AZIZULLAH M. MEMON, J.--Appellant Shahmore has challenged the judgment dated 1-4-2002 passed by learned Sessions Judge/Special Court for C.N.S., Jacobabad passed against him in Special Case No,4 of 2000, whereby he is found guilty for committing an offence punishable under section 9 (c) of Control of Narcotic Substances Act, 1997 (hereafter to be referred as the "Act") and is thereby sentenced to suffer imprisonment for life and to pay fine of Rs,50,000 or in default of such payment to undergo further imprisonment for a period of six months, with benefit under section 382-B. Cr. P. C.
2. Heard Mr. Habibullah Shaikh, Advocate for the accused/appellant and Mr. Ali Azhar Tunio, Assistant Advocate-General for the State. Also perused the paper book pertaining to the R and PS of the learned trial Court.
3. The case of the prosecution is that on 14-2-2000 S.-I. Police Jamil Ahmed Sanjrani was posted at Police Station A-Section, Kandhkot, when on the said date he conducted patrolling, with his subordinate staff, and received spy information about the possession of the Charas by the accused/appellant, who ultimately was caught by them at 10-30 p.m. At Rasaldar Railway Crossing, while having a piece of cloth wrapped around his waist, which was secured by the said S.-I. Police and was found containing 246 pieces (strips) of Charas; arrest of the accused and recovery of the said Charas was made under such a Mashirnama, weight whereof came to be of 2200 grams; according to the said S.-I. Police "I then took out some pieces from each of the strips of the Charas" as sample to refer the same to the Chemical Analyzer, of the weight of 200 grams.
'After the investigation was completed, the accused/appellant was sent up to the learned trial Court.
4. During the trial, prosecution examined complainant S.-I. Police Jamil Ahmed at Exh. 8, who produced the F.I.R. At Exh. 9, report of chemical examiner at Exh.10, copy of Roznamcha Entry at Exh.11, while Mashir H.C. Karimdad Noonari was examined at Exh.6, who produced the Mashirnama of arrest and recovery at Exh.7.
5. In his statement under section 342, Cr. P. C. Appellant denied the allegations made against him and stated, "I am innocent. Case is false. Pray for justice." -further stating therein that the police officials have falsely deposed against him at the instance of one Ghous Bux Bhangwar, having enmity with the appellant. He neither examined himself on Oath in denial of the evidence of the prosecution nor produced any other defence evidence. As stated above, learned trial Court found the appellant guilty and convicted and sentenced him. Hence this appeal.
6. Mr. Habibullah Shaikh, learned counsel for the appellant straightaway argued the legal aspects of the case, and in the last attacked the evidence of the prosecution witnesses to point out alleged contradictions and inconsistencies in their evidence, which are of minor nature and do not affect the said recovery; the said witnesses have unanimously deposed that the accused was actually apprehended by them and Charas of the weight of 2200 grams was recovered from his possession. The technicalities and the minor contradictions are to be ignored in the larger interests of the Country and the public at large in the cases of the present nature and the Court has to consider the entire material on record as a whole, and if it is convinced that the case is proved, conviction should be recorded, as is held by Honourable Supreme Court of Pakistan in a case reported in 1993 SCM R 785 (Shariat Appellate Bench) at page 797 citation (E)).
7. Moreover, accused/appellant has neither examined himself on Oath in denial of the evidence of prosecution (as stated above), nor has produced any other defence evidence to prove his assertion that he was falsely implicated in this case; he has failed to prove any such enmity of any person against him and it is difficult to believe his assertion to the extent that the complainant and the Mashir, being police officials, would forge out a false case against him. The provisions of Control of Narcotic Substances Act, 1997 being of a special nature and application of section 103, Cr.P.C.
Having been specifically excluded for the purpose of recovery of Narcotic Substances under the said Act, there is no cogent reason to say that either the accused/appellant is falsely implicated by the prosecution witnesses/police officials or that there is any doubt that the appellant was not found in possession of 2200 grams of Charas, which were recovered from his possession by the said witnesses. The evidence produced by the prosecution appears to be satisfactory, whereby it has proved the said recovery from the possession of the appellant.
8. Learned counsel for the appellant vehemently argued that sentence of imprisonment for life in the case in hand pertaining to recovery of Charas of less than 10 kgs. Is too harsh and highly improportionate and is not in consonance with the provisions of section 9 (c) of the said Act, and has cited case-law reported in 2001 PCr.LJ 2027 (Karachi) wherein this Court reduced the imprisonment for life, which was awarded to the accused of the said reported case, to that of ten years' R.I. With substantial reduction in fine, and the relevant observations recorded by the learned Division Bench of this Court are as under:--- "10. Section 9 (c) of the Act prescribes sentence of R. I. Up to 14 years or life or death in case the quantity of narcotic exceeds one kg. The proviso attached to subsections (c), however, prescribes minimum penalty of life imprisonment in case the quantity-exceeds 10 kgs. Keeping in view the aforesaid penal provisions of section 9(c) of the Act., it would be gathered that the sentence of life imprisonment or death in cases involving narcotics with quantity of less than 10 kgs. Would be too harsh and may not appear to be in consonance with the above provisions and appear highly improportionate. Such a case, therefore, involving a quantity less than 10 kgs. Would normally not call for a sentence exceeding 14 years' imprisonment. The quantity of narcotics involved in the instant two cases is much less than 10 kgs. i,e, 3 kgs. Of heroin powder and 4 kgs. Of opium respectively. Though rigid mathematical calculation, keeping the terms of imprisonment opposite the quantity of narcotics may not be warranted yet reasonable proportion of sentence would be well within the spirit of the provisions of the Act."
9. Learned counsel has further assailed the sentence awarded by the trial Court by arguing that the sample of Charas sent to the Laboratory for chemical analysis was only of 200 grams whereas the conviction recorded by the trial Court against the appellant is of life imprisonment with fine, and has cited a case-law reported in 2002 PCr.LJ 1810 (Peshawar), wherein relevant observations are recorded at page 1817 as under:- "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 be 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. For reasons aforestated, Writ Petition No,1342 of 2001 is dismissed and Criminal Appeals Nos.190 of 2000 and 194 of 2000 are partially allowed. The convictions and sentences of the appellants recorded under section 9(c), C.N.S.A. Are altered to that under section 9(b), C.N.S.A. Resultantly the sentence of imprisonment for life and fine of Rs,5.00,000 awarded to the appellants by the trial Court is reduced to 6 years' imprisonment and Rs,2,00,000 each. They would be entitled to the benefit of section 382-B, Cr.P.C. As already held by the trial Court."
10. Learned counsel has further drawn our attention to the contents of the Mashirnama of recovery of the Charas, which read " Cloth bag was opened and it contained 246 strips and each strip was wrapped in white paper, total Charas was weighed, which became 2200 grams and a small quantity of each strip total weighing 200 grams was taken as sample, while remaining was sealed separately. Accused Shahmore was arrested under section 9(c) of Narcotic Act"; he has further drawn our attention to the cross-examination of Mashir H.C. Karimdad, which reads as under:-- "I do not remember how much was separated from one piece for sample purposes. I do not remember whether no sample was taken from remaining 141 pieces."
11. Thus, according to the learned counsel, the said Mashir has not specifically supported the part- version of the complainant (though the Charas was recovered in the shape of strips from the possession of the appellant); sample from each of the said strips was not taken out of each of the same and that, for such a reason, the appellant can only be seddled with the responsibility of being in possession of 200 grams of the Charas.
12. 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.
13. The upshot of the above discussion is that, keeping in pace with the sound principle governing the safe administration of criminal justice the appellant is found guilty only for being in possession of 200 grams of Charas, which recovery falls under section 9(b) of the said Act and which provides, "whoever contravenes sections 6, 7 or 8 shall be punishable with imprisonment which may extend to seven years and shall also be liable to tine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams, but does exceed one kilogram".
Accordingly, the appeal is partly accepted to the extent that the conviction "awarded to him is altered for the offence under section 9 (b) of the said Act, and the sentence is also altered to the one to suffer R.I. For a period of three years and to pay tine of Rs,30,000 (Rupees thirty thousand) or in default thereof to undergo further R.I. For six months; he is also entitled to the benefit of section 382-B, Cr.P.C.
14. With the above modifications, the appeal is hereby dismissed.