2014 P Cr. L J 561
[Lahore]
Before Kh. Imtiaz Ahmad and M. Sohail Iqbal Bhatti, JJ
AZIZ ULLAH KHAN and others---Appellants
Versus
The STATE and others---Respondents
Criminal Jail Appeal No.103-J of 2010 and Criminal Jail
Appeal No.10 of 2012, decided on 23rd January, 2014.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 5, 9, 11, 13,
16, 45 & 46--- Possessing and trafficking narcotics---Award of
punishment---Jurisdiction of Special Court---Control of Narcotic Substances
Act, 1997, which was a special law, had provided for stringent and long
punishment---Sentences specified in the Act, would depend upon quantity of
recovered narcotic substances, and not the narcotic content of the recovered
substance---Special care to be taken in narcotic cases by putting the
prosecution to the strict test to prove its case---No room for doubt as to the
exact quantity of the substance recovered---Accused being on the receiving end
of long and strictest punishments, safeguards from his point of view should not
be allowed to be sacrificed at the altar of mere comfort and convenience of the
prosecution.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c), 14 & 15---Possessing and trafficking
narcotics---Denial of accused of allegation levelled against him---Effect---If
at the time of framing of charge, accused would deny the allegation levelled
against him by the prosecution; that nothing had been recovered from his
possession or custody; and that in his statement recorded under S.342, Cr.P.C.
he had controverted the allegation regarding recovery of narcotics from his
possession or custody, then mere failure to challenge during the trial that
remaining untested recovered substance was not narcotic substance, could
neither weaken the case of defence nor strengthen the case of the prosecution.
Nadir Khan
and another v. The State 1998 SCMR 1899; Ali Muhammad and another v. The State
2003 SCMR 54; Kashif Aamir v. The State PLD 2010 SC 1052; Muhammad Hashim v.
The State PLD 2004 SC 856; Ameer Zaib v. The State PLD 2012 SC 380; 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.
(c) Words and phrases---
----"Sample"---Meaning explained.
(d) Words and phrases---
----"Representative sample"---Meaning and
connotation.
(e) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9 & 32--- Possessing and trafficking
narcotics--- Articles connected with narcotics---Taking of samples---Where
wrappers, slabs, cakes, packets, boxes, containers, etc. were recovered, it was
mandatory to take separate sample from every separate packet, wrapper, slab,
box, container and cake to make it a 'Representative Sample' of narcotic
substance recovered.
(f) Administration of justice---
----Speedy disposal of cases---Sacrifice of justice to
obtain speedy disposal of cases,
could hardly be
termed as 'justice'---Balance ought to be maintained
between the two commonly known maxim; "justice delayed was justice denied",
and 'justice rushed was justice crushed'---Speed and efficiency, should not be
at the expense of justice.
(g) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)--- Possessing and trafficking narcotics---
Appreciation of evidence---Sentence, reduction in---Co-accused had already
served out 16 years, 11 months and 22 days, including the remissions; and
accused had served out of 17 years, 6 months and 14 days including the
remissions---Both accused persons, in circumstances, had served out more
sentence as provided in sentence policy, laid down in Ghulam Murtaza v. The
State PLD 2009 Lahore 362---Conviction of accused persons under S.9(c) of
Control of Narcotic Substances Act, 1997 was upheld, but their sentence was
reduced to already undergone by them including the fine.
Ghulam Murtaza and another v. The
State PLD 2009 Lah. 362 rel.
Raja
Shahzad Anwar and Raja Ghanem Aabir Khan for Appellants.
Raja
Tauqeer Ahmad Satti, Special Public Prosecutor, ANF for the State.
Date of
hearing: 17th December, 2013.
JUDGMENT
M. SOHAIL
IQBAL BHATTI, J.---Through this Judgment we are inclined to decide Criminal Jail
Appeal No.10 of 2012 titled Baz Muhammad v. State and Criminal Jail Appeal
No.103 of 2010 titled Aziz Ullah Khan v. State as the identical questions of
law and facts are involved in both the appeals, which arise out of same case
F.I.R. No.07/2005 dated 15-3-2005 under section 9(c) read with sections 14/15
Control of Narcotic Substances Act, 1997 registered at Police Station ANF,
Attock.
2. Initially,
challan was submitted before Special Court (C.N.S.), Rawalpindi against both
the appellants namely Aziz Ullah Khan and Baz Muhammad. However, during the
trial Baz Muhammad was declared a juvenile and separate challan against him was
submitted with learned Sessions Judge, Attock.
3. According
to the story narrated in the F.I.R., one Naseeb Haider Zaidi, Sub-Inspector,
Police Station ANF, Attock was posted as Police Station ANF, Attock and on the
same date, a secret information came to him that two persons had planned to
smuggle huge quantity of Charas through Toyota Hiace No.C-1779/Sawat from
Peshawar to Rawalpindi. Upon this information a raiding party was arranged and
at about 2-30 p.m. the informed vehicle came from the side of Peshawar; the
said vehicle was stopped, and thereafter on pointation of the informer two
persons who were sitting on the rear seat were apprehended and during
interrogation disclosed their names as Aziz Ullah Khan and Baz Muhammad. The
backside of the vehicle was opened and it was disclosed by the appellants that
Charas was lying underneath the last rear seat of the vehicle. Three Cartons
lying under the seat were unloaded and the said cartons were opened. Two
cartons contained light blue coloured tin boxes 19 in number. When these boxes
were opened, Charas was found in the shape of Slabs, third carton when open
contained tin boxes of the same colour which were seven in number. One box
contained Charas in the shape of slab and the remaining six boxes contained
Charas Garda. 19 slabs of Charas weighed 3 Kg each and one slab weighed 1.6 Kg;
total weight of Charas slabs came to 58.6 Kg. Charas Garda in each box weighed
2.3 Kg and total weight came to 11.500 Kg.
4. According
to the prosecution, the alleged narcotics substance was taken into possession
through recovery memo (Exh-PB). Out of the recovered slabs of Charas, a small
quantity was taken from each slab, which was put in consolidated form in one
packet weighing 30 grams. Similarly, out of the recovered Charas Garda, a small
quantity was taken from each tin
box which was
consolidated in one packet
weighing 10 grams. The 30 grams Charas taken as a sample was again
bifurcated into 3 packets of 10 grams each, which were sent to the Chemical
Examiner and according to the report of the Chemical Examiner (Exh.PF) three
sealed packets contained Charas and one packet contained Charas Garda which can
be used to cause intoxication.
5. After the
investigation, both the appellants were found guilty under section 9(c) read
with sections 14/15 of C.N.S. Act, 1997, report under section 173, Cr.P.C. was
submitted before Judge Special Court, C.N.S., Rawalpindi; however during the
trial, appellant Baz Muhammad was declared juvenile and he was tried by
Additional District Judge, Attock. After conclusion of trial, Aziz Ullah Khan
through judgment dated 18-3-2010
was convicted under
section 9(c) read
with section 14/15 of C.N.S. Act,
1997 and was sentenced to imprisonment for life with fine of Rs.500,000. In
default whereof, he was further directed to undergo simple imprisonment for one
year. Accused Baz Muhammad was also convicted by Additional Sessions
Judge/Juvenile Court Attock on
3-11-2011. He was
sentenced to imprisonment
for life along with fine
of Rs. 200,000 and
in case of default of payment of the fine, he was
sentenced to undergo six months' simple imprisonment.
6. The only
argument advanced before this Court by the learned counsel for the appellants
was that the Charas allegedly recovered from the appellant's possession was
contained in 20 boxes (19 containing Charas
Slabs weighing 3
Kg each and one containing Slab
weighing 1.6 Kg) and Charas Garda was contained in 5 boxes (each box containing
2.3 Kg Charas Garda); but instead of taking separate samples from every
box/slab, only a small and unspecified quantity had been taken as a sample from
every slab and then all such small quantities were put together in one packet
weighing 30 Grams. Similarly, Charas Garda was contained in five boxes weighing
2.3 Kg each; only a small and unspecified
quantity had been taken as a sample from every box and then all such
small quantities were put together in one packet weighing 10 Grams. The 30 Gram
packet of Charas was again bifurcated into three packets of 10 Gram each to be
sent to the Chemical Examiner for analysis.
7. It had been
maintained by the learned counsel for the appellants that it was imperative to
obtain a separate sample not only from every slab/box allegedly recovered from
the appellants' possession (25 boxes) and then all such samples i.e. 25 in
number were to be sent to the chemical examiner separately for analysis in
order to confirm that every box/slab contained Charas but that was not done in
present case as is evident from the F.I.R. (Exh.PA, the memorandum of recovery
Exh.PB and report submitted by the Chemical Examiner Exh.PF). It has, thus been
submitted by the learned counsel for the appellants that the sample prepared in
respect of Charas which initially weighed 30 Grams could only be a
representative of one slab of Charas weighing 3 Kg and the sample prepared in
respect of Charas Garda could only be a representative sample of 2.3 Kg.
8. As against
that the learned Special Public Prosecutor Anti-Narcotics Force has maintained
that it was not a legal requirement to take a separate sample from every
box/slab of the Narcotics Substance and to send every such sample to the
Chemical Examiner for analysis and that the appellants had never claimed before
the learned trial Court that untested recovered substance was not a narcotics
substance. It has, thus been maintained by him that the conviction and the
sentence of the appellants for entire quantity of 71.1 Kg Charas/Charas Garda
had correctly been recorded by the learned trial Court.
9. After
hearing the learned counsel for the parties and going through the record of the
case, we have observed that the question of taking samples had always remained
a point of controversy in numerous cases decided by the honourable Supreme
Court of Pakistan and divergent opinions had been expressed by different
honourable Benches of the august Supreme Court.
10. Initially in
the case titled "Nadir Khan and another v. The State" (1998 SCMR
1899) it was held by Three Member Shariat Appellate Bench 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)
it was held
by the August
Supreme Court as under:--
"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 thousands 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 have no merit and substance."
The same view was
held by Three Member Bench of the august Supreme Court in case of "Kashif
Aamir v. The State" (PLD 2010 SC page 1052).
It is, however
observed that the different view of the matter had been taken by the honourable
Supreme Court in the case of "Muhammad Hashim v. The State" (PLD 2004
SC 856) and it had been observed that since only four grams of Charas was taken
out from total 288 Rods and nothing was available on record to show whether
sample for examination by Chemical Examiner was taken out 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 etc. It was for the first
time observed by the honourable Supreme Court that C.N.S. Act, 1997 provided
stringent sentences, therefore, for such reason Act, 1997 has to be construed
strictly and the relevant provisions of law are to be followed strictly in the interest
of justice and it was held that it would be presumed that the 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 be not possible to hold that those
were the Rods of Charas or otherwise and the honourable Supreme Court of
Pakistan in this judgment observed that the case of prosecution had become
doubtful and as such sentence awarded by the trial Court and maintained by the
High Court was held to be not sustainable.
11. Since there
had been divergent approaches adopted and opinions expressed in different
judgments by the honourable Supreme Court of Pakistan, the matter was finally
resolved by Five Members Full Bench of the honourable Supreme Court of Pakistan
in a case of "Ameer Zaib v. The State" (PLD 2012 SC 380). It was held
by the honourable Full Bench that rule of thumb for safe administration of
criminal justice is the harsher the sentence the stricter the standard of
proof.
12. It is, thus
of paramount importance to mention that the sentence specified in C.N.S. Act,
1997 depend upon the quantity of the recovered narcotics substance and, thus,
quantity is the determinative factor as far as the sentences are concerned. It
is, 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 entire
recovered substance is a narcotic substance. We may also observe that in these
cases, it is an accused person who is at the receiving end of long and
stringent punishments and thus safeguards from his point of view should not be
allowed to be sacrificed at the altar of mere comfort and convenience of the
prosecution.
13. The
honourable Supreme Court in Ameer Zaib's case therefore held that a separate
sample of every separate packet/cake/slab of the substance allegedly recovered
from an accused person be sent for separate analysis by the Chemical Examiner
in order to confirm and establish beyond doubt that the entire quantity of
allegedly recovered substance was indeed a narcotic substance. The honourable
Supreme Court went on to observe as under:--
"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 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
situation, the Control of Narcotic Substances Act, 1997 stipulates
dis-proportionately long and harsh sentence and, therefore, for the purpose 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".
14. As far the
contention of the learned Special Public Prosecutor A.N.F. that since the
appellants had not objected during the trial that the substance of which no
sample had been taken or tested was not narcotics substance and the appellants
are estopped from asserting in that regard at all future stages of the case. We
are not persuaded to agree with this reasoning. We should not lose sight of the
fact that if at the time of framing of charge, the accused person denies the
allegation levelled against him by the prosecution; he has 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 allegations regarding recovery of narcotic substance from his
possession or custody then mere failure in challenging during the trial that
remaining untested recovered substance was not narcotics substance could
neither weaken the case of defence nor strengthen the case of the prosecution.
It is sometimes argued that an accused person ought to have applied before the
trial Court either for retesting of the sample sent to the Chemical Examiner
for analysis or for testing of 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 the honourable Supreme
Court in the cases of "The State v. Amjad Ali" (PLD 2007 SC page 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 case
that such a course is to be allowed and resorted to only in extra-ordinary
circumstances.
15. The
honourable Supreme Court in Ameer Zaib case has discussed this aspect of trial
under C.N.S. Act, 1997 as under:--
"The
learned special prosecutor for 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 shall be maintained by him that the prosecution
allegation that the entire quantity of substances recovered from an accused
person is a narcotics substance is presumed to be correct and it is for the
accused person to prove otherwise. We have, however refused to subscribe to
this submission for simple reason that in cases of Kashif Aamir 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 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 has only been then that the onus shifts to
accused person to establish falsity of prosecution allegation against him. It
goes without saying that 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.
For the
purpose of clarity and removal of confusion, it is declared that where any
narcotic substance is allegedly recovered while contained in different packets,
wrappers or 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".
16. Although,
the word "Sample" or "Representative Sample" has not been
denied in C.N.S. Act, 1997.
The word sample according to Black's Law Dictionary (6th
Addition) has been defined as under;--
"Sample" A specimen. A small quantity of any commodity
presented for inspection or examination as evidence of the quality of the
whole; as a sample of cloth or wheat.
The term
sample defined in Concise Oxford Dictionary is as under:-
"Sample" Small separated part of something illustrating the
qualities of mass----.
This would
now take us to The connotation of
"Representative Sample".
Representative Sample would mean a small quantity of something such as
customer, data, people, products or material whose characteristics represents
(as accurately as possible) the entire batch, lot etc.
This leads us to an irresistible conclusion
that when a sample is not "Representative" of the entire lot, it
would result into a sampling error.
The above
definitions of the word "Sample" and "Representative
Sample" within the purview of C.N.S. Act, 1997 makes it explicit that the
sample sent for chemical examination must be a Representative Sample of each
separate wrapper/slab/packet or box. If it is not the Representative Sample of
each wrapper/slab/packet or box, it cannot be termed as a sample of the entire
narcotic substance allegedly recovered from the accused; keeping in view the
unproportionately harsher and stringent punishments provided in the C.N.S. Act,
1997. The convenience of the prosecution cannot be allowed to circumvent the
fundamental rights of the accused.
17. In the case
in hand, 25 boxes were recovered, 19 boxes contained a slab of Charas weighing
3 Kg each, one box contained a slab of Charas weighing 1.6 Kg, five boxes
contained 2.3 Kg Charas Garda, but according to the prosecution only a small
and unspecified quantity was taken from
every slab of Charas which was then mixed up and made into one
sample of 30 Grams which was thereafter bifurcated into
three samples of 10 Grams each and sent to Chemical Examiner for analysis, but
we are inclined to hold that three samples of Charas weighing 10 Grams each
were not three independent samples but they were representative of initial
sample of 30 Grams which was prepared after
taking small and
unspecified quantity from
20 slabs of Charas (19 weighing 3 Kg each and One
weighing 1.6 Kg) Similarly, from five boxes of Charas Garda, a small and
unspecified quantity was taken which was mixed and one parcel of 10 Grams was
sent to the Chemical Examiner for analysis and the report in that regard by
Chemical Examiner had been received in positive, therefore for safe
administration of justice, we conclude that the appellants were liable to be
held responsible for having slabs of Charas and Charas Garda weighing 5.3 Kg.
18. We are
inclined to hold that C.N.S. Act, 1997 is a special law which provides for
stringent and long punishments. The sentences specified in C.N.S. Act, 1997
depend upon quantity of recovered Narcotic Substance and not upon the Narcotic
content of the recovered substance. Therefore, special care should be taken in
these cases by putting the prosecution to the strict test to prove its case and
there should be no room for doubt as to the exact quantity of the substance
recovered and also to ensure that the entire recovered substance is a Narcotic
Substance.
Where
wrappers, slabs, cakes, packets, boxes, containers etc are recovered, it is
mandatory to take separate sample from every separate packet, wrapper, slab,
box, container and cake to make it a Representative Sample of Narcotic
Substance recovered.
It is true
that in exceptional cases huge quantity of narcotic substance is recovered
which could cause great hardship and inconvenience in sending and transporting
the same and would also cause delay in getting the report and delay in disposal
of cases. However, we would add a note of caution that sacrifice of justice to
obtain speedy disposition of cases can hardly be termed as justice. A balance
ought to be maintained between the two commonly known maxims, "Justice
delayed is justice denied" and " justice rushed is justice
crushed". We are not suggesting that
speed and efficiency ought not to be ultimate goal in criminal administration
of justice but it should not be at the expense of justice.
The mere
convenience of prosecution cannot be given precedence over the fact that the
prosecution is to be put to the strictest test of proof keeping in view the
harsher and stringent punishments provided in C.N.S. Act, 1997.
19. The report
from jail received
through letter No.27867 dated 10-10-2013 reveals that
appellant Baz Muhammad had already served out 16 years 11 months and 22 days
including the remissions while the report from jail sent through letter No.5367
dated 9-10-2013 shows that appellant Aziz Ullah Khan had served out sentence of
17 years six months and 14 days including the remissions. In this way they have
served out more sentence as provided in the sentencing policy laid down in the
case of "Ghulam Murtaza and another v. The State" (PLD 2009 Lahore
362).
20. Accordingly,
though, we uphold the conviction of appellants under section 9(c) of Control of
Narcotic Substances Act, 1997 but reduce their sentences to already undergone
by them including the fine.
21. Both the
appeals stand disposed of in the above mentioned terms.
HBT/A-8/L
Sentence
reduced.
