SHARAFAT KHAN vs State Ss — 2022 PLD 281 SUPREME-COURT-AZAD-KASHMIR

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SHARAFAT KHAN VS State Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Constitution of Pakistan, Art. 10A---Possession of 25,000 grams of charas---Re-appraisal of evidence---Sample sent to Government analyst not collected from each independent slab of recovered narcotic---Sentence, reduction in---[Per Syed Mansoor Ali Shah, J [Majority view]: In the present case, 25 packets were recovered from the accused, each having 14 separate slabs of the alleged narcotic drug; thus, in fact, there were 350 (25 x 14) separate physically independent units of the alleged narcotic drug---In order to burden the accused with the liability of the entire quantity of the alleged narcotic drug recovered, the representative sample had to be taken from every physically separate and independent unit of the alleged narcotic drug, i.e., from all the 350 slabs of the alleged narcotic drug recovered from the accused---However only 25 samples of 5 grams were collected from each of the 25 packets, without specifying whether it was taken from one slab out of the 14 found in each packet, or that each 5-gram sample was obtained from all of the 14 slabs found in one packet---Prosecution had not even argued that the representative sample was taken from each of the 350 slabs, rather it is an admitted fact on part of the prosecution that 5-gram sample was taken from only one slab out of the 14 found in each packet---Thus, the prosecution was found to have proved only those parts of the charas allegedly recovered from the appellant to be the narcotic drug of which samples were taken and sent for analysis to the Forensic Science Laboratory , that is, about 1785 grams, not 25,000 grams as alleged---Accused had already served 9-years, 1-month and 20-days in prison---In view of the proved quantity of the charas recovered from him as being a narcotic drug, i.e., 1785 grams, his conviction was maintained but his sentence of life imprisonment was reduced to the imprisonment term already undergone by him while the fine of Rs.200,000/- was maintained]---[Per Qazi Muhammad Amin Ahmed, J. [Minority view]: Contents of the seizure memo confirmed that contraband in each packet comprised of integrated layers, inseparably constituting a composite unit and, thus, 5 grams separated from the corner of each packet squarely presented a representative sample---Samples were not only taken from each packet, they were kept separately for analysis that unambiguously confirmed the narcotic character of the seized contraband and, thus, through no mode of interpretation it could be possibly inferred that the remainder of the parcel was made up of a substance other than cannabis---Prosecution had established each limb of its case on the strength of "proof beyond doubt" from safe custody to transmission for forensic confirmation; there was no space to entertain any hypothesis other than accused's guilt---Sentence (of life imprisonment) awarded to the accused was mandatory in view of proviso to S.9 of the Control of Narcotic Substances Act, 1997]---Appeal was partly allowed.

SHARAFAT KHAN vs State Ss — 2022 PLD 281 SUPREME-COURT-AZAD-KASHMIR

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