GUL DAST vs STATE

Nisar Hussain Khan, J.--Instant appeal is directed against the judgment of learned Additional Sessions Judge-VII/Judge, Special Court, Peshawar dated 31.5.2011, whereby the appellant was convicted under Section 9(c) CNSA 1997 and sentenced to four years imprisonment with fine of Rs, 30,000/-, in default whereof to undergo three months S.I.

2. Prosecution case, as per contents of the FIR, is that Feroz Khan ASI alongwith police contingent was present on the main gate of Railway Station Platform, Peshawar City in connection with checking of ammunition, narcotics and prevention of terrorist activities, when they found a man in suspicious condition holding a sma ll plastic sacic on his right shoulder, containing something weighty; who was intercepted and searched through Muhammad Tahir, IHC No,

144. During the search, he found five plastic bags wrapped in male covering-sheet/veil. The plastic envelops were opened and wet opium was recovered, which was weighed and each packet was found to be of 1200 grams, aggregate of which was six thousand grams. A sample from each packet was separated for chemical analysis, total weight of which was 35 grams and sealed into a parcel.

While rest of the opium was scaled into a separate parcel. On this recovery `Murasila' was drafted and sent for registration of case. On completion of formal investigation, challan was put in Court, where prosecution examined four P.Ws. to prove the charge apipst the accused. Stateme .t of accused was recorded under Section 342, Cr,P.C., wherein he totally denied the prosecution case and professed his innocence. He did not record his own statement on oath under Section 340(2), Cr.P.C., nor produced any evidence in his defence. After hearing both the sides, the appellant was convicted and sentenced as mentioned above.

3. Leaned counsel for the appellant argued that the prosecution has failed to prove its case beyond any shadow of doubt, as there are material contradictions in the statements of PWs, benefit of which is to be extended to the appellant. He maintained that allegedly five packets of wet opium were recovered and the sample taken therefrom have been mixed in single packet and sent to the FSL and in view of this infirmity, the appellant cannot be saddled with the criminal liability of all the packets, even if the FSL report is in positive. Placed reliance on Ameer Zaib's case PLD 2012 SC 3890.

4. As against that Ghulam Sabir, Advocate, learned State counsel argued that prosecution has successfully established the guilt of the appellant by producing cogent evidence, hence this appeal is liable to be dismissed.

5. We have heard arguments of the learned, counsel for the parties and have gone through the available record.

6. It appears from the record that the opium was recovered from possession of the appellant when he was found holding a packet on his shoulder. His packet/sack was searched on suspicion, where from 5 packets of opium were recovered. The recovery memo. Ex.PC was witnessed by Muhammad Tahir IHC and Shafiullah constable, both of Crime Branch, Railway Police Station, Peshawar City.

Likewise, plastic packet and male covering-sheet/veil of yellow colour, in which the opium was wrapped, was also taken into possession vide recovery memo. Ex.PC/1, witnessed by both the police officials. The sample was sent to the FSL, vide application Ex.P.3/1 on 21.1.2011, the date of occurrence, which was received in FSL on the very next day. The FSL report Ex.PZ reflects that on chemical analysis the sample was found of opium. Alongwith the application of the I.O. there is an application addressed to the Chemical Examiner by Supdt: of Police, Pakistan Railways, Peshawar for his opinion. Complainant was examined as PW.3, who reiterated the same, facts which were narrated in the `Murasila'. Likewise, marginal witness of recovery Muhammad Tahir was examined as PW.4. who endorsed the whole proceedings of recovery and preparation of recovery memo. All the PWs were subjected to lengthy and searching cross-examination, but nothing could be extracted from their cross-examination.

7. The perusal of the `Murasila' as well as the recovery memo. reflects that sample taken from all the five packets were mixed up in one parcel and sent to the FSL. The same was as such received in the FSL. Para-2 of the FSL's report reflects that one sealed packet was received over there with regard to which the opinion has been furnished by the FSL. It is requirement of the law that sample should be taken from each slab/packet and be sealed separately and sent to the FSL for opinion to establish the nature of each and every packet. In case of mixture, it becomes doubtful that whether all the packets were of contraband or. of sample of one packet has become the cause of positive result. In such a situation the accused cannot be saddled with the criminal liability of all the packets, unless separate opinion with regard to all the packets have been obtained. Thus it would not be safe to convict an accused for whole of the quantity about which the FSL opinion has not been obtained. In this regard we are fortified by the dictum laid down in Amirzeb's case (PLD 2012 SC 3890). By following the principle laid down in the said report, the appellant can only be held liable for possession of one packet of the opium about which the report of the FSL can be considered.

For the forgoing reasons, we while partially allowing the instant appeal and by maintaining the conviction of the appellant, reduce his sentence from four years to one year. He shall also pay fine of Rs, 10,000/- instead of Rs, 30,000/-, in default whereof to undergo one month S.I. Benefit, of Section 382-B, Cr.P.C. shall he extended to the appellant.