Raja Shahid Mehmood Abbasi, J.--Through this Crl. Appeal No. 601 of 2020, appellant-convict Shahbaz Arif assails the vires of judgment dated 09.09.2020 passed by the learned Sessions Judge/Judge Special Court, Rawalpindi, in case F.I.R No. 62, dated 09.05.2018, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 at Police Station ANF, Rawalpindi, whereby the appellant was convicted under Section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced to R.I. for seven (07) years with a fine of Rs.
50,000/-. In default thereof, to further undergo seven (07) months S.I. However , benefit of Section 382-B, Cr.P.C. was extended in his favour .
2. Succinctly , the allegation as per FIR is that on 09.05.2018, at about 05:30 am when Faizan Khawaja SI was present at Police Station ANF-RD North Rawalpidni, he received spy information that one Shahbaz Arif (appellant) having narcotics will fly through flight EK-0613 to Saudi Arabia. Upon this, he along with Muhammad Niaz Constable on official vehicle with driver Shahid Iqbal at about 06:45 am arrived at Islamabad international Airport and went to ANF counter in International Briefing Hall of the said Airport where ANF officials were already present.
At about 07:00 am when a person with travelling documents, trolley bag of brow n colour and hand bag of multi colour , namely Shahbaz Arif, arrivated at ANF counter . Upon certain queries he disclosed about the presence of countraband/herion in his luggage and on search of his hand bag, three packets of polythene; in one packet there was Heroin of yellow colour which on weight with packing material was 1050 grams; in second packet there were 118 capsules on cutting of which Heroin of yellow colour was found and with packing material its weight was found 730 grams; and opening of third packet, there were 80 capsules and on cutting of the same off white colour Heroin weighing 510 grams was recovered. 10-grams were separated from each recovere d packets for chemical analysis and the recovered heroin (P1/1-3) was made into three independent sealed parcels and similarly three parcels of samples were also prepared. Whereas passport (P2), air ticket (P3) and bag (P4) were taken into possession vide memo. Ex.PB. Hence, the FIR.
3. After formal investigation, report under Section 173 of the Criminal Procedure Code, 1898 was prepared and submitted before the trial Court. The appellant was sent up to face the trial after delivering the copies of the documents in terms of Section 265-C of the Criminal Procedure Code, 1898, the trial. Court framed the charge against the appellant, to which he pleaded not guilty and claimed trial. At the trial the prosecution examined five witnesses to bring home the guilt of accused namely Shahbaz Arif. Shahla Javed SI was examined as PW.1, Muhammad Ilyas HC as PW.2, Muhammad Ijaz Constable (PW.3). Muhammad Faizan Khawaja SI (PW.4) and Shahzada Irum Constable (PW.5) The prosecution gave up Ayyaz Khan, Constab le being unnecessary and after tendering in evidence reports of National Institute of Health/NM, Islamabad (Ex.PE to Ex.PG), closed its evidence.
4. The statement of appellant was recorded under Section 342, Cr,P,C,, wherein he refuted the allegation leveled against him and professed his innocence. The appellant did not opt to make statement on Oath as required under Section 340(2), Cr ,P,C, however , he produced copy of FIR as Mark.A in his defence.
5. After completion of evidence from both the sides, the, learned trial Court, after holding the appellant guilty of the offence, convicted him as mentioned in preceding paragraph No. 1 above.
6. Learned counsel for the appellant at the very out set contends that he would not press this appeal on merit and prays for reduction of sentence to undergone by the appellant simply on the ground that he is first offender and never remained involved in such like cases; that according to the crime report Ex.PA as well as statements of the prosecution. witnesses, from the second packets of contraband 118 capsules were recovered whereas only one consolidated sample was sent to chemical analysis. Likewise, from the third pack et 80 capsules were recovered whereas only one consolidated sample was prepared, hence, the quantum of sentence is not in consonance with the law declared by the Hon'ble Supreme Court of Pakistan in case of Ameer Zaib vs. The State (PLD 2012 SC 380).
7. When confronted with this legal proposition, the learned Special Prosecutor for ANF to this effect has frankly conceded that the consolidated samples were taken from the two packets containing capsules. He, however , submitted that the learned trial Court has rightly convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.
8. We have heard learned counsel for the parties and perused the record with their able assistance. In the light of arguments advanced by the learned coun sel for the appellant, we will confine ourselves to the extent of proposition in hand in order to see as to whether the principle laid down in Ameer Zaib's case are attracted to the case in hand or not. According to the prosecution's own case while the appellant Shahbaz Arif was apprehended by ANF officials at Islamabad International Airport, three packets of polythene were recovered from his hand bag. In one packet heroin of yellow colour which on weight with packing material was found 1050 grams. Out of which, a sample of 10 grams was separated for the purposes of chemical analysis. In second packet there were 118 capsules, on cutting of same Heroin of yellow colour weighing 730 grams was recovered which was amalgamated and a consolidated sample of 10 grams was prepared. Likewise, upon opening of third packet, 80 capsules were recovered containing, off white color Hero in weighing 510 grams from which a consolidated sample was prepared.
All the three prepared samples were subsequently transmitted to the National Institute of Health/NIH, Islamabad, which were tested positively . The learned counsel for the appellant has not seriously pressed this appeal to the extent of conviction of the appellant on the charge of offence under Section 9(c) of the Control of Narcotic Substances Act 1997, which otherwise has been successfully proved by the prosecution through the statements of Muhammad Faizan Khawaja (PW.4) who is complainant as well as Investigating Officer of this case and attesting witness of recoveries effected from the appellant i.e. Shahzada Irum Constable (PW.5) coupled with the reports of National Institute of Health/NIH, Islamabad (Ex.PE to Ex.PG), therefore, conviction of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, is maintained.
9. So for as the submission of the learned counsel for reduction in sentence of the appellant is concerned, the same can easily be answered in the light of famous judgment of the Hon'ble Supreme Court of Pakistan in Ameer Zeb's case (PLD 2012 SC 380). While dealing with an identical proposition, the apex Court referred to many case- law on the subject and concluded 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 he 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 substance is to be considered against the accused person from which a sample was taken and tested with a positive result"
10. We have observed that three packets of polythene were recovered from the appellant. From first packet Heroin of yellow colour weighing 1050 grams was recovered whereas from the second packet 118 capsules, on cutting the same Heroin weighing 730 grams was recovered which was amalgamated and similarly from the third packet 80 capsules, on cutting the same Heroin weighing 510 grams was recovered which was also amalgamated. Ten (10) gram from each packet was sent for chemical analysis. It was duty of the Investigating Officer to secure separate samples from each of the recovered capsule and then transmit the same to the concerned laboratory for the purposes of chemical analysis but said exercise was not done in this case as the I.O. on cutting the capsules amalgamated the Heroin and sent for chemical analysis, therefore, he has violated the guidelines provided by the Hon'ble Supreme Court of Pakistan in the case of Ameer Zeb vs. The State (PLD 2012 SC 380). In the case in hand, only two consolidated samples of 10/10 grams had been separated from the second and third packet and tested. In this way the appellant can only be held responsible for possessing 1050 grams for first packet and 10/10 grams for the remaining two packets (total 1070 grams) only, which as per reports (Ex.PE to Ex.PG) was found to be heroin.
11. For what has been discussed above, it is a fit case for reduction of quantum of sentence of appellant Shahbaz Arif, therefore, keeping in view the sentencing-policy as enshrined in "Ghulam Murtaza and another v. The State" (PLD 2009 Lahore 362), the conviction of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 is maintained, however, his sentence is reduced from seven (07) years to six (06) years.
Similarly , the sentence of fine of the appe llant is also reduced from Rs. 50,000/- to Rs. 30,000/-, in default whereof to undergo simple imprisonment for six months with benefit of Section 382-B, Cr .P.C.
12. With the above modification in the sentence of the appellant, Criminal Appeal No. 601 of 2020 stands dismissed .