cross-examination, stated as under:- "The Charas was recovered in form of flat slaps (sic)which were three in number and all there pieces were stuck to each other , I did not mention the above form of recovered Charas in complainan t. I took the sample from every corner of recovered Charas, however , I did not collect the sample separately from all three slaps (sic) as they were stuck to each other ."
Similarly , the other witness to the recovery of the contraband namely Sajjad Hussain, ASI (PW-5), during the cross- examination also admitted as under:- "The Charas was recovered in form of three slaps (sic) which were attached to each other ."
Sajjad Hussain, ASI (PW -5) during the cross-examination further stated as under:- "The case property (Charas) which is available in court in sealed position is in the form of folded slaps (sic)."
It is a fact that only one sealed sample parcel was prepared out of the recovered Charas. The august Supreme Court of Pakistan had enunciated the principle in the case of Abdul Hameed v. The State (2016 SCMR 707) as under:- "According to the prosecution Abdul Hameed appellant was apprehended at a time when he was traveling in a vehicle and was carrying a bag containing 44 kilograms of charas which was packed in 44 separate packets weighing one kilogram each. The record of the case shows that instead of taking 44 separate samples of the recovered substance only one consolidated sample weighing 200 grams had been separated from the recovered substance which sample had subsequently been tested positive by the Chemical Examiner . In view of the law declared by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) only one kilogram of charas could have been considered against the appellant for the purposes of his conviction and sentence. In this view of the matter this appeal is partly allowed, the conviction of the appellant for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 is converted into his conviction for an offence under section 9(b) of the said Act and his sentence is reduced to rigorous imprisonment for one year and nine months and a fine of Rs.13,000/- (Rupees thirteen thousand only) or in default of payment thereof to undergo simple imprisonment for four months and fifteen days. The benefit under section 382-B, Cr .P.C. shall be extended to the appellant."
In this case too the recovered Charas was in shape of three slabs as admitted by both the witnesses of the recovery namely Kazim Hussain, SI (PW-4) and Sajjad Hussain, ASI (PW 5). Instead of taking separates samples of the recovered substance from each piece, only one consolidated sample was taken from the recovered substance and that too from one piece, which sample has subsequently been tested positive by the Punjab Forensic Science Agency , Lahore. The august Supreme Court of Pakistan in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380) has 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, wrap per 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 substa nce is to be considered against the accused person from which a sample was taken and tested with a positive result."
In the case in hand Charas in three slabs had allegedly been recovered from the appellant's possession but according to the prosecution only 100 Grams was taken as a sample which was thereafter sent to the Punjab Forensic Science Agency , Lahore for analysis. Stringent sentences have been provided for the offences under the Control of Narcotic Substances Act, 1997 as such heavy onus lies on the prosecu tion to prove the exact weight of the recovered "Charas ". It is an admitted position that Kazim Hussain, SI (PW-4) , the Investigating Officer of the case who prepared the recovery memo (Exh.PB) and the complaint (Exh.PC) did not weigh the three slabs of the recovered "Charas " during the investigation. Similarly during the trial the said three slabs of the recovered "Charas " were not weighed separately . We, in the circumstances are unable to determine the weight of each of the three slabs of the recovered "Charas ". The prosecution case is also not clear as to from which of the three slabs of the recovered "Charas ", the sample parcel was prepared. In absence of this certainty the prosecution case cannot be believed with respect to the weight of the recovered "Charas " being 1062 grams which had statedly been recovered from the appellant's possession. We are constrained to hold, in the circumstances of the case and the evidence available on record, that the prosecution has only been able to prove that 100.57 grams of "Charas " was recovered from the possession of the appellant, this being the weight of "Charas " which was received at the Punjab Forensic Science Agency , Lahore. For safe administration of justice it may be concluded that the appellant was liable to be held responsible for having 100.57 gram s of "Charas" in his possession, which weight of recovered contraband attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997. In this view of the matter this appeal is partly allowed, the conviction of the appellant recorded by the learned trial court for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 is converted into one under section 9(b) of the said Act and applying the sentencing policy of this Court laid down in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), the appellant is sentenced to rigorous imprisonment for one year and three months and directed to pay a fine of Rs.9,000/- (Rupees nine thousand only) or in default of payment thereof to undergo simple imprisonment for fifteen days. This appeal is disposed of in these terms.
13. The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately .