2013 SCMR 1538
2013 SCMR 1538
2013 S C M R 1538
NADEEM ASHRAF---Petitioner
Versus
(On appeal from the judgment dated 23-4-2013 passed by the Lahore High Court, Lahore in
Criminal Miscellaneous No.3753-B of 2013.)
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(a) & 9(c)---Constitution of
Pakistan, Art. 185(3)---Possession of narcotic--- Bail, refusal of--- Narcotic contained in different
packets/ parcels mixed together before being sent for chemical analysis---Allegation against accused was
that he had booked cartons for cargo, and upon search of said cartons heroin weighing 945 grams was
recovered from 26 elevators and 420 grams of heroin was recovered from the other 10 elevators---Pleas
of accused were that entire heroin recovered from 26 elevators was mixed together and only 10 grams
were sent for chemical analysis; that heroin recovered from other 10 elevators was also mixed together
and only 10 grams was sent for chemical analysis; that in such circumstances the total heroin which was
sent and tested by the chemical examiner would come only to 78.34 grams and he could only be
convicted for the heroin which was sent and tested for analysis in view of the law laid down in the case of
Ameer Zeb v. State (PLD 2012 SC 380); that offence against him in such circumstances would fall
within the mischief of S. 9(a) and not S.9(c) of Control of Narcotic Substances Act, 1997---Validity---
Judgment to which reference was made by accused i.e. Ameer Zeb v. State (PLD 2012 SC 380) was a
criminal appeal, wherein the entire evidence had been led---Trial in the present case was yet to commence
and it would be presumptuous on part of the accused to infer that the prosecution would lead evidence
only to the extent of the weight to which he had made reference---Prosecution was free to lead further
evidence in the present case and to request the court that it be allowed to send the entire narcotics
allegedly recovered from the accused for chemical analysis---Accused was refused bail in
circumstances---Petition for leave to appeal was dismissed accordingly and leave was refused.
Mushtaq Ahmed Moha, Advocate Supreme Court and Mahmud ul Islam, Advocate-on-Record for
Petitioner.
Sahibzada Anwar Hameed, Special Prosecutor, Anti-Narcotics Force for the State.
JUDGMENT
TASSADUQ HUSSAIN JILLANI, J.---Petitioner seeks bail in a case registered vide F.I.R. No.
24 dated 7-9-2012 under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station
ANF, Sialkot wherein the allegation is that on the fateful day he came to the office of the Skynet
cargo, Sialkot to book two cartons and that when he was apprehended and the cartons were opened
heroin weighing 945 grams was recovered from 26 elevators and 420 grams of heroin was recovered from
the other 10 elevators. According to learned counsel the entire heroin recovered from 26 elevators was
mixed together and only 10 grams was sent to the office of the Chemical Examiner for analysis and
similarly the heroin recovered from the other 10 elevators was also mixed and only 10 grams was sent for
analysis. The total heroin which was sent and tested by the office of the Chemical Examiner, in the afore-
referred circumstances, he added, would come only to 78.34 grams and the petitioner can only be
convicted for the heroin which was sent and tested for analysis in view of the law laid down by this Court
in Ameer Zeb v. State (PLD 2012 SC 380). The offence in these circumstances, he further added, would
fall within the mischief of section 9-A of the C.N.S.A. and not 9-C.
2. Learned Special Prosecutor, Anti-Narcotics Force opposed the petition and submitted that the case
relied upon by the petitioner is an appeal case; the evidence is yet to be recorded and the trial Court or the
prosecution can always lead additional evidence with a view to render complete assistance to the court.
3. We have considered the submissions made and find that the judgment to which reference has
been made by learned counsel for the petitioner was in a criminal appeal when the entire evidence had
been led and the court after considering the said evidence came to the conclusion as reflected in para 8 of
the said judgment which reads as follows:-
"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."
4. Admittedly the trial has yet to commence and it would be rather presumptuous on the part of the
petitioner to infer that the prosecution would lead evidence only to the extent of the weight to which
reference has been made by petitioner's learned counsel. It is always open for the parties and in this case
for the prosecution to lead further evidence and to request the court that it be allowed to send the entire
narcotics allegedly recovered from the petitioner for chemical analysis.
5. For what has been discussed above, we do not find any merit in this petition, which is dismissed
and leave refused.