2014 PLP 1603 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Mst. Nasreen Bibi appellant was tried in case F.I.R. No.526 registered at Police Station Shera Kot, District Lahore on 18-10-2004 in respect of an offence under section 6 read with section 9(c) of the Control of Narcotic Substances Act, 1997 and vide judgment dated 5-1-2006 handed down by a learned Additional Sessions Judge, Lahore she was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 997 and was sentenced to imprisonment for life and to pay a fine of Rs.1,00,000 or in default of payment thereof to under go simple imprisonment for two years. The benefit under section 382-B, Cr.P.C. was extended to her. The appellant challenged her conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 250 of 2006 which was heard and dismissed by a learned Division Bench of the said Court vide judgment dated 5-7-2011. Hence, the present appeal by leave of this Court granted on 18-1-2012.

2. We have heard the learned counsel for the appellant and the learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the record of the case with their assistance.

3. We have observed that according to the prosecution the appellant had been apprehended while in possession of four bags containing poast and the total weight of the narcotic substance contained in those four bags was forty kilograms. The F.I.R. as well as the Memorandum of Recovery show that a consolidated sample of five hundred grams had been separated from the four bags taken into possession in this case and no separate sample had been secured and tested vis-a-vis the substance contained in each bag. The consolidated sample of five hundred grams of the recovered substance was then tested positively by the Chemical Examiner. It has already been held by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) that a sample has to be secured from every bag or packet of narcotic substance recovered in a case and each such sample is to be separately tested by a Chemical Examiner. In the case in hand only one consolidated sample of five hundred grams had been secured and tested and, thus, only one bag out of the four bags recovered could be counted towards the appellant's guilt. If four bags contained forty kilograms of poast then one bag could be said to have contained ten kilograms of poast and it is only that quantity which could be considered against the appellant for the purposes of her conviction and sentence. In this view of the matter this appeal is dismissed to the extent of the appellant's conviction for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 but the same is partly allowed to the extent of the appellant's sentence of imprisonment which is reduced to that already undergone by her. The sentence of fine passed against the appellant is maintained but it is ordered that in default of payment of fine she shall undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. has already been extended to the appellant. This appeal is disposed of in these terms. MWA/N-5/SC Order accordingly.