2010 SCMR 1162 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Gulshan Ara, the appellant, was tried in a case registered vide F.I.R. No.421 dated 10-8-2002 under section 9(c) of Control of Narcotic Substances Act, 1997 at Police Station Kunjah, District Gujrat on the allegation that on a source report a raid was conducted and from secret cavities of her kitchen 17 packets of Charas weighing 17 kilograms were recovered. The trial culminated in her conviction vide judgment dated 5-5-2003 and she was sentenced to life imprisonment as also a fine of Rs.10,00,000 in default whereof she was to undergo R.I. for two years. The learned High Court vide impugned judgment dated 24-1-2005 dismissed the appeal upheld the judgment of the learned trial Court.

2. It was a jail petition and none appeared for the appellant. However, with the assistance of learned Special Prosecutor-General, ANF and learned State counsel we have appraised the evidence and have heard them at some length. Leave was granted by a Bench of this Court on 27-1-2006 on the grounds as follows:

"Since we have granted leave in Jail Petition No.478 of 2003 today, as such leave to appeal is also granted in this case to consider contentions that only 6 grams out of one packet of Charas have been sent for chemical examination, whereas the case of prosecution as unfolded in F.I.R. is that 17 Kgs. of Charas was recovered out of 17 packets. Both the Criminal Appeals arising out of Jail Petition No.478 of 2003 and Jail Petition No.137 of .2005 be heard together."

3. During trial, the prosecution examined six witnesses namely, Muhammad Nawaz, A.S.-I. (P.W.1) Dr. Anjum Ara (P.W.2), Ijaz Ahmad, Constable (P.W.3) Mubashar Nawaz (P.W. 4) Safwat Ullah, S.-I. (P.W.5) and Amir Ali Shah, Constable (P.W.6). The appellant, when examined under section 342, Cr.P.C., denied the prosecution story and attributed false implication to the brother of her husband with whom she alleged that she had enmity and litigation. Her precise plea was as follows:-- "I am innocent. I have been falsely involved in the present case on the instigation of Sher Afgan who is my Jaith. My Jaith Sher Afgan demanded the hand of my daughter for his son but I refused and due to which .he bore grudge against me in his mind and started threatening me to desert from the house. He thereafter managed in connivance with local police to plant the false case against me. He also abducted my daughter Afia aged 17 years and my son Hamza aged nine years, after my arrest. Sher Afgan after my arrest managed the murder of Arif Malik and he implicated my son and me in the murder of Arif Malik. Both cases are false. The whereabouts of my children are not known to me. I am destitute. I am innocent."

4. Learned Special Prosecutor-General, ANF defended the impugned judgment by submitting that the prosecution case comprises of witnesses with whom the appellant had no enmity; that the plea raised in her statement under section 342, Cr.P.C. is an afterthought; that the report of chemical analyst confirms that contraband recovered was charas. Learned State counsel also defended the impugned judgment by submitting that there are concurrent findings of guilt, that the defence plea was an afterthought and that there is no merit in the appeal which is liable to be dismissed.

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 Special-Prosecutor-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. Second, it was conceded by the Investigating Officer (P.W.5) that the house in question was not in the exclusive possession of the appellant and that "other family members are also residing in the same house". Third, it is also admitted in his examination-in-chief that it was an open kitchen and it is not the prosecution case that contraband narcotic was recovered from the secret boxes on the pointation of the appellant. Fourth, the appellant had taken a specific plea in her statement under section 342, Cr.P.C. of malicious prosecution, on account of enmity with one Sher Afgan, who is brother of her husband. This plea was specifically put to the Investigating Officer during cross-examination. Obviously he could not have conceded but he did not dispute that said Sher Afgan was known to him as the said person according to him was involved in a narcotics case. He, however, did not deny that the appellant was nominated in a murder case on the charges of instigation and abetting at a time when she was in District Jail in the instant case.

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:

"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 some 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 sale 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."

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. (Sd.) Tassaduq Hussain Jillani, J. (Sd.) Mahmood Akhtar Shahid Siddiqui, J. I have appended my separate note. (Sd.) Rahmat Hussain Jafferi, J. RAHMAT HUSSAIN JAFFERI, J.

I have the privilege of going through the judgment authored by my learned brother Tassaduq Hussain Jillani, J and signed by my learned brother Mahmood Akhtar Shahid Siddiqui, J in which the appellant has been found" guilty of possession of 17 kilograms of Charas recovered by the P.Ws. from the kitchen of her house. I fully agree with the said finding but further add that making the appellant responsible for the recovery made from the premises jointly occupied by other family members is in consonance with rule laid down by this Court in the case of State v. Qazi Pervez Iqbal PLD 1978 SC 64.

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 Covasjee 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 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. N.H.Q./G-5/SC Order accordingly.