MUHAMMAD HASHIM KHAN KAKAR, C.J.
Appellant, namely Muhammad Qasim son of Twano was surprised by a contingent of Police Station Killa Saifullah, on patrol and found in possession of 50 kilogram Charas. Contraband was secured vide inventories and FIR No.67/2022 dated 16.11.2022 under section 9 (c) of Control of Narcotic Substances Act, 1997 ("CNS Act"), punishable under column 3 (e) of section 9 of CNS Act was registered with Police Station Killa Saifullah. Upon conclusion of trial, the appellant was returned a guilty verdict by the learned Special Judge Control of Narcotic Substances Act, 1997 Killa Saifullah ("the trial Court") vide the impugned judgment dated 22.08.2023; convicted under section 6 of the Control of Narcotic Substances Act, 1997, and was sentenced under column 3 (e) of section 9 of Control of Narcotic Substances (Amendment) Act, 2022 to suffer rigorous imprisonment for 20 years with fine of Rs.8,00,000/- (rupees eight lac only), in default of which the convict shall further undergo for a period of six months S.I. with benefit of section 382-B of the Code of Criminal Procedure, 1898 and this brings him to this Court.
2. It has been argued by the learned counsel for the appellant that all the packets containing 50 kg Charas were sent for chemical examination and only 01 kg was examined and no sample were taken from the remaining 49 kgs. He further submits that the case against the appellant is only for the possession of one kg. In support of his contention, he relies upon the case of 'Muhammad Hashim v. The State (PLD 2004 SC 856) and submits that the Hon'ble Supreme Court in such cases has reduced the sentence from life imprisonment in years according to the proportionate recovery.
He submits that he will not challenge the impugned judgment and conviction awarded to the appellant but in view of the recovery of 01 Kg. Charas from him and in pursuance of aforementioned case law his sentence be reduced and sentence of fine also be remitted as he is very poor and the sole breadwinner of his family.
3. It is by now established that where narcotics are recovered in different packets, wrappers, or in separate physical forms such as cakes or slabs, it is imperative that a separate sample is taken from each distinct unit as representative sample for chemical analysis. If the principle of representative sample is not adhered to, then only the quantity of the narcotic substance from which a simple was taken and tested with a positive result can be considered for the purpose of conviction. The Apex Court in the case of Ameer Zeb (PLD 2012 SC 380) has categorically elaborated the principle of representative sample in narcotic cases and held as under: "8. 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 person from which a sample was taken and tested with a positive result."
4. Admittedly, the case before us pertains to the recovery of 50 Kgs of Charas from the vehicle of the appellant contained in 95 separate packets. As per prosecution case, the entire quantity of narcotics was sent to the Forensic Science Laboratory (FSL) for analysis, however, the record shows that only 01 Kg. of the said Charas was consumed for the purpose of analysis and there is no evidence on record to show that samples were taken from each individual slab of the recovered Charas. Hence, principle of representative sample was not complied with by the Investigating Officer during recovery proceeding. Furthermore, the FSL report is also silent about representative sample taken from each 95 packets.
5. Keeping in view the above legal precedent and considering the facts of the present case, it is clear that the prosecution has failed to discharge the initial onus of proving that the entire 50 Kg. of substance recovered was, in fact, Charas, as only 01 Kg. was tested. Therefore, the appellant cannot be held liable for the entire quantity of the substance recovered, but only for the quantity that was tested and confirmed to be Charas. Thus, the confirmed 01 Kg. substance cannot be held to be representative sample for all the recovered substance of 50 Kgs.
6. The learned State counsel, after going through the FSL report, also confirmed that only 01 kg charas was tested and no samples were taken from the remaining packets containing 49 kg substance and he frankly conceded that the sentence awarded to the appellant be reduced.
In view of the above facts, we dismiss this appeal and maintain conviction, however, the substantive sentence is reduced from 20 years to 9 years and the fine is also reduced from Rs.8,00,000/- to Rs.80,000/- only. The benefit of section 383-B Cr.P.C already extended to the appellant will remain intact. In default of payment of fine, to further suffer two months S.I.##TEs## Above are the reasons of our short order dated 01.08.2024.