Islam Noor Vs The State

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Criminal Appeal No.1092-P/2025

Islam Noor........................................Appellant. Versus The State through Special Prosecutor ANF............................................Respondent.

Present:

Mr. Amjid Noor Afridi, Advocate, for the appellant.

Mr. Tariq Khan Kakar, Special Prosecutor ANF, for the State/ANF.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through the instant appeal, the appellant/convict namely Islam Noor s/o Stana Gul has challenged the order and judgment of learned Judge Special Court CNS-II), Peshawar dated 31.10.2025, whereby he was convicted and sentenced under Section 9(1) 6(c) of The Control of Narcotic Substances Act, 1997 to Rigorous Imprisonment (R.I) for ten (10) years with a fine of Rs.300,000/- and in case of default in payment thereof to further undergo six (06) months simple imprisonment (S.I), in a case registered against him vide FIR No. 71/2024 dated 25.10.2024 under

Section 6, 9, 6(c), 8, 9(1) CNS Act 1997 at Police Station ANF, Peshawar. Benefit of section 382-B Cr.PC was also extended to the appellant/convict.

2.Precisely, the facts of the present case are that after registration of the case, a full-fledged investigation was carried out and then challan against the appellant/convict was put in Court where charge was framed and served upon him to which he pleaded not guilty and claimed trial. In support of its case, the prosecution produced as many as nine

(09)witnesses; however, after hearing arguments from both sides, the learned trial Court, through the impugned order and judgment dated 31.10.2025, convicted and sentenced the appellant/convict as mentioned in Para No.1 of this judgment. The appellant/convict has now challenged the aforesaid order/judgment through the instant appeal.

3.Arguments heard and record perused.

4.It is the case of the prosecution, as set by Munawar Hussain, ASI (PW-3), in the murasila Ex.PW-3/2 to the effect that on the date and time of occurrence, he, alongwith other ANF officials, was present at the search counter of international departure hall at Bacha Khan International Airport Peshawar and when by then passengers of Flight

No.ER75, scheduled from Peshawar to Sharjah, was being boarding when in the meanwhile, he got information that a person with the name of Islam Noor (appellant herein) will smuggle heroin filled capsules in his abdomen through the said flight and as such after receiving the said information, checking of passengers was continued when in the meanwhile, the said person came, having his passport and air ticket in his right hand and a shoulder bag in his left hand. He was interrogated and was asked regarding the presence of narcotics filled capsules in his abdomen. Initially, he hesitated, but later admitted the presence of the same, therefore, he was sent to Khyber Teaching Hospital (KTH) for medical examination in the presence of witnesses; and after 48 hours, through medical process, 99 heroin filled capsules were extracted from his abdomen, which were weighed on digital scale and was found to be 580 grams of heroin.

5.In view of the above facts and

circumstances, the prosecution was duty bound to have proved that all the 99 capsules were containing heroin; however, in this case, the prosecution has compromised over this settled jurisprudence as the doctor, namely Muhammad Raza Saeed, who has extracted these 99 capsules from the abdomen of

the appellant, has appeared in the witness box as PW-8 and who has stated that after completion of process of extraction of 99 narcotics filled capsules from the abdomen of accused/appellant, he handed over the said 99 narcotics filled capsules alongwith the relevant medical documents to Inspector Muhammad Aqeel Shehzad for onward

investigation. The said Muhammad Aqeel Shehzad has appeared in the witness box as PW-9 and who has stated that on 28.07.2024, he departed from the police station in the official vehicle, reached KTH Peshawar and met with Dr. Raza Saeed (PW-8) and who handed him over 99 narcotics filled capsules as were already extracted from the abdomen of the appellant. The said PW-9 has further stated that in the presence of witnesses and on cutting through cutter and on opening the 99 narcotics filled capsules were found containing heroin and then he amalgamated all the recovered narcotics and placed the same in a transparent sack and on weighing it the same was found as 580 grams’ heroin. He further placed the said heroin alongwith transparent sack into another white cloth sack by affixing 2/2 monogram of “MAS” and on arrival from KTH, he handed over these parcels to the Moharrar of police station namely Iqbal Hussain for keeping the same

at the police station malkhana for safe custody. The Moharrar of police station, namely Iqbal Hussain, has appeared in the witness box as PW-5 and he has stated that on 28.07.2024, he received 02 sealed parcels i.e. parcel No.1 containing 580 grams of heroin and parcel No.2 containing 99 empty capsule shells, which he deposited in malkhana. He has further stated that on the directions of the Inspector Muhammad Aqeel Shehzad (PW-9), he called the driver Feroz Shah (PW-1) and handed him over parcel No.1, which was containing 580 grams’ heroin, alongwith route certificate and relevant documents, for its delivery to FSL, which he accordingly deposited the same to the FSL and on return, he handed over the relevant documents having the sign and stamp of the concerned FSL official. The carrier of the said parcel No.1 has also appeared in the witness box as PW- 1, who has endorsed the factum of taking parcel No.1 containing 580 grams heroin to the FSL. In view of the above, though 580 grams heroin was sent to the FSL for the examination that as to whether the same is heroin or not; however, the FSL authorities as reflects from the FSL report Ex.PW- 9/5 that it has examined only 10 grams, whereas the remaining quantity of 570 grams was sealed and

returned to the seizing officer. In view of the above admitted fact when on one hand the 99 capsules were statedly recovered from the abdomen of the appellant and then when the same were handed over by Dr. Raza Saeed (PW-8) to Inspector Muhammad Aqeel Shehzad (PW-9) then the Investigating Officer, at the time of opening these 99 capsules, was required to have separated, sealed the narcotics recovered from each capsule or he should have been separated samples from each capsule; however, he, instead of sealing the recovered narcotics from each capsule separately or separating samples from the content of each capsule, had amalgamated all the heroin allegedly recovered from the 99 capsules, which was an illegality on his part; however, as a matter of extra caution, he deposited the whole recovered contraband of 580 grams in the malkhana and then the whole 580 grams was sent to the FSL; however, as reflects from the FSL report that only 10 grams out of 580 grams have been examined, which has turned out to be heroin, therefore, in such circumstances, the prosecution has not been able to prove that all the 99 capsules were containing heroin and at the most, the prosecution has been able to prove that 10 grams of contraband has been

recovered from the present appellant and thus the appellant could not be convicted and sentenced for the recovery of 580 grams. In a case1, the Hon’ble Supreme Court has held that 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 “Ameer Zeb vs. The State” reported as PLD 2012 Supreme Court 380

Substances Act, 1997. In a case2, the Hon’ble Supreme Court has held that instead of taking 44 separate samples of the recovered substance only one consolidated sample weighing 200 grams had been separated from the recovered substance which sample had subsequently been tested positive by the Chemical Examiner. In view of the law declared by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) only one kilogram of charas could have been considered against the appellant for the purposes of his conviction and sentence. Similarly in another case3, the Hon’ble apex Court has held that according to the prosecution recovery in this case had been made in respect of charas pukhta weighing 162 kilograms contained in 162 packets weighing one kilogram each and charas kham weighing 34 kilograms contained in 34 packets weighing one kilogram each and after the said recoveries one consolidated sample of 100 grams was separated from all the packets containing charas pukhta and one consolidated sample weighing 50 grams had been separated from the packets containing charas kham. According to the law declared by this Court in “Abdul Hameed vs. The State” reported as 2016 SCMR 707 “Para Din and others vs. The State” reported as 2016 SCMR 806

the case of Ameer Zeb v. The State (PLD 2012 SC

380)the weight of two packets, i.e. two kilograms of charas could have been considered against Jillani appellant for the purposes of his conviction and sentence. Likewise, in a case4, the Supreme Court has held that the FIR as well as the report of the Chemical Examiner confirm the fact that out of the recovered substance only one consolidated sample weighing 84 grams had been separated for chemical analysis. In view of the law declared by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC

380)the weight of only one packet, i.e. two kilograms of charas could have been considered for the purposes of the appellant's conviction and sentence. The Hon’ble apex Court in another case5 has held that the F.I.R. as well as the Memorandum of Recovery show that a consolidated sample of five hundred grams had been separated from the four bags taken into possession in this case and no separate sample had been secured and tested vis- a-vis the substance contained in each bag. The consolidated sample of five hundred grams of the recovered substance was then tested positively by the Chemical Examiner. It has already been held by “Abdul Sattar vs. The State” reported as 2016 SCMR 909 “Mst. Nasreen Bibi vs. The State” reported as 2014 SCMR 1603

this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) that a sample has to be secured from every bag or packet of narcotic substance recovered in a case and each such sample is to be separately tested by a Chemical Examiner. In the case in hand only one consolidated sample of five hundred grams had been secured and tested and, thus, only one bag out of the four bags recovered could be counted towards the appellant's guilt. If four bags contained forty kilograms of poast then one bag could be said to have contained ten kilograms of poast and it is only that quantity which could be considered against the appellant for the purposes of her conviction and sentence.

6.It would also be merit to mention here that Inspector Muhammad Aqeel Shehzad (PW-9) has admitted that after opening the capsules when he found heroin therein, he amalgamated the same and then put all these in a white sack ( )تھیلیand he has weighed the recovered heroin alongwith the sack, therefore, the net weight of the recovered heroin has also not been established by the prosecution and thus in view of above facts and circumstances and the jurisprudence developed so for on the subject, the learned trial Court has wrongly convicted the appellant for the recovery of 580 grams of heroin as

punishable under Section 9(1)6(c) of The Control of Narcotic Substances Act, 1997, as the said provision would be applicable where the recovered quantity ranges from 500 grams to 1999 grams;

however, as observed hereinabove that since the prosecution has not been able to prove that the entire 580 grams recovered from the appellant was in fact heroin, rather it has been able to prove that 10 grams of heroin has been recovered from him and thus the appellant has wrongly been convicted and sentenced under Section 9(1)6(c) of The Act of 1997 for ten (10) years, rather his case would be covered under Section 9(1)6(a) of the said Act, which bears an imprisonment which may extend to seven years but shall not be less than 18 months.

7.We also noted and as reflects from the card of arrest of the appellant as well that appellant is 18 years of age and is a first offender and he has never been indulged in such like activities in the past;

therefore, in the circumstances of the case, we partially allow the instant appeal and while maintaining the conviction awarded to appellant, his sentence is, however, reduced from ten (10) years under Section 9(1)6(c) of The Control of Narcotic Substances Act, 1997 to eighteen (18) months under Section 9(1)6(a) of the said Act; whereas rest

of the impugned judgment with regard to payment of fine and benefit under Section 382-B Cr.P.C shall remain intact.

Announced:

CHIEF JUSTICE

--sd--

JUDGE

(D.B) Hon’ble Mr. Justice S.M. Attique Shah, Chief Justice & Hon’ble Mr. Justice Muhammad Ijaz Khan

(Shahid Nawaz, Steno)