ScriptScript 

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 29-3-2002
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. (Exhibit-PA), 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 three-member 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 three-member
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 two-member
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 above-noted 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 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. ----

           

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.