P L D 2012 Supreme Court 380
Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed
and Muhammad Athar Saeed, JJ
AMEER ZEB---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.565 of 2009, decided on 18th January, 2012.
(On appeal from the judgment dated 30-6-2009 of the Islamabad High Court, Islamabad passed
in Criminal Appeal No.293 of 2005).
(a) Sentence---
----Harder the sentence, stricter the standard of proof.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9---Recovery of narcotics---Sentence, quantum of---Principle---Sentences specified in
Control of Narcotic Substances Act, 1997, depend upon quantity of recovered narcotic substance
and not upon narcotic content of recovered substance---Quantity in such cases is determinative
factor as far as the sentences are concerned---In all such cases, there should be no room for doubt
as to the exact quantity of the substance recovered and also as to the entire recovered substances
being narcotic substance---Accused person is at receiving end of long and stringent punishments
and thus safeguards from his point of view should not to be allowed to be sacrificed at the altar
of mere comfort or convenience of the prosecution.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9---Recovery of narcotics---Representative samples---Principle---Sample taken of a
recovered substance must be a representative sample of the entire substance recovered---If no
sample is taken from any particular packet/cake/slab or if different samples taken from different
packets/cake/slab are not kept separately for their separate analysis by Chemical Examiner,
then the sample would not be a representative sample and it would be unsafe to rely on mere
word of mouth of the prosecution witnesses regarding the substance of which no sample has
been taken or tested being narcotic substance---At least in some situations Control of Narcotic
Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for
the purposes of safe administration of criminal justice, some minimum standards of safety are to
be laid down so as to strike a balance between prosecution and defence and to obviate chances of
miscarriage of justice on account of exaggeration by investigating agency--- Such minimum
standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens
regarding life and liberty which could not be left at the mercy of verbal assertions of police
officers which assertions are not supported by independent evidence provided by Chemical
Examiner---Where any narcotics substance is allegedly recovered while contained in different
packets, wrappers or container of any kind or in the shape of separate 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 accused person from which a sample was taken and tested
with positive results.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9---Criminal Procedure Code (V of 1898), Ss. 221 & 342---Narcotic substance, recovery
of---Proof---Sample, not taken ---Failure to object---Effect---If at the time of framing of charge
against accused, he denied the allegation levelled against him by prosecution, he suggested to
prosecution witnesses that nothing had been recovered from his possession or custody and in his
statement recorded under S.342 Cr.P.C. he had controverted allegations regarding recovery of
narcotic substance from his possession or custody, then mere failure to challenged during the
trial that remaining untested recovered substance was not narcotic substance should nether
weaken the case of defence nor strengthen the case of prosecution.
(e) Control of Narcotic Substances Act (XXV of 1997)---
----S.29---Narcotic substance---Recovery---Proof of---Onus to prove---Scope---Initial onus on
prosecution in such cases includes the onus to prove that entire substance allegedly recovered is
in fact narcotic substance and such onus can be discharged by prosecution only if sample of
recovered substance sent to Chemical Examiner for analysis are representative samples of
entire quantity of recovered substance.
Kashif Amir v. The State PLD 2010 SC 1052 and Muhammad Noor and others v. The State 2010
SCMR 927 ref.
(f) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Recovery of narcotic substance---Reappraisal of evidence---Narcotic in different
packs---Chemical examination---Procedure---Charas in 80 cakes/slabs contained in 20 packets
kept in 22 baskets was allegedly recovered from possession of accused but 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 Chemical Examiner for
analysis---Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act,
1997, and sentenced him to imprisonment for life which was maintained by High Court--Validity---If 80 cakes/slabs had statedly been recovered from possession of accused and total
weight of entire quantity was 20 kilograms then, each cake/slab weighed about 250 grams---As
only one sample of 10 grams had been sent to Chemical Examiner for analysis and report in that
regard had been received in positive, therefore, for safe administration of justice, it could be
concluded that accused was liable to be held responsible for having only one cake/slab of Charas
weighing 250 grams in his possession which offence attracted provisions of S.9(b) of Control of
Narcotic Substances Act, 1997---Supreme Court converted conviction of accused under S.9(b) of
Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for one year and
three months with a fine of Rs.9000---Appeal was allowed accordingly.
Nadir Khan and another v. The State 1988 SCMR 1899; Ali Muhammad and another v. The
State 2003 SCMR 54; Gulshan Ara v. The State 2010 SCMR 1162; Muhammad Hashim v. The
State PLD 2004 SC 856; Waris Khan and 2 others v. The State 2006 SCMR 1051; Muhammad
Riaz and 2 others v. The State 2006 SCMR 1378; Amanat Ali and 2 others v. The State 2008
SCMR 991; Qaisarullah and others. v. The State 2009 SCMR 579; The State v. Amjad Ali PLD
2007 SC 85 and Muhammad Aslam (Amir Aslam) and others v. District Police Officer,
Rawalpindi and others 2009 SCMR 141 ref.
Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 fol.
Aftab Ahmad Khan, Advocate Supreme Court for Appellant.
A.D. Nasim, Special Prosecutor, Anti-Narcotics Force with Ch. Zubair Ahmad Farooq,
Additional Prosecutor-General, Punjab along with Ch. Akhtar Ali, Advocate-on-Record for the
State.
Date of hearing: 5th January, 2012.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.---Ameer Zeb appellant was arrested by a police party on 293-2002 and 22 baskets containing 20 packets of charas were allegedly recovered from his
possession. F.I.R. No.83 was registered in that respect at Police Station Tarnol, District
Islamabad on the same day for an offence under section 9(c) of the Control of Narcotic
Substances Act, 1997. According to the prosecution each packet contained four cakes/slabs of
charas and the total weight of the recovered substance was 20 kilograms. Out of the recovered
substance a "small" quantity was taken from each packet as a sample and then the small
quantities recovered from each packet were put in a consolidated form in one packet weighing 10
grams for the purpose of onward transmission of that sample to the office of the Chemical
Examiner. The Chemical Examiner later on found the sample sent to him to be containing charas
which could be used for causing intoxication. After holding a full-dressed trial the appellant was
convicted by the learned Additional Sessions Judge, Islamabad for an offence under section 9(c)
of the Control of Narcotic Substances Act, 1997 vide judgment dated 28-7-2004 and was
sentenced to imprisonment for life and a fine of Rs.1,00,000/- or in default of payment thereof to
undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. was
extended to him. The appellant challenged his conviction and sentence before the Islamabad
High Court, Islamabad through Criminal Appeal No. 293 of 2005 but the said appeal was
dismissed by a learned Division Bench of that Court vide judgment dated 30-6-2009. Hence, the
present appeal by leave of this Court granted on 20-10-2009.
2. We have heard the learned counsel for the parties and have gone through the record of this
case with their assistance. The only argument advanced by the learned counsel for the appellant
is that the contraband substance allegedly recovered from the appellant's possession was
contained in 20 packets and each packet statedly contained four cakes/slabs but instead of taking
a separate sample from every cake/slab in every packet only a "small" and unspecified quantity
had been taken as a sample from every packet and then all such "small" quantities were put
together in one packet weighing 10 grams which packet was then sent to the Chemical Examiner
for analysis. It has been maintained by the learned counsel for the appellant that it was
imperative to obtain a separate sample not only from every packet allegedly recovered from the
appellant's possession but also to obtain a separate sample from every cake/slab contained in
every packet and then all such samples, i.e. 80 in number were to be sent to the Chemical
Examiner separately for analysis in order to confirm that every cake/slab in every packet
contained charas but that was not done in this case as is evident from the F.I.R. (ExhibitPA), the Memorandum of Recovery (Exhibit-PB) and the report submitted by the Chemical
Examiner (Exhibit-PF). It has, thus, been submitted by the learned counsel for the appellant that
the solitary sample tested by the Chemical Examiner weighed only 10 grams whereas according
to the prosecution's own showing every cake/slab recovered in this case weighed 250 grams and
in these circumstances the appellant could have been convicted only for recovery of one
cake/slab of charas and not for the entire recovered substance statedly weighing 20 kilograms.
As against that the learned Special Prosecutor for the Anti-Narcotics Force has maintained that it
was not a legal requirement to take a separate sample from every cake/slab of the narcotic
substance recovered and to send every such sample separately to the Chemical Examiner for
analysis and that the appellant had never claimed before the learned trial court that the untested
recovered substance was not narcotic substance. It has, thus, been maintained by him that the
conviction and sentence of the appellant for the entire quantity of 20 kilograms of charas had
correctly been recorded by the learned trial court and the learned Division Bench of the
Islamabad High Court, Islamabad was also quite justified in dismissing his appeal.
3. After hearing the learned counsel for the parties and going through the record of this case with
their assistance we have observed that the question of taking of samples of recovered narcotic
substance has remained a point of controversy in many cases decided by this Court and divergent
opinions have been expressed in that regard by different Honourable Benches of this Court from
time to time. In the case of Nadir Khan and another v. The State (1988 SCMR 1899) it had been
held by a three-member Bench of the Shariat Appellate Bench of this Court as follows:
"It was 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".
Later on in the case of Ali Muhammad and another v. The State (2003 SCMR 54) a threemember Bench of this Court had dealt with this issue in the following manner:
"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.-----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 SCMR 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 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/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 re-examination 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."
Subsequently in the case of Kashif Amir v. The State (PLD 2010 SC 1052) a three-member
Bench of this Court had the following to observe on the issue in hand:
"5. It is also contended by the learned counsel that out of huge quantity of 193 kg Charas and 5
Kg Opium, samples were not drawn from the total consignment but only 100 grams Charas was
sent for the Chemical Examination, which according to him does not represent the whole lot, as
such the petitioner shall not be convicted/sentenced under section 9(c) but under section 9(b) of
the CNSA. Reference in this context has been made to the case of Hashim v. The State (PLD
2004 SC 856). We have carefully examined the arguments of the learned counsel in the light of
the record. The prosecution witness namely Asmatullah established that 1.0% samples out of
total recovered Charas i.e. 193 kg and 1% of the Opium was sent to the laboratory. The recovery
memo of the narcotics recovered from the cavities of the vehicle Exh.PW.5/1 has been produced
by P.W. Asmatullah along with Chemical Analyzer's Report Exh. PW-5/7 and 5/8 respectively
(Report of Charas and Opium). He has also produced on record application under section 516-A,
Cr.P.C. Exh.P.W-5/9, destruction certificate Exh.PW-5/ 10, sampling certificate Exh.PW-5/11. A
perusal of all these documents, particularly inventory indicates that samples were drawn from all
the packets of the recovered Charas and Opium, therefore, the presumption of the learned
counsel that samples were not drawn from the total recovered quantity of the Charas is not
tenable. The judgment, which has been relied up by him in establishing that except from one
kilogram Charas no sample was drawn from the remaining recovered narcotics i.e. Charas and on
the basis of this it was held that prosecution is bound to draw samples from the total recovered
narcotics is not applicable in the instant case. As far as sample drawn out of recovered Opium is
concerned, no objection has been raised. In addition to it, in the case of Ali Muhammad (ibid) it
has been held that the question with regard to non-collection of the samples from the whole lot of
recovered narcotics would arise in those matters, where a challenge has been made that
recovered item is not narcotics. Same principle is not attracted herein, because the recovery of
the Charas and Opium was not challenged by the petitioner before any Court. Thus, case of the
petitioner that he, was innocent as he had no knowledge about the transportation of the narcotics
(Charas and Opium) in the vehicle by concealing same in the especially designed cavities does
not seem to be confidence inspiring in view of the case-laws referred to hereinabove. As it has
already been observed that primarily it is the duty of the prosecution to prima facie establish the
guilt of the accused but once it has succeeded for doing so then in terms of section 29 of CNSA,
the presumption would be that unless and until contrary is proved, the accused has committed the
offence. In the instant case the prosecution had discharged its initial burden while proving that
narcotics were recovered from the petitioner, as such, the burden had shifted to the petitioner to
prove his innocence, which he failed to do."
This issue had also been attended to by a three-member Bench of this Court in the case of
Gulshan Ara v. The State (2010 SCMR 1162) which had rendered a split decision on the same.
The minority opinion in that case had been recorded by Rehmat Hussain Jafferi, J. and his
lordship had observed as under:
"2. The learned brother Judges after holding the appellant guilty of possessing Charas converted
the offence from section 9(c) of Control of Narcotic Substances Act, 1997 to section 9(b) of the
said Act on the ground that only 6 grams were taken from one packet weighing 1 kilogram,
therefore, the appellant would be liable for the said quantity of Charas and exonerated her from
the remaining 16 kilograms of Charas. On reaching the above conclusion, reliance was placed on
two judgments of this Court reported as Muhammad Hashim v. State PLD 2004 SC 856 and
Amanat Ali v. State 2008 SCMR 991. In this respect, I would like to make the following
comments.
3. Perhaps, for the first time this point was discussed by three Members Bench of this Court in
the case of Nadir Khan v. State 1988 SCMR 1899, wherein it was observed as under:--
"It was 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."
The above authority was followed by another Bench of equal Judges of this Court in the case of
Ali Muhammad v. State 2003 SCMR 54 with the following observations:
"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 can 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".
4. It appears that a contrary view was taken by two other Benches of equal number of Judges in
the cases of Muhammad Hashim and Amanat Ali (supra). In such a situation. apparently the rule
laid down by the case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 was
required to have been followed which is that if a Bench of equal Judges does not agree with the
earlier Bench of equal Judges, then the matter should be referred to a larger Bench. It appears
that earlier decisions of this Court in the cases of Nadir Khan and Ali Muhammad (supra) were
not brought to the notice of the Benches in the cases of Muhammad Hashim and Amanat Ali
(supra), therefore, the principle laid down in the said cases was never discussed. In such a
situation this Court in the case of Province of the Punjab v. S. Muhammad Zafar Bukhari PLD
1997 SC 351 observed as under:---
"Halsbury's Laws of England. Fourth Edition, volume 26 in paras 577-578, has commented on
the "judgment per incuriam" as under:
"A decision is given per incuriam when the Court has acted in ignorance of previous decision of
its own or of a Court of coordinate jurisdiction which covered the case before it in which case it
must decide which case to follow or when it has acted in ignorance of House of a Lords'
decision, in which case it must follow that decision or when the decision is given in ignorance of
the terms of statute or rule has statutory force."
5. Because of the conflict of decisions of this Court on the above point, the High Courts and
subordinate Courts are making pick and choose to apply any of the decisions in the case which
apparently is causing miscarriage of justice. Now it is left at the discretion of the High Courts
and subordinate Courts to give benefit or otherwise to any particular accused which apparently is
frustrating the intention of lawmakers and diminishing the rigour of law for which it is made. It
appears that proviso to section 9(c) of CNS Act, 1997 is being made redundant in cases of
recovery of huge quantity of narcotics. Suppose in a case in which thousands of packets are
recovered from a container, is it possible to take sample from each packet? It not, then the
accused would not be held responsible for the huge quantity recovered from the container except
for the quantity for which the sample was taken and sent to Chemical Analyzer for report I
believe the intention of law is to cover all the situations of offence. The Control of Narcotic
Substances Act has been enacted to crush the menace of narcotic that is not only eroding the
society of Pakistan but the world at large.
6. In this connection I may further observe that the word "sample" defined in Oxford Dictionary
is as under:---
"A small part or quantity intended to show what the whole is like, a specimen, especially, one
taken for scientific testing or analysis"
Definition of word "sample" given in the Words and Phrases, Permanent Edition, Volume 38
reads as under:
"A 'sample' is a part of anything presented for inspection or shown as evidence of the quality of
the whole.
The word 'sample' both in its legal and popular acceptable means that which is taken out of a
large quantity as a fair representation of the whole a part shown as a specimen."
The words 'sale by sample' as defined in Black's Law Dictionary reads as under:-
"A sale in which the parties understand that the goods exhibited constitute the standard with
which the goods not exhibited correspond and to which all deliveries should conform. Any
sample that is made part of the basis of the bargain creates an express warranty that the whole of
the goods will conform to the sample or model."
From the above definition, it is clear that when a sample is taken it represents the whole
property. This view is further supported by a latest amendment in section 516-A of Cr.P.C. in
which huge quantity recovered from the accused can be destroyed after keeping its sample or
samples to be produced before the Court. The proviso to the said provision reads as under.
"Provided also that such samples shall be deemed to be whole of the property in an inquiry or
proceeding in relation to such offence before any authority or Court."
7. In the present case, the appellant never challenged that the property was not Charas, but her
case throughout the trial was that the property was planted upon her. If she had denied or
challenged such fact, then the prosecution could have taken some steps to meet the challenge of
the appellant. It appears that the prosecution did not take further steps in view of Article 113 of
Qanun-e-Shahadat, 1984 by which admitted facts are not required to be proved.
8. After considering the material available on record and the above legal position, I am of the
view that the matter may be referred to the honourable Chief Justice for constituting a larger
Bench to resolve the above controversy. Thus the offence would fall under section 9(c) of
Control of Narcotic Substances Act, 1997 and not section 9(b) of the said Act. The appeal is
accordingly dismissed."
4. We have, however, observed that a different view of the matter had been taken by a threemember Bench of this Court in the case of Muhammad Hashim v. The State (PLD 2004 SC 856)
and it had been observed in that case as follows:
"3. It is a jail appeal, therefore, record of the case perused with the assistance of learned State
counsel carefully. It emerges there from that vide recovery memo. Exh.P/1-A, 4 grams of Charas
was taken out from total 288 rods. Nothing is available on record to show whether sample for
examination by Chemical Examiner was taken our from each rod to ascertain that 288 rods were
of Charas or some other commodity having resemblance with the colour of Charas like Oil Cake
(Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if
offences charged against the accused within any component of section 9 is proved. Therefore, for
such reason, Act 1997 has to be construed strictly and the relevant provisions of law dealing with
the procedure as well as furnishing the proof like the report of expert, etc. are to be followed
strictly in the interest of justice, otherwise in such-like cases it would be impossible to hold that
total commodity recovered from his possession was Charas. However, in given facts and
circumstances of the case, it would be presumed that sample was taken out from only one rod.
As far as remaining rods are concerned, in absence of any sample taken out from them, it would
not be possible to hold that they were the rods of Charas or otherwise. Therefore, taking into
consideration this aspect to the case, we are of the opinion that for such reason, the case of the
prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and
maintained by the High Court is not sustainable."
A two-member Bench of this Court had an occasion to deal with the same question in the case of
Waris Khan and 2 others v. The State (2006 SCMR 1051) and the relevant part of that
judgment is reproduced below:
"4. So far as the sentence is concerned, the learned counsel for the petitioners has seriously
assailed the same. The main objection of the learned counsel was, taking for example the Charas,
that allegedly it consisted of 48 packets but, as determined by the superior Courts from time to
time, the recovery officer has not obtained samples for chemical analysis from each and every
packet so as to prove that every packet was that of Charas. We have consumed a lot of time to
assess the genuineness or otherwise of the arguments during which we came across the reports of
Chemical Examiner at pp.62 and 63 of the file. Therefrom it transpires, with no doubt and
discrepancy, that only one packet of Charas and only one packet of opium was sent to the
Chemical Examiner for the purposes of analysis and to that effect, the report was in positive. The
omission and inefficiency of the officer concerned constrains us to hold that only a small amount
of the alleged total is proved to be Charas and opium.
5. Consequently. while upholding the conviction and by conversion of petition into appeal, it is
partially allowed qua the sentence. The imprisonment for life is reduced to rigorous
imprisonment for ten years each along with a fine of Rupees two hundred thousand
(Rs.2,00,000) each, in default of payment whereof each convict would suffer imprisonment for
one year."
In the subsequent case of Muhammad Riaz and 2 others v. The State (2006 SCMR 1378) a twomember Bench of this Court had opined on the issue in the following terms:
"4. The perusal of statements of the witnesses, namely Muhammad Khan, S.-I. (S.H.O.) who
conducted raid, Adil Niaz, Head Constable (P.W.4) and Jehangir Khan, court-witness, who was
also member of raiding party and marginal witnesses of recovery memo., would show that
contention of learned counsel for the petitioners that out of total recovered Charas and opium,
only two Kgs. of Charas and two Kgs. of opium as per report of Chemical Examiner, was proved
as narcotics, is not without substance. Dost Muhammad, S.-I. (P.W.3) has stated that the
recovered Charas and opium was in blocks whereas Adil Niaz, Head Constable stated that it was
in the form of slabs and Jehangir Khan, court-witness has said nothing that in what form the
Charas and opium was recovered. The contraband Charas and opium in the form of blocks may
not be conveniently carried in the bandolier, rather as stated by Adil Niaz (P.W.4), the recovery
of the Charas and opium would certainly be in the form of slabs. It was mentioned in the
complaint as well as in the recovery memo. prepared by Dost Muhammad (P.W.3) that opium
and Charas was recovered in blocks and 4 grams from each block was taken for chemical
examination whereas in his statement in the Court while deposing that four grams of Charas and
four grams of opium was taken from each piece of recovered Charas and opium, he made an
attempt to improve his statement to cover the lacuna in the prosecution case and material
contradiction in the evidence. The perusal of record would show that learned trial Judge as well
as the learned Judge in the High Court without taking notice of the above defect in the
prosecution case proceeded to determine the quantum of punishment on the basis of allegation of
recovery of narcotics more than 10 Kgs. from each female accused and consequently, sentence of
life imprisonment was awarded to all the three petitioners with the consideration that they were
found transporting about 23 Kgs. of the narcotics whereas the detail analysis of the evidence
would lead to an irresistible conclusion that only 4 Kgs. of Charas and opium was proved as
narcotics. It is also evidence on the record that female accused were carrying narcotics with them
at the instance of Muhammad Riaz who was accompanying as guard being main beneficiary of
the narcotics.
5. In the light of foregoing reasons. we while taking into consideration that out of total recovered
Charas and opium, a quantity of two Kgs. of Charas and two Kgs. of opium was proved as
narcotics maintain the conviction of petitioners under section 9(c) of Control of Narcotic
Substances Act, 1997 with fine imposed upon them but keeping in view the circumstances of the
case in totality. We are inclined to reduce their sentence of imprisonment. This petition is,
therefore, converted into an appeal and allowed with reduction of sentence of life imprisonment
awarded to Muhammad Riaz to 14 years' R.I., whereas the sentence of the petitioners namely,
Mst. Perveen Bibi and Mst. Kausar Perveen is reduced to R.I. for 10 years each. The sentence of
petitioners in default of payment of fine is also reduced from 1 year to 6 months and they shall
be entitled to the benefit of section 382-B, Cr.P.C.
6. With the above reduction in the sentence, this appeal is partly allowed."
Later on in the case of Amanat Ali and 2 others v. The State (2008 SCMR 991) a three-member
Bench of this Court had an occasion to deal with the same issue and it was determined and
concluded as reproduced below:
"6. -----However, according to the prosecution only a small quantity of one gram of heroin was
taken from all the eight packets in a separate sealed parcel for chemical examination, therefore,
notwithstanding the fact that the report of the Chemical Examiner was positive, the crucial
question for determination would be as to whether a quantity of one gram would be sufficient to
ascertain the origin of the contents of all the eight packets. In the light of facts of the case
apparently, the claim of the raiding party to have taken small quantity of heroin from each packet
for chemical analysis appears to be misguiding rather the circumstances would show that one
gram of heroin was taken from one packet and in that, report would be relevant only to that
extent. Be that as it may, in the normal situation it was essential for the raiding party to prepare a
separate parcel of at least one gram from each packet for chemical analysis and same having
been not done a serious doubt, would arise in respect of the origin of contents of all the packets.
In consequence thereto, it would not be safe to bring the case within the ambit of section 9(c) of
Control of Narcotic Substances Act, 1997 for the purpose of conviction and sentence rather a
legitimate presumption would be that report of Chemical Examiner would be read only to the
extent of one packet of the approximate quantity of less than one Kg. and in that the case would
squarely fall within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997,
therefore, the conviction of Amanat Ali, appellant under section 9(c) of Control of Narcotic
Substances Act, 1997 was bad in law. Learned counsel for the appellant has submitted that the
appellant remained in jail throughout from the date of his arrest and has almost completed a
period of about five years of his sentence, which may be considered sufficient sentence under
section 9(b) of C.N.S. Act, 1997. In view of the position explained by the learned counsel for the
appellant, we while converting the conviction of the appellant under section 9(c) of Control of
Narcotic Substances Act, 1997, to section 9(b) of the said Act reduced his sentence equal to the
period already undergone by him with fine imposed upon him by the trial Court. The appellant
shall be entitled to the benefit of section 382-B, Cr.P.C. and shall be released from jail
forthwith if not required in any other case. This appeal with the above modification in the
conviction and sentence, stands partly allowed."
The next judgment on the same issue is that delivered in the case of Qaisarullah and others v.
The State (2009 SCMR 579) wherein a three-member Bench of this Court had decided the issue
in the following terms:
"8. ----According to F.I.R. 170 packets were recovered from the car, each packet weighed 1 Kg.
and some quantity of Charas was separated from each of the packet for the purpose of chemical
examination. Even if one gram of Charas would have been separated from each of the packet
then the total would be 170 grams and not 10 grams. It is virtually impossible to separate 1/17
grams even by micro tools from a packet containing 1 Kg. of Charas. According to P.W.4 each
packet contained I kg. of sold Charas but he could not remember as to how much Charas was
separated as sample for chemical analysis. Similarly, P.W.5 after improving his story by stating
that he separated with the help of knife conceded that he could not tell as to how much Charas
was separated for sample from the bulk of Charas. In the above noted circumstances, possibility
that 10 grams of Charas was separated from a single packet cannot be ruled out. It is cardinal
principle of law that benefit of each doubt is to be given to the accused. The judgment passed by
this Court in the case of Daulat Khan v. The State 2007 SCMR 1437 is referred.
9. In the circumstances of the case, the recovery of 10 grams of Charas can only be used against
the appellant Qaisarullah. Hence we alter his conviction from offence under section 9(c) of the
Act to offence under section 9(a) of the Act. His sentence is reduced to the period already served
out by him. He would be released forthwith if not required in any other criminal case. His appeal
is partly allowed and judgments passed by the learned Courts below are modified in the abovenoted terms."
The last in the line of such judgments is the majority opinion recorded by two honourable Judges
of a three-member Bench of this Court in the case of Gulshan Ara v. The State (2010 SCMR
1162) and that opinion was as follows:
"5. Having heard learned Special Prosecutor-General, ANF and learned State counsel and on
reappraisal of the evidence on record, we note that there are certain features of this case which
call for caution to ensure safe administration of justice. First the evidence of raid and recovery
was furnished by P.W.3 Ijaz Ahmad, constable and P.W.5 Safwat Ullah, S.-I. Both are police
officials and according to them they on a source report straight went to the house of the appellant
and after her arrest they searched the kitchen and from secret boxes recovered the narcotic i.e. 17
packets of one kilogram each and only six grams was sent for chemical analysis. There is
nothing on record to indicate that a sample was taken from each packet. Learned SpecialProsecutor-General was confronted with the law laid down by this court in the case of
Muhammad Hashim v. The State PLD 2004 SC 856 and he was not in a position to dispute that
the ratio laid down in the said judgment would be relevant for this case as well. ----
6. The afore referred dimensions of the case would create doubt at least to the extent of the
contraband narcotic samples of which were not taken and sent to the Chemical Examiner for
analysis. In the case of Muhammad Hashim v. the State PLD 2004 SC 856 this circumstance was
considered as a ground of acquittal. In Amanat Ali v. The State 2008 SCMR 991 this Court
upheld the conviction to the extent of the contraband narcotic the sample of which was sent to
the Office of Chemical Examiner and positive report had been received and reversed the
conviction under section 9(c) of CNS Act, 1997 on the grounds as under:
7. Having come to the afore-referred conclusion, the Court converted the conviction of the
appellant in the said case from section 9(c) of Control of Narcotic Substances Act, 1997 to
section 9(b) of the said Act and reduced the sentence to the period that the appellant had already
undergone. In the instant case as well admittedly no sample was taken from any other packet
except one and the said packet according to the prosecution weighed only one kilogram. That
being so the case of the appellant would fall in section 9(b) of Control of Narcotic Substances
Act, 1997 consequently, this appeal is partly allowed and by converting appellant's conviction
from section 9(c) of Control of Narcotic Substances Act, 1997 to section 9(b) of the said Act her
sentence is reduced including that of fine to the one that she has already undergone. She shall be
released forthwith unless detained in any other case."
5. Respectfully comparing the above mentioned divergent approaches adopted and opinions
expressed in the two sets of judgments referred to above we have observed that in the first set of
judgments no specific or particular reason had been recorded to conclude that it was not
necessary to obtain and send for chemical analysis a separate sample of every recovered packet
or of every cake/slab recovered and importance had primarily been attached therein to hardship
of thc prosecution or inconvenience to the investigating agency in arranging the same. Another
factor which had weighed with the Court in those cases was failure of the accused person to
throw challenge during his trial that the remaining substance not sent to the Chemical Examiner
for analysis was not narcotic substance. As against that the second set of judgments had laid
great stress and emphasis on the fact that the punishments provided in the Control of Narcotic
Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to
be taken that a court trying such an offence had to be convinced that the entire quantity allegedly
recovered from the accused person's possession was indeed narcotic substance. We, reverently
and respectfully, tend to agree with the latter view and would like to add that the rule of thumb
for safe administration of criminal justice is: the harsher the sentence the stricter the standard of
proof. It is of paramount importance to notice in this context that the sentences specified in the
Control of Narcotic Substances Act, 1997 depend upon the quantity of the recovered narcotic
substance and not upon the narcotic content of the recovered substance and, thus, quantity in
such cases is the determinative factor as far as the sentences arc concerned. It is, therefore,
absolutely necessary that in all such cases there should be no room for doubt as to the exact
quantity of the substance recovered and also as to the entire recovered substance being narcotic
substance. We may also observe that in such cases it is the accused person who is at the
receiving end of long and stringent punishments and, thus, safeguards from his point of view
ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the
prosecution. As is evident from the resume of the precedent cases mentioned above, the trend of
authority of this Court leans overwhelmingly in favour of obtaining and sending for chemical
analysis a separate sample of every separate packet/cake/slab of the substance allegedly
recovered from an accused person's possession and for its separate analysis by the Chemical
Examiner in order to confirm and establish beyond doubt that the entire quantity of the allegedly
recovered substance was indeed narcotic substance. It is our considered opinion that a sample
taken of a recovered substance must be a representative sample of the entire substance recovered
and if no sample is taken from any particular packet/cake/slab or if different samples taken from
different packets/cakes/slabs are not kept separately for their separate analysis by the Chemical
Examiner then the sample would not be a representative sample and it would be unsafe to rely on
the mere word of mouth of the prosecution witnesses regarding the substance of which no
sample has been taken or tested being narcotic substance. It may be true that at least in some
situations the Control of Narcotic Substances Act, 1997 stipulates disproportionately long and
harsh sentences and, therefore, for the purposes of safe administration of criminal justice some
minimum standards of safety are to be laid down so as to strike a balance between the
prosecution and the defence and to obviate chances of miscarriage of justice on account of
exaggeration by the investigating agency. Such minimum standards of safety are even otherwise
necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty
which cannot be left at the mercy of verbal assertions of police officers which assertions are not
supported by independent evidence provided by a Chemical Examiner.
6. We do not feel persuaded to agree with the reasoning that if an accused person had not
objected during the trial that the substance of which no sample had been taken or tested was not
narcotic substance then he is estopped from asserting in that regard at all future stages of the
case. It ought not to be lost sight of that if at the time of framing of the charge against him the
accused person had denied the allegation levelled against him by the prosecution, he had
suggested to the prosecution witnesses that nothing had been recovered from his possession or
custody and in his statement recorded under section 342, Cr.P.C. he had controverted the
allegation regarding recovery of narcotic substance from his possession or custody then mere
failure to challenge during the trial that the remaining untested recovered substance was not
narcotic substance should neither weaken the case of the defence nor strengthen the case of the
prosecution. We have observed that in such criminal cases generally no question is put to the
accused person at the time of recording of his statement under section 342, Cr.P.C. that the
recovered substance of which no sample had been taken or tested was also narcotic substance
and, thus, there is hardly any occasion in such cases for the accused person to raise any objection
in that respect. It is trite that a piece of evidence not put to the accused person at the time of
recording of his statement under section 342, Cr.P.C. cannot be used against him by the
prosecution. It is sometimes argued that an accused person ought to have applied before the trial
court either for retesting of the sample already sent to the Chemical Examiner for analysis or for
testing of the remaining recovered substance if he seriously raises a dispute in that regard. This
kind of an approach needs a lot of caution and the same has already been warned against by this
Court in the cases of The State v. Amjad Ali (PLD 2007 SC 85) and Muhammad Aslam (Amir
Aslam) and others v. District Police Officer, Rawalpindi and others (2009 SCMR 141). It has
been held in the said cases that such a course is to be allowed and resorted to only in
extraordinary cases and in extraordinary circumstances.
7. The learned Special Prosecutor for the Anti-Narcotics Force has laid great emphasis on the
provisions of section 29 of the Control of Narcotic Substances Act, 1997 according to which "In
trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused
has committed an offence under this Act------" and it has been maintained by him that the
prosecution's allegation that the entire quantity of the substance recovered from an accused
person is narcotic substance is to be presumed to be correct and it is for the accused person to
prove otherwise. We have, however, refused to subscribe to this submission for the simple
reason that in the cases of Kashif Amir v. The State (PLD 2010 SC 1052) and Muhammad Noor
and others v. The State (2010 SCMR 927) it has clearly been laid down that the initial onus to
prove the offence and recovery of narcotic substance from the accused person is always on the
prosecution and once the prosecution has discharged that onus to the satisfaction of the court it is
only then that the onus shifts to the accused person to establish falsity of the prosecution's
allegation against him. It goes without saying that the initial onus on the prosecution in such
cases includes the onus to prove that the entire substance allegedly recovered is in fact narcotic
substance and such onus can be discharged by the prosecution only if the samples of the
recovered substance sent to the Chemical Examiner for analysis are representative samples of the
entire quantity of the recovered substance.
8. 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 separate 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.
9. 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. In this view of the matter this appeal is partly allowed, the conviction of
the appellant recorded and upheld by the learned courts below for an offence under section 9(e)
of the Control of Narcotic Substances Act, 1997 is converted into one under section 9(b) of the
said Act and, applying the sentencing policy of the Lahore High Court, Lahore laid down in the
case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), the appellant is
sentenced to rigorous imprisonment for one year and three months and to pay a fine of Rs.9,000
(Rupees nine thousand only) or in default of payment thereof to undergo simple imprisonment
for three months and fifteen days. The benefit under section 382-B, Cr.P.C. shall be extended to
him. This appeal is disposed of in these terms.
10. The office of this Court is directed to send copies of this judgment to the honourable Chief
Justices of all the High Courts in the country, the Director-General, Anti-Narcotics Force and the
Inspectors-General of Police and the Prosecutors-General of all the Provinces so that this
judgment may be brought to the notice of all the judges, prosecutors and investigators dealing
with cases under the Control of Narcotic Substances Act, 1997.
M.H./A-2/S
Order accordingly.