IN THE SUPREME COURT OF PAKISTAN 
( Appellate Jurisdiction ) 
 
 
 
 
 
PRESENT: 
MR. JUSTICE ANWAR ZAHEER JAMALI, CJ  
MR. JUSTICE MIAN SAQIB NISAR  
MR. JUSTICE AMIR HANI MUSLIM  
MR. JUSTICE IQBAL HAMEEDUR RAHMAN  
MR. JUSTICE KHILJI ARIF HUSSAIN 
 
CRIMINAL APPEAL NOS. 12-P,13-P OF 2011 
(on appeal from the judgment of the Peshawar High 
Court, Peshawar dated 21.07.2010 passed in Criminal 
Appeals No.264 & 270 of 2009) 
 
 
 
AND 
CRIMINAL APPEAL NOS. 17-P & 18-P OF 2011 
(on appeal from the judgment of the Peshawar High 
Court, Peshawar dated 03.03.2011 passed in Criminal 
Appeals No. 390 & 415 of 2009) 
 
 
 
AND 
CRIMINAL APPEAL NOS. 7-P TO 9-P OF 2012 
(on appeal from the judgment of the Peshawar High 
Court, Peshawar dated 21.09.2011 passed in Criminal 
Appeals No. 186, 190 &244 of 2009) 
 
The State through Director ANF Peshawar  …Appellant 
 
VERSUS  
Rashmali Khan 
 
 
 
 
(in Cr.A 12-P/11) 
Islam & another   
 
 
 
(in Cr.A 13-P/11) 
Murad Khan  
 
 
 
 
(in Cr.A 17-P/11) 
Said Ahmed  
 
 
 
 
(in Cr.A 18-P/11) 
Sher Mohammad   
 
 
 
(in Cr.A 7-P/12) 
Ameerzeb & another  
 
 
 
(in Cr.A 8-P/12) 
Ahmedzeb   
 
 
 
 
(in Cr.A 9-P/12) 
…Respondents 
 
For the Appellants: 
 
  
(in all cases) 
 
Raja M. Inam Amin Minhas, Sp.Prosecutor ANF 
 
For the Respondents: 
 
(in Cr.As 12,13/11 & 9-P/12) 
 
 
 
 
N.R. 
 
(in Cr.As 7-P,8-P/12) 
Nemo. 
 
(in Cr.As 17,18-P/12)  Mr. Jaffar Raza Khan, ASC 
 
Date of Hearing:  
24.02.2016. 
JUDGMENT  
 
 
Anwar Zaheer Jamali, CJ.— These appeals, with leave of 
the Court, arise out of various judgments passed by the Peshawar High 
Cr.As.7P-9P,17P,18P/11 etc          -2- 
 
Court, Peshawar, in the cases where the respondents were charged, 
convicted and sentenced under the provisions of Section 9(c) of the 
Control of Narcotics Substance Act, 1997 (hereinafter referred to as 
“CNSA”). As the moot point is common in all cases, therefore, we 
propose to decide them with this single judgment.  
2. 
 
Before proceeding further to examine the crux of 
controversy involved, it will be appropriate to summarize the facts of 
these cases as under: 
3. 
 
Criminal Appeals No. 7-P to 9-P of 2012, arise out of 
common FIR No.16 dated 21.04.2007 registered under Section 9(c) of 
CNSA at Police Station ANF Kohat, wherein it was alleged that the 
respondents, who were four in number, were trafficking 68.2 Kg of 
Chars Garda to Karachi in a bus bearing No.PA-0085. The Trial Court, 
vide judgment dated 13.05.2009, convicted and sentenced each one of 
them with imprisonment for life along with a fine of Rs.50,000/- or in 
default whereof to undergo one year S.I. and benefit of Section 382-B 
Cr.P.C. was extended to them. The respondents assailed this judgment 
by filing separate appeals before the Peshawar High Court, Peshawar, 
whereby vide judgments dated 21.09.2011, their sentences were 
reduced to 10 years R.I. and the fine was reduced to Rs.25,000/- or in 
default whereof to suffer further six months S.I. The benefit of Section 
382-B Cr.P.C. was kept intact. The reasons for reduction in sentence 
assigned by the High Court were two fold; firstly, the quantity of Chars 
Garda, weighing 68.200 Kg in powder form could have been reduced in 
weight up to 30-40% and even upto 50% when processed. Therefore, 
the quantity to be considered in determining the quantum of sentence 
would be reduced to 40 Kg. Thus, all the respondents for the purpose of 
quantum of sentence were saved from the rigours of proviso to Section 
Cr.As.7P-9P,17P,18P/11 etc          -3- 
 
9(c) of CNSA, providing minimum punishment of life imprisonment in 
those cases where the total quantity recovered exceeds 10 Kilograms.  
4. 
 
Criminal Appeals No. 12-P and 13-P of 2011, arise out of 
FIR No.15 dated 20.04.2007 registered under Section 9(c) of CNSA at 
Police Station ANF Kohat, wherein it was alleged that the respondents, 
who were three in number, were carrying 12.5 Kg of Chars Garda in a 
bus bearing No.BK-3875. They were accordingly charged and tried by 
the CNS Court and vide judgment dated 09.06.2009, convicted and 
sentenced with imprisonment for life along with a fine of Rs.50,000/- 
each or in default whereof to undergo one year S.I. The benefit of 
Section 382-B Cr.P.C. was also extended to them. The respondents 
assailed this judgment by filing separate appeals before the Peshawar 
High Court, Peshawar, whereby vide judgment dated 21.07.2010, their 
sentences of life imprisonment were reduced to four years R.I. and fine 
was also reduced to Rs.25,000/- or in default whereof to undergo 
further six months S.I. The benefit of Section 382-B Cr.P.C. was kept 
intact. The reasons assigned by the High Court were two fold; firstly, 
the recovery of Chars Garda, weighing 12.5 Kg in powder form could 
have invariably been reduced in weight up to 30% when processed, 
therefore, the case of the appellants was outside the ambit of the 
provisions of Section 9(c) of the CNSA and further the total quantity was 
to be equally distributed among the number of convicts therefore each 
of them was liable for quantum of sentence befitting 1/3rd  quantity of 
processed Chars Garda.  
5. 
 
Lastly, Criminal Appeals No. 17-P and 18-P of 2011, arise 
out of FIR No.7 dated 25.07.2008 registered under Section 9(c) of CNSA 
at Police Station ANF Kohat, wherein it was alleged that the 
respondents, who were two in number along with co-accused lady, were 
found in possession of 24 packets of Chars Garda weighing 28.8 Kg and 
Cr.As.7P-9P,17P,18P/11 etc          -4- 
 
a packet of opium weighing 500 grams, which were concealed in CNG 
cylinder of a car bearing No.LEE-9846-07. They were accordingly 
charged, proceeded and the Trial Court, vide judgment dated 
04.08.2009, extending benefit of doubt acquitted the lady accused, 
Sultana, while convicted and sentenced each of the respondents with 
imprisonment for life along with a fine of Rs.50,000/- each or in default 
whereof to undergo one year S.I. and the benefit of Section 382-B 
Cr.P.C. was also extended to them. The respondents assailed this 
judgment by filing separate appeals before the Peshawar High Court, 
Peshawar, whereby vide judgment dated 03.03.2011, their sentence of 
imprisonment for life was reduced to 10 years R.I. and fine was also 
reduced to Rs.25,000/- each or in default whereof to undergo further 
six months S.I. The benefit of Section 382-B Cr.P.C. was kept intact. 
The reasons assigned by the Court were two fold; firstly, the quantity of 
Chars Garda in powder form, weighing 28.8 Kg recovered from the 
possession of two convicts was liable to be reduced in weight up to 30-
35% when processed. Thus, the quantity to be considered in 
determining the quantum of sentence would be reduced to 20 Kg, which 
was to be equally divided between the two accused for the purpose of 
determining their quantum of sentence.  
6. 
 
We have heard arguments of learned Special Prosecutor 
ANF on behalf of the appellants and Mr. Jaffar Raza Khan, ASC. The 
learned Special Prosecutor ANF argued that after the promulgation of 
CNSA, innumerable cases have been proceeded and decided up to the 
level of Apex Court, yet this novel procedure of reducing the quantity of 
Chars Garda from 30 to 50 % on the pretext of being reduced when 
processed has never been applied or followed as it is entirely alien to the 
provisions of CNSA; Section 9 whereof clearly contemplates quantum of 
sentences based on the recovered quantity of narcotic substance. 
Cr.As.7P-9P,17P,18P/11 etc          -5- 
 
Moreover, the approach of the Hon’ble Peshawar High Court regarding 
equal distribution of recovered quantity of Chars Garda among the 
number of convicts involved, also lacks any legal backing or moral 
justification. In this regard, the arbitrariness of impugned judgments is 
further exposed from the fact that they contain no useful discussion or 
sound reason on either of these two points.   
7. 
 
When learned ASC for the respondents was confronted with 
these legal questions, he was unable to offer any factual or legal 
foundation elucidating or defending the identical view taken by the 
Peshawar High Court in all these cases.  
8. 
 
It is pertinent to note that in these appeals, various 
judgments of the trial Courts which were impugned before the 
Peshawar High Court were maintained to the extent of conviction of 
respondents and remained unchallenged; therefore, we do not need to 
advert to this aspect of the matter but only to the quantum of sentences 
modified and awarded by the High Court through its impugned 
judgments. The learned ASC for the respondents also conceded to this 
position for the reason that against the impugned judgments of the 
Peshawar High Court, whereby respondents were convicted and 
sentences awarded to them by the trial Court were reduced, they did 
not prefer any appeal challenging their convictions, which thus attained 
finality. To this extent, facts in all these cases are quite similar and 
undisputed, therefore, in order to decide these cases, following points 
for determination are formulated:  
(a)   whether the trial Court or the appellate Court could 
proceed on the assumption that for determining the 
quantum of sentence, recovered quantity of Chars Garda 
is to be first processed and then its net quantity is to be 
made basis for this purpose? 
Cr.As.7P-9P,17P,18P/11 etc          -6- 
 
   
(b)  whether the quantum of sentence awarded to a convict 
under section 9(a), (b) or (c) of CNSA shall commensurate 
with the exact quantity of the recovered narcotic 
substance or the self invented formula for processing of 
Chars Garda, purportedly reducing its weight from 30 to 
50 %, is to be applied to extend its benefit to the convict, 
while determining his quantum of sentence, if so, on what 
legal basis?  
(c)  whether in a case involving several convicts, the total 
quantity of narcotic substance recovered from their 
possession is to be equally distributed between them to 
determine the quantum of their sentence, if so, then on 
what legal principle or analogy?   
 
9. 
 
As discussed in the earlier part of the judgment, in the 
instant proceedings sentences awarded to all the respondents have 
been saved from the rigours of proviso to section 9 (c) of CNSA by 
following the principle of (presumed) reduction in the quantity of 
recovered Chars Garda, when processed, though in none of these cases 
Chars Garda was processed or even asked for or directed to be 
processed, and further by adopting the formula of equal/even 
distribution of such remaining quantity amongst all the convicts 
followed by the Peshawar High Court. In two appeals, showing recovery 
of 68.2 Kg and 28.8 Kg and number of convicts as four and two 
respectively, the sentences of convict respondents have been reduced to 
10 years R.I. with fine of Rs. 25,000/-, while in the third appeal, 
showing recovered quantity as 12.5 Kg with three convicts, it has been 
reduced to 4 years R.I. with fine of Rs. 25,000/-.  
Cr.As.7P-9P,17P,18P/11 etc          -7- 
 
10 
 
Before proceeding further, at this stage, it will be useful to 
reproduce section 9 of CNSA which reads thus:  
“Section 9. Punishment for contravention of 
sections 6,7 and 8. Whosoever contravenes the 
provisions of Sections 6,7 and 8 shall be punishable 
with— 
 
(a) Imprisonment which may extend to two 
years, or with fine, or with both, if the 
quantity of the narcotic drug, psychotropic 
substance or controlled substance is one 
hundred grams or less; 
 
(b) Imprisonment which may extend to seven 
years and shall also be liable to fine, if the 
quantity of the narcotic drug, psychotropic 
substance or controlled substance exceeds 
one hundred grams but does not exceed one 
kilogram; 
 
(c) Death 
or 
imprisonment 
for 
life 
or 
imprisonment for a term which may extend to 
fourteen years and shall also be liable to pay 
fine which may be upto one million rupees, if 
the quantity of the narcotic drug, psychotropic 
substance or controlled substance exceeds 
the limits specified in clause (b). 
 
Provided that if the quantity exceeds ten 
kilograms the punishment shall not be less than 
imprisonment for life.” 
 
11. 
 
A bare reading of the above reproduced provision of law 
reveals that a person convicted under Section 9 CNSA, for the purposes 
of sentencing, is to be placed in three categories depending upon the 
quantity of narcotic substance recovered. Section 9 (a) specifies the 
quantum of sentence if the quantity recovered is 100 gm or less; section 
9 (b) provides quantum of sentence for cases where the quantity 
recovered is more than 100 gm but less than 1 kg; and section 9 (c) 
specifies the quantum of sentence for any quantity exceeding 1 kg. 
Additionally, the proviso to section 9 (c) provides for the quantum of 
minimum sentence in those cases where the quantity of narcotic 
substance recovered exceeds 10 kg. Thus, it is evident that nowhere in 
Cr.As.7P-9P,17P,18P/11 etc          -8- 
 
the entire scheme of CNSA, the Courts have been empowered to either 
send the recovered quantity of Chars Garda for processing or arbitrarily 
reduce its quantity without any supporting material in this behalf or 
any intelligible criteria or legal justification for this purpose, as has 
been done by the Peshawar High Court in all the impugned judgments. 
Such view of the matter is, therefore, disapproved and rejected as being 
conjectural and unlawful. In this context it will be pertinent to mention 
here that the exercise to be undertaken by the Investigating Officer for 
the purpose of obtaining test report regarding narcotic drug, 
psychotropic substance and controlled substance from the chemical 
examiner as visualized under Section 36 of the CNSA read with Control 
of Narcotic Substances (Government Analyst) Rules, 2001 has no nexus 
to the above discussed theory of processing of Chars Garda advanced 
by the High Court. 
12. 
 
Similarly, the provisions of CNSA do not permit the practice 
of equal distribution of total quantity of narcotic substance recovered 
from the possession of more than one convict in order to determine 
their individual sentences within the parameters of Section 9 of CNSA. 
The conclusion contrary to it recorded in the impugned judgments has 
also no legal sanctity; therefore, it could not be endorsed or approved. 
To put it in simple words, if in a case narcotic substance is recovered 
from the possession of more than one convict then, following the 
principle of their joint and collective liability, each one of them will be 
liable for punishment on the basis of the whole quantity of narcotic 
substance so recovered. To elucidate and fortify this view, reference may 
be made with advantage to Sections 34,35,149,394,396,460 etc of the 
Pakistan Penal Code, which is the general law applicable to criminal 
cases, as unless expressly declared inapplicable the principles of 
general law are deemed to be applicable to a special law. 
Cr.As.7P-9P,17P,18P/11 etc          -9- 
 
13. 
 
In the case of Ameer Zeb v. The State ( PLD. 2012 SC 380 ) 
passed by a larger Bench of five Hon’ble Judges of this Court, the 
question of quantity of recovered narcotic substance for the purpose of 
sentencing has been discussed as under: 
“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 are 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.” 
 
 
The above conclusion thus, aptly encapsulates this aspect of the matter.  
14.   
Admittedly, in these cases, at no stage of the proceedings, 
either before the Trial Court or the Appellate Court, the actual quantity 
of Chars Garda recovered from the possession of respondents was 
disputed; neither any plea that Chars Garda when processed would be 
reduced in quantity was raised by the respondents nor any such 
exercise was ever undertaken or warranted by law. The definition 
Clauses provided under Section 2 of CNSA covers different categories of 
narcotic drugs and psychotropic substance in detail, which leave no 
further room for any speculation about their net quantity. Additionally, 
Section 3 of the CNSA only confines the question of calculation of 
percentage of narcotic substance to liquid preparations. Thus, these 
admitted facts, evident from the case record, and the legal position, are 
sufficient to show that the exercise of jurisdiction of Peshawar High 
Court in this context was entirely capricious, fanciful and contrary to 
the case record.  
15. 
 
As 
a 
sequel 
of 
above 
discussion, 
the 
points 
for 
determination formulated in the earlier part of this judgment are 
Cr.As.7P-9P,17P,18P/11 etc          -10- 
 
answered as (a) Negative; (b) Exact quantity of the recovered narcotic 
substance; and (c) Negative.  
16. 
 
Foregoing are the reasons for our short order passed in 
these appeals on 24.2.2016.  
 
    Chief Justice 
 
Judge  
 
 
Judge 
 
 
Judge  
 
 
Judge 
ISLAMABAD. 
24th February, 2016. 
Mudassar/ 


“Approved for reporting.”