1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The appellant is facing trial in the Special Court Control of Narcotic Substances, Karachi Division, in F.I.R. No,32 of 2001 under sections 6, 7, 8, 9, 12, 13, 14, 15 and 37 of the Control of Narcotic Substances Act, 1997.
2. ' Briefly stated the prosecution case is that 4 kilograms of Charas was recovered from the possession of applicant/accused comprising pieces.
3. ' The learned trial Court rejected, the bail plea for the reasons that the charge against the applicant has been framed under section 9(c) of the C.N.S. Act, 1997, which is punishable with death or imprisonment for life or for the sentence which may extend to 14 years.
4. ' Being aggrieved, the applicant has submitted this bail application, before this Court.
5. ' Heard Mr. Amir Saeed, learned counsel for the applicant and Mr. Shoaib M. Ashraf, Advocate for the State.
6. ' The contention of the learned counsel for the applicant is that although according to Mashirnama 4 Kgs. Of Charas is alleged to have been recovered from the possession of applicant, but out of total alleged recovery, only 200 grams of Charas was taken as sample and separately sealed for chemical examination and test and the remaining material was separately sealed, which was not sent to Chemical Examiner, therefore, A the culpability of the applicant is confined to the recovery of 200 grams of Charas only, which brings the offence within the purview of section 9(b) of the C.N.S. Act, 1997. This section provides maximum sentence of 7 years. The offence under section 9(b) of the C.N.S. Act, 1997 does not fall within the prohibitory clause and therefore, the applicant is entitled to be released on bail.
7. ' In support of above contention, the learned counsel has placed reliance on a Division Bench judgment of this Court in' the case of Shahmore v. The State PLD 2003 Kar.
8. 230.
9. ' On the other hand, the learned counsel for the State, has submitted that the Division Bench judgment of this Court in the case of Shahmore v. The State (supra) is not to be followed for the reason that proper assistance was not provided to the learned members of the Division Bench. He has pointed out that in the case of Shahmore (supra) reliance has been placed on a Division Bench judgment of Peshawar High Court in the case of Farid Gul v. The State 2002 PCr.LJ 1810. He has contended that tht earlier judgment of Honourable Supreme Court containing the contrary view was not brought to the notice of learned Judges of the Peshawar High Court who delivered the judgment in the case of Farid Gul, and learned Judges of the Division Bench of this Court in the case of Shahmore. According to him the contrary view is contained in the judgment of Honourable Supreme Court in the case of Nadir Khan and others v. The State 1988 SCM R 1899 and has been reiterated by the Honourable Supreme Court in a recent judgment in the case of Ali Muhammad and another v. The State 2003 SCM R 54, whereby another Division Bench judgment of this Court, containing the view contrary to the opinion contained in the case of Shahmore has been upheld.
10. ' We have carefully considered judgments referred to by the learned Advocates for the parties.
11. ' In the case of Farid Gul v. The State, the leaned Division Bench of Peshawar High Court has held as follows:-- "16. Out of 45 packets, each containing 1 Kg. Of Charas admittedly sample of 4 grams was taken from only one packet. The preponderance of the case-law produced before us is to the effect that where the sample from only one of the many packets recovered is sent to the laboratory and the result is positive the accused can be found guilty only as regards that packet. The culpability of the appellants can, therefore, only he regarding one packet, from which the samples were taken. Since each packet, according to the prosecution case weighed 1 Kg. This would bring the case against the appellants under section 9(b), C.N.S.A. Which provides for 7 years' imprisonment and fine if the narcotics drug does not exceed 1 Kg."
12. ' A perusal of the above findings shows that the learned Judges of the Peshawar High Court have observed that the preponderance of the case-law produced before them is to the effect that where the sample from only one of the many packets recovered is sent to the laboratory and the result is positive the accused can be found guilty only as regard, that packet. However, the learned Judges have not referred to the judgments produced before them and consequently we feel handicapped in appreciating the observations. We have not been able to lay hand on the judgments which were produced before the Peshawar High Court in support of the contention.
13. ' The learned members of the Division Bench of this Court while dealing with the case of Shahmore (supra) referred to the observations/findings of the Peshawar High Court in the case of Farid Gul without adverting to the earlier judgments on which the findings in the case of Farid Gul is based and thereafter considered the facts in the case of Shamore. In the cited case as cloth bag containing 246 stripes was recovered. The total weight of the entire Charas was 2200 grams and according to Mashirnama a small quantity of each strip, total weighing 200 grams was taken as sample, while remaining was sealed separately. On appreciation of facts the contention of defence counsel was accepted that prosecution has failed to establish that sample from each of the said strips was taken out and therefore, the accused could be saddled with the responsibility of being in possession of 200 grams of Charas only. The learned Division Bench thereafter held as follows:-- "The prosecution evidence having been carefully studied, it appears that the arguments of learned counsel for the appellant carry much force. Wherever the entire quantity of the Narcotic Substance is not recovered/secured as a bulk, but the recovery thereof comprises of strips or any other form comprising of pieces, then the recovery official would always be duty bound to take out sample from each and every strip/piece of the recovered material for referring the same to the Chemical Examiner to arrive at a safe conclusion that all such strips actually comprised of narcotic substances, and to exclude all possibilities of doubt as to any such strip/portion of recovery material was not of narcotic substances. Such is the essential requirement of sound principles governing the safe dispensation of criminal justice, which having not been complied with, the appellant has become entitled to the benefit thereof, only to the extent that the quantity recovered from his possession would be of only 200 grams and not of 2200 grams for the purpose of recording of sentence, and such a benefit is hereby extended to the appellant."
14. ' On the other hand, the Shariat Appellate Bench of the Honourable Supreme Court took different view in the case of Nadir Khan v. The State 1988 SCM R 1899. In this case 49 Kgs. Of heroin was recovered from the rear seat and other secret cavities of the car, being driven by one accused, while the other accused was sitting in the car. A plea was taken before the Honourable Supreme Court that, samples were not taken from each of the 49 bags recovered, nor was there any evidence of connecting the samples taken with the report of Chemical Examiner, because the officials who took it to the Chemical Examiner had not been examined.
15. ' The Honourable Supreme Court repelled all the contentions and held that the petitioners had the charge of vehicle, therefore, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The Honourable Supreme Court further held as follows:-- "It is not necessary to take samples from every one of the packets and the required evidence has been produced to connect the report with the sample notwithstanding the omission to produce the carrier of the sample."
16. ' The life imprisonment awarded to the petitioners was upheld and the leave to appeal was refused.
17. ' The point in issue again came for consideration before the Honourable Supreme Court in the case of Ali Muhammad v. The State 2003 SCM R 54. In this case a similar plea as taken before us, was repelled by a Division Bench of this Court sitting at Sukkur. The issue was taken in appeal before the Honourable Supreme Court. A plea was inter alia taken to the effect that out of 20 slabs weighing half kilogram each recovered from the possession of accused, one slab was sealed and sent to Chemical Examiner while rest 19 slabs were sealed separately and were not sent to Chemical Examiner, therefore, the culpability of the accused was confined to the extent of one slab only weighing half kilogram, therefore, the offence alleged fell within the purview of section 9(b) of the Control of Narcotic Substances Ordinance, 1975 and not under section 9(c) thereof. The maximum sentence which could be awarded was 7 years only and the sentence of life imprisonment was not sustainable.
18. ' The Honourable Supreme Court dealt with the issue in detail and held as follows:-- "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.
19. 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 contents 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 examined. 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.
20. 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 years 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/contents 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 a content 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.
21. Accordingly we find no merit in this appeal and the same is dismissed."
22. ' After the elaborate findings/observations of the Honourable Supreme Court laying down the proposition of law and providing detailed guidance pertaining to the issue under consideration, we are of the opinion that any further discussion would be unnecessary and futile. After going through the judgments of Honourable Supreme Court in the case of Nadir Khan and Ali Muhammad relied upon by Mr. Shoaib Ashraf, learned counsel for the State, we are persuaded to agree with the submission that the learned Division Benches, of the Peshawar High Court and the Sindh High Court were not properly assisted by the respective State Counsel, while deciding the cases of Farid Gul and Shahmore. In view of the authoritative and binding pronouncement of Honourable Supreme Court in the two judgments referred to above, we are of the opinion that the ratio of the judgments of Honourable Supreme Court shall prevail over the judgments of Division Benches of the Peshawar and Sindh High Court in the case of Farid Gul and Shahmore. Respectfully following the dicta laid down by the Honourable Supreme Court in the cases of Nadir Khan and Ali Muhammad, it is held with all due deference and respect to the learned members of the Division Bench of Peshawar High Court and Sindh High Court, that the law laid down in the case of Farid Gul and Shahmore being contrary to the view held by Honourable Supreme Court is not to be followed. At this juncture, we would like to clarify that in order to overrule a Division Bench judgment of this Court in the case of Shahmore, no reference is required to be made for the constitution of Full Bench, for the reason that it is not a case of differing of one Division Bench, with the judgment of another Division Bench, already delivered, but it is a simple case of following the principle of law enunciated and laid down by the Honourable Supreme Court, qua .The following of ratio of a judgment by Division Bench of this Court. By virtue of the provisions contained in Article 189 of the Constitution of Islamic Republic of Pakistan, any decision of the Supreme Court shall to the extent that it decides the question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. No emphasis is required on the point that the decisions of the Honourable Supreme Court are binding on and the High Courts as well as any view contrary to the decision of Honourable Supreme Court, must give way to the decision of Honourable Supreme Court.
23. ' For the foregoing reasons, we respectfully follow the decisions of the Honourable Supreme Court in the cases of Nadir Khan and Ali Muhammad and are not persuaded to agree with the view held by the Peshawar High Court and Sindh High Court in the cases of Farid Gul and Shahmore. The contention of learned counsel for the applicant is repelled. The bail application stands dismissed accordingly.
24. ' After hearing learned Advocates for the parties on 11-6-2003, the bail application was dismissed by a short order. These are the detailed reasons in support thereof.