' HAMID ALI MIRZA, J.---This criminal appeal with leave of the Court is directed against the judgment dated 1-12-1999 in Criminal Appeal No,16 of 1999 (Ali Muhammad and another v. The State) passed by learned Division Bench of the High Court of Sindh, Bench' at Sukkur, whereby the said appeal was dismissed maintaining the conviction and sentence under section 9(c) read with section 15 of Control of Narcotic Substances Ordinance, 1995 passed by learned Special Court for Control of Narcotic Substances, Jacobabad as per judgment dated 25-2-1999.
2. Brief facts of the case are that on 25-4-1996 S.H.O Qurban Ali Soomro in company of PCs Sher Ahmed, Punhal Khan and Ali Khan apprehended appellants and from their possession with the help of lady constable Khurshid Begum on search of the person of the appellant Mst. Rani twenty slabs/cakes of Charas were recovered from her vest-coat below her shirt which on weighment were found to be ten kilograms. Out of the twenty slabs, one slab after sealing was sent to the Chemical Examiner while rest nineteen slabs were also sealed separately as per memo. Of recovery in presence of Mashirs. After usual investigation both the appellants were sent up for trial before the Court. Both the appellants denied the charged offence, therefore prosecution examined P.W.1 Sher Ahmad, P.W.2 Qurban Ali, P.W.3 Khurshid Begum and the appellants were examined under section 342, Cr.P.C. Who claimed to be innocent and stated that they have been falsely implicated in the case when appellant Ali Muhammad also examined in defence D.W.I Muhammad Juman Gurgej. The trial Court after hearing the counsel for the parties and after assessment of evidence on record convicted the appellants under section 9(c) read with section 15 of the Control of Narcotic Substances Ordinance, 1995 and sentenced them to life imprisonment and each of the accused was also ordered to pay fine of Rs,one million and in case of default to undergo R.I. :or two years. The appellants preferred Criminal Appeal No,16 of 1999 before :the High Court of Sindh, Bench at Sukkur, which was heard by learned Division Bench and was dismissed as per impugned judgment against which petition for leave to appeal was preferred before this Court wherein leave was granted to consider:- "Whether in the facts and circumstances of the case, the impugned judgment does not suffer from misreading of evidence of the record having the potentialities of creating doubt in relation to accused Ali Muhammad and Mst. Rani?"
3. We have heard learned counsel for the appellants and perused the record.
4. The contentions of the learned counsel for the appellants are that the prosecution could not prove the recovery of ten kilograms of Charas from the appellants which was impossible to carry when the appellant Mst. Rani was also carrying child in her lap (ii) that only one slab of Charas was sent to the Chemical Examiner which too was sent after long delay, therefore it could not be said that recovered substance was Charas, and (iii) further that if it be assumed that one slab weighing half kilogram was recovered from the appellant then sentence could not exceed beyond seven years.
5. We do not find substance and merit in the said contention.
6. P.Ws. Sher Ahmad, (ii) Qurban Ali and (iii) Khurshid Begum have deposed that twenty cakes of Charas were secured from the vest-coat under shirt of appellant Mst. Rani which weighed ten kilograms and that appellant Ali Muhammad was financier, associate and closely related to the appellant Mst. Rani. Each cake was half kilogram and such memo. Of recovery Exh.20 was prepared in presence of Mashirs. The said P.Ws. Were examined at length but their testimony could not be discredited or shaken, which testimony was found to be confidence-inspiring. So far the contention that the appellant Mst. Rani could not be able to carry ten kilograms of Charas on her person when she was also carrying her child in her lap, which contention was held by the High Court to be without force when such practical demonstration was conducted in Court for that purpose appellant Mst. Rani was called in the Court alongwith case property and the said vest-coat was worn by her with case property and the Court found that the appellant Mst. Rani could carry said quantity of Charas on her person in the vest-coat. The High Court in the impugned judgment in para.8 has observed as under:-- ' "Adverting to the first contention of the learned counsel for the appellants, as we entertained some doubt about the capacity of the lady appellant to carry twenty cakes of Charas, weighing 'ten kilograms in her waist-coat under her shirt, after partly recording the judgment but before finalizing it, sent for the appellants from their respective prisons as well as the case property. Accordingly appellants as well as the case property were produced before us in the Court when we unsealed the packet containing 19 cakes of Charas as well as the waist-coat which contained small pockets for containing cakes of Charas. From her physique and health we were satisfied that the appellant could contain the amount of Charas in the waist-coat on her person under the shirt and it was not improbable for her to carry out this quantity of Charas as was found by the police party at Jacobabad. The circumstance that the appellant was also carrying her small child aged about one year in her lap also did not appear to be unsurmountable hurdle in proceedings with the quantity of Charas on her person. On the facts stated it appears that the lady appellant was probably hired by some drug-trafficker as otherwise in the normal course of business women in this part of the country do not generally indulge in such nefarious and anti-social crimes. This view which may not be wholly correct, finds further support from the fact that she was accompanied by appellant Ali Muhammad who in his statement before the trial Court described her as his sister whereas on our questioning in open Court at the time of hearing final arguments, he described her as his 'Khala'
(aunt). This association was most probably found necessary to provide a shelter and protection to the lady, should she come across a difficult situation. At any event we felt satisfied that it was not humanly impossible to carry ten kilograms of Charas for the lady appellant for monetary consideration or otherwise."
7. So far the next contention that only one cake/slab was sent to the Chemical Examiner for examination and that too was' sent after long delay therefore the prosecution has failed to prove that it was narcotic substance. We also do not find substance and merit in the said contention,' considering the defence of the appellant was that the said contraband was not recovered and it- was not the defence plea that the so recovered substance was not a contraband or Charas, therefore it could not be said that the prosecution has failed to prove that the substance so recovered was not Charas or narcotic substance in view of the Chemical Examiner's report Exh.25.
Even the appellant has not suggested to the P.Ws. So examined by the prosecution that the substance so recovered was not Charas or contraband or that the substance so recovered was foisted or planted upon the appellant. Delay in sending the sample for examination to the chemical examiner in the circumstances of case per se would not be sufficient to discredit or disbelieve the Chemical Examiner's report who had opined that the sample so sent to him was Charas or contraband/narcotic substance. It would. Not necessary in view of the circumstances of the case to have sent the entire case property for examination to the Chemical Examiner considering that the appellants never challenged that the substance so recovered was not narcotic substance, and if the appellants would have challenged the contains of the case property to be not narcotic substance, then it would have been necessary for the prosecution to have sent the entire case property so recovered for chemical examination to the examiner. Reference may be made to the decision of this Court in Nadir Khan and another v. The State (1988 SCM R 1899), wherein part of the contention of the learned counsel for the appellants was that the samples were not taken from each of 49 bags recovered, nor there was any evidence to connect the samples taken from the case property recovered from the car driven by the appellants with the report of the chemical examiner. It was observed by this Court in the (supra) judgment at page 1902 that it was not necessary to take samples from every one of the packets as the required evidence has been produced to connect the report with the case property.In the instant case one slab out of the entire case property recovered was sent to the Chemical Examiner who opined that the said sample was Charas viz. Narcotic drug/substance and the rest of the case property was produced in the Court which was identified by the P.Ws. To be the same recovered from the appellant Mst. Rani from her person. The P.Ws. When examined were even not suggested by the learned counsel for the appellants that the remaining property produced in Court was not the same or that it was tampered with. The appellants also did not pray before the trial Court or High Court that entire case property be sent to Chemical Examiner for report as to challenge that entire case property was not narcotic substance/drug. It would be just and proper that reasonable quantity of narcotic drug/controlled substance is sent to Chemical Examiner for analysis considering that in some cases the case property could be in thousand of tons which could cause great hardship, inconvenience in sending and transporting the same and would also cause delay in getting the report, so also in disposal of cases. Therefore, the said contention raised before us would have no merit and substance.
8. So far the next contention of the learned counsel for the appellants that if it be assumed that one slab of Charas weighing half kilogram which was sent to the Chemical Examiner for examination was recovered from the appellants then also sentence could not have been imposed beyond seven year s in view of section 9(b) of the Control of Narcotic Substances Ordinance, 1995. We do not find substance in the said contention also. Recovery of ten kilograms of Charas from the appellants has been proved beyond doubt on the basis of confidence-inspiring evidence produced by the prosecution. As observed above the appellants never challenged the nature/contains of substance being not Charas or narcotic. The appellant cannot now turn around and say that because only one slab of half kilogram was recovered which was sent to Chemical Examiner who opined it to be Charas therefore appellants be sentenced according to the quantity sent to the Chemical Examiner. In case the appellants' defence would have been that contains of entire case property so recovered was not Charas they could have made an application to the trial Court or before the High Court for reexamination of the entire case property which was also produced in the trial Court as Article 'A' having not done so, such plea cannot be said to have merit and substance considering also that the said plea being plea of the fact, would require detailed enquiry and re-examination of the narcotic substance which cannot be gone into by this Court at this stage.
9. In view of aforesaid reasons we find no reason to disagree with the finding of trial Court and High Court on the point of recovery of ten kilograms Charas and the quantum of sentence imposed.
Accordingly we find no merit in this appeal and the same is dismissed.