IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Jail Appeal  No.D- 59   of 2009

                                                            Present :

                                                            Mr. Justice Naimatullah Phulpoto

                                                            Mr. Justice Farooq Ali Channa.

Date of Hearing: 12.12.2012            Date of Judgment : 12.12.2012

Appellants: Jaffer Khan and another through Mr. Faiz Mohammad Larik,  Advocate

Respondent: The State through Mr. Abdul Rasheed Soomro, State counsel.

J U D G M E N T

Farooq Ali Channa, J.-   The appellants Jaffer Khan and Nawab Khan through the Superintendent Central Prison, Larkana have preferred this criminal jail appeal, challenging the judgment dated 09.7.2009 passed in CNS case No.01/2008 by Sessions Judge,/Special Court (CNS), Jacobabad whereby both the appellants were convicted under section 9 (c) of Control of Narcotic Substances, Act, 1997 and sentenced to imprisonment for life and to pay fine of Rs.100,000/- each, in case of default thereof, to undergo SI for six months more with benefit of Section 382-B, Cr.P.C.

            2.         Brief facts of the case giving  rise to file the instant jail appeal are that on 12.2.2008 complainant Gul Muhammad SHO PS Garhi Khairo on spy information arrested the present appellants who were transporting 180 kilograms charas in truck bearing registration No. TKM-844/Quetta, in secret cavities made in truck. The SHO Prepared mashirnama of recovery, brought the accused and case property at Police Station, lodged the FIR and after completing the investigation submitted challan in the court of law. After trial they were convicted and sentenced as stated hereinabove.

            3.         Mr. Faiz Mohammad Larik, learned counsel for the appellants has submitted that as per prosecution case 90 packets containing 180 kilograms charas were allegedly recovered but only two packets, weight one kilogram each total two  kilograms  were sealed separately as sample for sending the same to Chemical Examiner. He submitted that trial Court ought to have awarded sentence, keeping  in view only two kilograms charas, sent to Chemical Examiner. However, after arguing the case at some length he has stated that he would not press the instant appeal on merits if the sentence awarded to the appellants is reduced from imprisonment for life to period, the appellants have already undergone.

            4.         Mr.Abdul Rasheed Soomro, appearing for the State has conceded the request made by learned counsel for the appellants being reasonable.

            5.         Per prosecution case, the complainant had recovered 90 packets containing charas from the cavities of truck, the weight of recovered charas was  180 kilograms and as per mashirnama out of 90 packets, only two packets weighing one kilogram each were sealed separately and sent to the Chemical Examiner. The above fact is supported by the report of the Chemical Examiner which shows that Chemical Laboratory received two sealed parcels containing two kilograms charas  as such the appellants would be considered to have been found possessing/ transporting  two kilograms charas as no chemical examiner’s report in respect of rest of the recovered substance has been brought on record. The Honourable Supreme Court of Pakistan in a case reported as Ameer Zeb v. The State PLD 2012 SC 380 has been pleased to hold as under :-

“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 separates 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.

            In the case in hand 80 cakes/slabs contained in 20 packets kept in 22 baskets had allegedly been recovered from the appellant’s possession but according to the prosecution only a “small” and unspecific quantity was taken from every packet as a sample and then those samples were mixed up and made into one sample of 10 grams which was thereafter sent to the Chemical Examiner for analysis. If 80 cakes/slabs had statedly been recovered from the appellant’s possession and the total weight of the entire quantity was 20 kilograms then, in all likelihood, each cake/slab weighed about 250 grams. As only one sample of 10 grams had been sent to the Chemical Examiner for analysis and the report in that regard had been received in the positive, therefore, for safe administration of justice it may be concluded that the appellant was liable to be held responsible for having only one cake/slab of charas weighing 250 grams in his possession which offence attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997……”

            6.         Accordingly, keeping in view the submission of counsel for appellants conceded by the State counsel and following the dicta laid down by the Honourable Supreme Court as referred hereinabove we allow the appeal partly and while maintaining the conviction reduce the sentence from imprisonment for life to six years R.I with fine of Rs.100,000 each in default thereof the appellants shall suffer six months S.I. more. The appellants shall also be entitled to the benefit of Section 382-B, Cr.P.C. The appeal is disposed of in these terms.

                                                                                                Judge

                                                Judge

Abid H. Qazi