1. ' MEHTA KAILASH NATH KOHLI, J.---This appeal is directed against judgment dated 10th September, 2002, passed by Special Judge (Narcotics), Pishin, in Narcotics Case No.4 of 2002, whereby; appellant Abdul Qadoos son of Muhammad Bashir, caste Ansari, was found guilty for commission of offence under section 9(c) of Control of Narcotic Substances, Act, 1997, and was convicted and sentenced to suffer imprisonment, for life, with fine of Rs. One million, in default of payment of tine to further suffer, four years R.I. Benefit of section-382(b), Cr.P.C. Was extended to appellant from 16th February, 2002.
2. ' Facts of the case, are that complainant Captain Tanveer Iqbal, Pishin Scouts Chaman, lodged a written report addressed to Assistant Commissioner, Chaman, alleging therein that on 16th February, 2002, at 11-00 a.m., at Cheena cut, their patrolling party saw a vehicle (Pajero), bearing Registration No.BA-4649, Engine No. 4D56BL-0861, Chasis No.CL049WKJ40041, going towards Quetta; on suspicion, patrolling party stopped the said vehicle, and the vehicle was brought at Wing Headquarter, Sheila Bagh. During checking, three hundred kilograms 'Hasheesh', was recovered from said vehicle, which was concealed in secret cavities, and; the said 'Hasheesh' was being taken to Abdul Qadoos son of Muhammad Sher resident of House No.3-2/44, Natha Singh/Mitha Mal Street, Quetta. It was further alleged that said recovered `Hasheesh' and Vehicle No.BA-4649 along with registration papers, were seized under Narcotics Act, and were saved in 56 Wing Headquarter, and; the same will be produced before concerned Customs Court. During search of accused, a pair of cloth and cash amounting to Rs.7,510 were recorded. Consequent upon above report, F.I.R. No.29 of 2002, dated 20th February, 2002 under section 9(c) of Control of Narcotic Substances Act, 1997 was registered at Levies Station, Chaman, District Qilla Abdullah.
3. ' Appellant/convict was challaned before the Court of Special Judge (Narcotics), Pishin. Charge was framed and read over to the appellant, to which he pleaded not guilty and claimed trial.
4. ' To substantiate accusation against accused, prosecution produced following evidence:- ' P.W-1 Captain Tanveer Iqbal, Pishin Scouts.
5. ' He deposed that on 16th February, 2002, he received information from FC Check-Post Garang that a blue colour vehicle, without stopping, has passed the chain; on receipt of information, he proceeded towards Chaman, at Cheena cut, vehicle was seen by him; the said vehicle was stopped and brought to Sheila Bagh, Check-Post; on initial checking, twenty nine packets Charas was recovered on further suspicion, vehicle and accused present in Court were taken to Wing Headquarter, where on thorough search, three hundred packets of Charas in total weighing 300 kilograms, were recovered. After recovery, he took accused to Tehsil Headquarter Chaman, and after preparation of report, accused was handed over to Tehsildar. He produced report (Exh.P/1-A), which bears his signature. Pajero bearing No.BA-4649, Karachi, was produced as Article-P/1. He produced three hundred packets of Charas as Article-P/2. He further deposed that they sent Charas to FSL Expert, for analysis, from where report was obtained by Headquarter Pishin Scouts, which was handed over to him. Witness produced Murasla 56 Wing as Exh.P/1-B and. Also produced Expert's report as Exh.P/1-C. (Defence counsel raised objection that above said documents could only be produced through Investigating Officer, secondly that he had not received copy of said certificate.
6. Objection of defence counsel was kept reserved till final decision, while copy of Expert's report was provided to counsel in the Court). Witness identified accused Abdul Qadoos, present in Court.
7. ' In cross-examination, he stated that since 14th September, 2001, he was posted at Headquarter.
8. Pishin Scouts, Chaman. He received information from Naib-Subedar Garang, while on messaging on wireless, they do not disclose their names. He admitted that he is not Commanding Officer of Garang Check-Post, while Shella Bagh and Garang Check-Post are supervised by one Commanding Officer. He stated that their Commandant sits in Chaman Headquarter. He showed his ignorance about exact strength of force posted at Garang Check-Post, at that time. He stated that there is regular chain at Garang Check-Post. Garang Check-Post is situated at a distance of about fifteen kilometers from Sheila Bagh; Garang Check-Post is located at Kozhak top towards Chaman. He stated that he had seized vehicle about ten kilometers towards Shella Bagh Check- Post; said vehicle was not being chased by Authorities of Garang Check-Post. He denied that the area where he stopped said vehicle, was not in his command. He did not stop at Cheena cut. He stated that they remained at Shella Bagh for about one hour. It was stated that their Wing Headquarter is situated at a distance of one kilometer from Shella Bagh. He stated that at Wing Headquarter, it took about one hour, in conducting search. He kept accused with him till 4-00/5-00 p.m. And took accused along with his report to Levies Station, Chaman. Witness stated that the sacks, in which Charas was kept, were obtained from Wing Headquarter. He stated that he had not sealed/stamped those sacks. He stated that he had not handed over recovered Charas and vehicle to Levies. He did not remember exact time; voluntarily stated that before 4-00/5-00 p.m. He prepared report. He admitted that in his report,. He had not disclosed about colour of vehicle. He admitted that in his report, he had not disclosed about receipt of information from Garang Check- Post. He admitted that in the report, he had not mentioned that on receipt of information, he started proceeding towards Chaman. He admitted that in repcft, .There was no such mention that he had seen the said vehicle, coming at Cheena cut. (Comparison was made, entry was made that said vehicle was going at Cheena cut towards Quetta). He stated in the Court that said vehicle was stopped and brought to Sheila Bagh Check-Post (compared, it was mentioned in the report that patrolling party stopped that vehicle and brought to Wing Headquarter Shella Bagh); voluntarily stated that he was also present in patrolling party. He admitted that Sheila Bagh Check- Post and Wing Headquarter, are two different places. He stated that he had not disclosed in report that on initial checking at Sheila Bagh, twenty nine packets of Charas were recovered. He denied that the case property, which he produced before the Court, was not Charas. On 5th March, 2002, Charas was received by Chemical Expert. On 21st April, 2002, he received report of FSL, through his Headquarter. He showed 'ignorance that which person of FC Headquarter, took Charas for analysis; voluntarily stated that from Pishin Scouts Headquarter, recovered Charas was sent for analysis. He denied that Exh.P/1-C was as wrong certificate. He admitted that in his presence, Syed Abdullah had not signed the said certificate. He denied that on 12th February, 2002, when accused present in Court, was arrested by Shella Bagh Check- Post, at that time, he was in possession of foreign house hold articles. Witness denied that on 12th February, 2002, his staff demanded bribe worth Rs.50,000 upon which there was quarrel between accused and his staff. He denied that when he reached Sheila Bagh Check-Post, he took accused to Wing Headquarter. He denied that there, he detained accused for four days. He showed his ignorance, whether against them, accused had submitted any application to the high officials; voluntarily stated that it is incorrect that they had committed any illegal act with accused. He denied that to show good performance in the department, accused was falsely involved in the case. He denied that the case property, which he had produced before the Court, the same was changed. He denied that they had illegally kept case property, with them. He denied that he had given wrong statement.
9. ' P.W.2 Ehsanullah, Naib Subedar, Shelia Bagh Check-Post Chaman. He deposed that on 16th February, 2002 at 11-30 a.m. From Garang Check-Post, information for holding said vehicle, was received, upon which, he along with Captain Tanveer Iqbal and other FC personnel, proceeded towards Chaman, for said vehicle and at Cheena cut, they saw said vehicle which was coming towards Quetta, vehicle was being driven by accused present in Court, which was taken to Sheila Bagh Check-Post and when vehicle was searched, 29 packets of Charas were recovered from both the front doors; after one hour, accused and vehicle were taken to Wing Headquarter and there, search of whole vehicle was conducted, in result whereof; three packets of Charas, weighing 300 kilograms, were recovered. Captain Tanveer Iqbal wrote a Murasla, on which he also signed as witness. He identified murasla (Exh.P/1-A), which bears his signature, he also identified vehicle (Article-P/1) and 300 kilograms Charas (Article-P/2), to be the same. He identified accused present in the Court, from whose possession, 300 kilograms Charas was recovered.
10. ' In cross-examination, he stated that since 1-1/2 year, he is performing his duty at Sheila Bagh Check-Post and never remained posted at Garang Check-Post Commander Garang Check-Post, NaibSubedar Allah Bakhsh informed them on wireless, which was received by Caption Tanveer Iqbal, soon after receipt of this information, they proceeded. It was further stated that their strength was five and at the Check-Post, twenty-five persons, perform duty. Witness stated that Cheena cut is situated at a distance of about six/eight kilometers from their Check-Post. On 21st February, 2002, Tehsildar had recorded his statement, wherein he disclosed that during search at Shelia Bagh Check-Post, twenty nine packets of Charas were recorded from both front doors (compared, but not found so). He stated that he singed report (Exh.P/1-A), after its perusal. He denied that whatever he stated in Court, was not mentioned in Exh.P/1-A. He stated that Tehsildar recorded his statement at Sheila Bagh Check-Post. He stated that in his statement under section 161, Cr.P.C., he had stated that after one hour, vehicle and accused were taken to Wing Headquarter, where on thorough search, 300 kilograms Charas was recovered. (Compared, there was no such mentioned in the statement regarding taking of vehicle and accused to the Wing Headquarter). He denied that in his presence, each packet of Charas was not weighed. He stated that he is not qualified trainee of analysis; voluntarily stated that usually, after seizing Charas, they can easily identify Charas. He denied that Charas from each packet was not shown to him, when Charas was seized, the same was sealed with polythene and it was denied that thereafter packets of Charas, were remained sealed. He admitted that the sacks were not sealed, in which, material was kept and denied that sealed material was not the same. He denied that on 16th February, 2002, neither Tanveer Iqbal was present at Check-Post, not they had received any information regarding arrival of any vehicle. He denied that neither they went to Cheena cut, nor brought the accused along with his vehicle. He denied that at Shella Bagh Check-Post, 29 packets of Charas, had not been recovered from the vehicle, nor on thorough search at Wing Headquarter, any Charas was recovered. He denied that on 12th February, 2002, accused was arrested when he was having household articles, in his vehicle. He denied that they demanded Rs.50,000 from accused: He denied that on 12th February, 2002, one Syed Shehzad Hussain was also boarded with accused in the said vehicle. He denied that accused was subjected to torture by them and then Captain Tanveer Iqbal, took him to Wing Headquarter. He denied that in night, companion of accused was released. He denied that they kept accused in custody for four days and thereafter, handed over to Tehsildar. He denied that he deposed against accused, for the reasons that accused submitted application to high officials, against their illegal act. He denied that they registered a false case of Charas against accused. He denied that he has made wrong statement.
11. ' P.W-3 Nazar Hussain, Tehsildar, Chaman. He appeared and deposed that on 20th February, 2002 on the report of Captain Tanveer Iqbal, F.I.R. No.29/2002 (Exh.P/3-A), was registered against accused present in Court. He identified his signature on F.I.R. Thereafter, proceeded to place of occurrence i.e. Kozhak mountain and prepared site-plan (Exh.P/3-B), he produced the same, bearing, his signature. Witness further deposed that he had recorded statements of prosecution witnesses i.e. Ehsanullah and Captain Tanveer Iqbal, thereafter F.0 had handed over custody of accused to him. It was further deposed that after completion of investigation, witness prepared challan (Exh.P/3-C), which bears his signature. Witness identified accused present in the Court.
12. ' In cross-examination, he stated that in Column No.5 of F.I.R. Mentioning of high officials names that after consultation with D.C.O. And Colonel Sarwar, he had registered F.I.R. He stated that he had proceeded to place of occurrence on 20th February, 2002. It was stated that with regard to point "2(C)" (Exh.P/3-B), FC officials had informed him; voluntarily stated that he did not know name of concerned official. Witness stated that on 21st February, 2002, at Shella Bagh, statements of witnesses Ehsanullah and Tanveer Iqbal, were recorded by him. He further stated that witness Ehsanullah did not tell him that during checking at Shella Bagh Check-Post, 29 packets of Charas were recovered from front doors of vehicle, it was further stated that witness Ehsanullah had not stated him that after one hour accused and vehicles were shifted to Wing Headquarter and there on thorough search, 300 kilograms Charas, was recovered. He admitted that case property was not handed over to him. It was further stated except F.I.R. Recovery memo. Or anything was not handed over to him. He denied that he had submitted wrong challan against accused.
13. ' In his statement, recorded under section 342, Cr.P.C. Appellant/convict pleaded his innocence, he had also recorded his statement on oath under section 340(2), Cr.P.C. And; deposed that in Quetta, he used to work as property and car dealer. On 11th February, 2002, in connection with marriage of his sister, in his private vehicle (Pajero-jeep) bearing No.BA-4649, he went to Chaman, for buying house-hold articles, witness Shahzad Hussain had also accompanied him; on the following day i.e. 12th February, 2002, after buying household articles, he along with Shahzad departed for Quetta in his vehicle. Accused further deposed that when they reached Garang Check-Post, after search, they were allowed to go, thereafter; when they reached Shelia Bagh Check-Post, during search, FC personnel got down upon, his house-hold articles, upon there was some quarrel, after that; Captain Tanveer Iqbal, took him and his companion along with vehicle to Sheila Bagh, FC Headquarter, where FC personnel demanded Rs.50,000 and then Rs.30,000 while he had no money.
14. It was deposed that FC personnel left his companion Shehzad for bringing money, upon which; his brother came to Shelia Bagh Headquarter and requested FC Authorities, for his release, but; FC Authorities after four days, without any reason, handed him over to Levies Chaman, where he was further remained in detention for four days, and; thereafter, he was produced before Judicial Magistrate. The Magistrate did not ask anything from him and signed documents and again, his custody was given to Levies. Accused deposed that Levies authorities had tortured him and without his production, further remand was obtained, and; thereafter he was shifted to Pishin Jail. Accused further deposed that he submitted application to along with witness Shehzad had not gone to Chaman for buying dowry articles of his sister's marriage. He denied that on 12th February, 2002, he had not returned to Quetta with Shehzad nor FC Authorities got down his household articles. He denied that neither he quarrelled with FC Authorities nor they demanded money from him. He denied that FC Authorities had never kept Shehzad with him and he was released for bringing money. He denied that FC Authorities after detaining him for four days, withoUt any reason, had not handed over his custody to Levies. He denied that he had not submitted any application to Inspector-General, FC. He denied that FC Authorities had never pressurized his brother and witness Shehzad. He denied that he deals in business of Charas. He also denied that on the day of occurrence, he in his vehicle, was transporting recovered Charas to Quetta. He denied that he made wrong statement.
15. ' Appellant in defence, produced following evidence:- ' D.W-1 Shehzad son of Syed Shaukat Hussain appeared and deposed that on 11th February, 2002, accused (Abdul Qadoos) present in Court came to him asked to accompany him to. Chaman and told that from Chaman, he had to buy goods for marriage of his brother and sister, on the same day, he along with accused went to Chaman, where they met with two friends of accused with whom they went to Afghan border, from where, accused bought goods and on return to Chaman, they went to the house of accused's friend namely Haji. Witness deposed that after taking lunch, in accused's vehicle (Pajero), they departed for Quetta. On 12th February, 2002, when they reached Shella Bagh Check-Post, FC Authorities stopped the vehicle, thereafter, FC Authorities took accused aside and after some time he quarrelled with FC Authorities, then they were taken to FC fort.
16. Witness deposed that he was made sit outside for two hours, while accused present in Court was inside the FC fort; after two hours, one FC person enquired him about cash amount, which on checking was six/seven thousand rupees, then; he told him that accused present in Court has stated him to bring Rs.50,000 from Quetta; on the same day witness reached Quetta and told accused's brother to arrange money, thereafter, witness went to his house. It was further deposed that after ten/fifteen days, brother of accused met him and told that FC Authorities had made a case against accused; accused's further told that FC Authorities were also searching him. Witness deposed that no Charas was recovered from accused and he has been falsely involved in the case.
17. ' In cross-examination, witness stated that he did not remember number of the vehicle. He stated that he does not know names of those two friends of accused, who met him in Chaman. Prior to that, once or twice he along with accused present in Court, had gone to Chaman. He showed ignorance that before Shella Bagh Check-Post, FC Check-Post Garang is also located; voluntarily stated that there were several check-Posts in the way. He denied that when authorities of Garang Check-Post signaled them to stop, they broke the chain and escaped. He denied that Authorities of Garang Check-Post informed Sheila Bagh FC Authorities about their escape, upon which, FC Authorities in the way overpowered accused along with vehicle and had taken to Sheila Bagh Check-Post. He denied that during checking at Sheila Bagh Check-Post and Sheila Bagh FC fort, 300 kilograms of Charas was recovered from the vehicle of accused. He stated that he could not tell name of FC person, who had quarrelled with accused; voluntarily stated that on seeing he could identify him, who was a Captain. He admitted that he had not submitted application to high officials, with regard to accused or against FC Authorities. According to witness, prior to occurrence, FC Authorities had enmity with accused. He admitted that after arrest of accused, he had not gone to Sheila Bagh Check-Post or Levies Station, Chaman for meeting accused; voluntarily stated that in Pishin Jail, he met accused once or twice. He admitted that prior to occurrence, he or accused had not quarrelled with FC Authorities. He denied that on 11th February, 2002, neither he along with accused went to Chaman nor in connection of marriages of his brother and sister, accused bought goods. He denied that on 12the February, 2002, he along with accused in his vehicle, had not proceeded from Chaman to Quetta. He denied that when FC Authorities arrested accused, he was not present there. He denied that FC Authorities had not told him to bring money. He denied that he had not told brother of accused for arrangement of Rs.50,000. He denied that Charas was recovered from accused, on account of which, present case was made against him. He denied that accused was not falsely involved in the case. He admitted that after the incident, neither he met with FC Authorities, nor they met with him; voluntarily stated that while he was at Karachi, for his enquiry, FC Authorities, nor came to his maternal uncle's house at Fatima Jinnah Road. He stated that he has six/seven year's friendship with accused. He denied that due to friendship, he made statement in favour of accused. He denied that he had made false statement.
18. ' D.W-2 Muhammad Yaqoob son of Muhammad Bashir deposed that his brother (accused present in Court) is a car dealer in Karachi. On 11th February, 2002, accused along with witness Shehzad in his vehicle went to Chaman for buying goods of marriage for witness and his sister, and; on 12th February, 2002, at 10-30 p.m. Shehzad came to their house and told him that FC Authorities had arrested Abdul Qadoos (accused); he told him to arrange money and to deliver there; on the following day, he arranged Rs.13,000 and went to Sheila Bagh Headquarter, where he met one Subedar, who arranged short meeting of accused with him. Witness further deposed that his brother told him that FC Authorities had unloaded marriage articles and were demanding money; he met with Captain, but the amount he had, was refused as insufficient, and; told that they will involve accused in a case under Customs Act, therefore; witness went to Quetta and submitted and application to Inspector-General, FC against Authorities of FC; voluntarily stated that no legal action was taken on the same, but; FC Authorities had harassed him and once they had taken him from his shop to a camp situated at Chaman road and after threats, he was released. Witness deposed that FC Authorities enquired him about witness Shehzad. It was further deposed that he again submitted application to high officials of FC, regarding attitude of FC Authorities, but without any fruitful result. Witness produced photocopy of application (Exh.D/2-A), which bears his signature. Witness deposed that his brother has been falsely involved in the case.
19. ' In cross-examination, witness showed his ignorance about duration of friendship between his brother and Shehzad; voluntarily stated that usually he had not seen him with his brother. He stated that before two years, he had resided with his brother and now except accused, he along with his other brothers, is separately residing. He stated that the person namely Haji, who is resident of Chaman, is friend of his brother Abdul Qadoos, while he did not know about other friends. He admitted that he had not given any application, in any Court regarding false involvement of his brother. He denied that on the day of incident, his brother was bringing Charas, in his vehicle. He denied that when at Sheila Bagh Check-Post and FC fort, vehicle of his brother was searched and 300 kilograms Charas, was recovered. He denied that when Charas was recovered from his brother, they used uneven sources, which FC refused. He denied that on 11th February, 2002, his brother had not gone to Chaman for buying marriage articles etc. He denied that neither Shehzad along with his brother went to Chaman, nor on his return, he had informed witness about arrest of his brother and arrangement of money. He denied that on 13th February, 2002, he had not gone to Sheila Bagh Headquarter nor met with any Subedar. He denied that neither he met with his brother nor he discussed about unloading of marriage articles and demanding of money. He denied that he had not given any application to Inspector-General, FC. He denied that FC Authorities had never threatened him. He denied.That neither FC personnel came to his shop nor he was taken to any FC Camp. He denied that neither he was released after threats by FC Authorities nor enquired about witness Shehzad. He denied that Exh.D/2-A, is a self-contained and forged document. He denied that he had not given any application in the Court, because accused was involved in case of Charas. He admitted that he had not produced any evidence in Court that his brother really went to Chaman for buying his marriage articles. He admitted that prior to incident, FC Authorities and his brother or they had no enmity. He denied that his brother alone was coming from Chaman and witness Shehzad was not accompanying him. He denied that he gave false statement. He denied that his brother deals in business of Charas. He denied that on the day of occurrence, his brother brought Charas from Chaman to Quetta. He denied that he has made wrong statement.
20. ' After appraisal of evidence, adduced by respective parties, learned Special Judge (Narcotics), Pishin, vide judgment dated 10th September, 2002, convicted and sentenced the appellant, in the manner hereinabove mentioned.
21. ' We have heard Mr. Amanullah Kanrani, learned counsel appearing for appellant, while Mr. Amin- ud-Din Bazai, learned Additional Advocate-General represented the State.
22. ' It has been contended by learned counsel for the appellant that the prosecution has failed to establish the guilt against the accused on the ground that the alleged recovery was effected on 16-2-2002, while the case was registered on 20-2-2002. The prosecution has failed to point out as to where and in whose custody the alleged articles were placed during 16th February to 20th February, 2002. It was further canvassed that there is no evidence to connect the samples which were drawn and sent for analysis and also articles were not sent in entirety for examination and report by the Chemical Expert. It was the case of appellant that in view of the judgment reported in PLD 2004 SC 856, since the identity of the alleged narcotics was challenged, it was incumbent upon the investigating agency to have obtained samples from each of the packet and sent to Chemical Expert for analysis, which has not been done. Consequently the prosecution has failed to establish the alleged articles to be narcotics i.e. Charas it was further stated that after entrustment of the case to Tehsildar Chaman, FC Authorities had no right or authority to send one sample for examination to the Chemical Expert.
23. ' On the contrary learned Additional Advocate-General has supported the judgment, contending that the recovery was made from the alleged vehicle and said article is statedly recovered from the possession of the appellant and was liable for conviction.
24. ' In order to deal with the contentions of the parties, it has to be examined that P.W-2 stated that on 16-2-2002 he caught hold of the accused and had handed over the accused to Tehsildar, Chaman.
25. He has produced report, which is Exh.P/1-A undated. However, Tehsildar has produced copy of F.I.R No.29/2002 registered at Levies Thana Chaman, District Killa Abdullah on 20-2-2002 at 2-00 p.m.
26. Record further shows that P.W-1 received the analysis report (Exh.P/1-B) on 20-4-2002. In the examination-in-chief the P.W-1 stated to have sent sample for examination to FSL but in the cross-examination it has been stated by the said witness that the sample was sent by Pishin Scouts. There is no evidence on record to show whether:--
(i) samples were drawn from the alleged recovered article;
(ii) whether the sample was sealed and who sealed the same;
(iii) when samples were obtained;
(iv) before whom the samples were drawn and in whose custody sample meant for analysis remained during 16-2-2002 to 5-3-2002;
(v) whether samples were obtained for analysis from each packet of recovered article. Veracity, admissibility and sending of the article by Pishin Scouts has been questioned. In order to appreciate the respective contentions, relevant section is to be examined. Provisions of Criminal Procedure Code have been made applicable by virtue of section 47 of Control of Narcotic Substances Act, 1997. The relevant provision of section 510, Cr.P.C. Is re-produced as under:- "Report of Chemical Examiner, Serologist, etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, Finger-print Expert or Fire-arm Expert appointed by Government, (or of the Chief Chemist of the Pakistan Security Printing Corporation Limited), upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceedings under this Code: ' Provided that the Court may, if it considers necessary in the .Interest of justice summon and examine the person by whom such report has been made."
27. The above provision of the law clearly contemplate that any' report issued by any of Expert appointed by the Government upon any matter or thing duly B submitted to him for examination or analysis may be (without calling him as witness) be used as evidence. The word "Duly Submitted" requires interpretation. In the case in hand, samples were submitted by Pishin Scouts. None has appeared in witness-box to show that samples were obtained by him and sent to FSL. Only Creport (Exh.P/1 -B) indicates that the samples were sent by Pishin Scouts. The investigation of the case was entrusted vide F.I.R dated 20-2-2002 to Tehsildar, Chaman. The proper procedure was that Pishin Scouts should have submitted the documents along with alleged recovered articles to the Investigating Officer, who should have drawn the samples and sent to the Chemical Expert. The sending of samples for analysis to the Chemical Expert appears to be not in accordance with law, as by that time the officials of Pishin Scouts had become a complainant in the case and, thus the said sample was not duly submitted for analysis before Public Analyst/Chemical Expert in accordance with the provisions of section 510, Cr.P.C. In order to establish identity of the article sent for chemical analysis, it has .To be established on record that it was lawfully taken into possession and at the time of submission of samples he was lawful custodian of the same. The prosecution has failed to substantiate as to from 16-2-2002 to 5-3-2002, who 'was the custodian of the said samples. The word `duly' has been interpreted in AIR 1965 Orissa 38. Relevant portion of the judgment is reproduced as under:-- "The word "duly" appearing in section 510 of Cr.P.C. Means "properly". This word only emphasises the fact that proof of identity of the article sent to the Chemical Examiner with articles examined by him must be established."
28. ' Molla in commentary of Cr.P.C. 12th Edition page 1990 has also expressed as under:-- "A Sessions Judge is bound to warn the jury that before using the Chemical Examiner's report, they must be satisfied on the evidence that the substances examined were in fact what they were said to be--- Ofel Molla 18 C.W.N.
29. 180."
30. ' There is no evidence that samples from each of the packet were sent to the Chemical Expert/Public Analyst, P.W-1 has only stated that he had sent narcotics for chemical analysis.
31. However, he has failed to show that, who had sent the said samples for the purpose of examination. In cross-examination he has stated that Pishin Scouts had sent the said articles for examination. P.W-2 Naib-Subedar had produced article Charas as Art. P/1. There is no mention as to who sent the articles for examination by the Public Analyst/Chemical Examiner. The article produced shows that it was 300 K.G. As originally alleged to have been recovered. If a portion or sample was drawn, the weighment of article was required be obviously lesser in weight. The record is silent as to which of the P.W. Ha produced samples and from whom it was procured. There is no Fard on record for taking into possession the samples with regard to sending it to the Chemical Expert. The Expert report says that the sample was received from Pishin Scouts, which was 51 grams in a semi-solid form. There is no evidence that how does Pishin Scouts had procured samples for sending the same to Chemical Expert. The identity of the alleged narcotics statedly recovered has also been challenged by the appellant during the course of evidence and has cross-examined the witnesses that it is not a Charas. The Honorable apex Court in case of Muhammad Hashim v. State reported in PLD 2004 SC-856 has held in the following terms:-- "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 out from each rod to ascertain that 288 rods were of Charas of 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 charges against the accused within any component of section 9 if 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.
32. ' Thus for the forgoing reasons, appeal is accepted, conviction and sentence awarded to appellant is set aside and he is directed to be set at liberty forthwith, if not required in any other case."
33. ' There is nothing on record that samples were drawn from all packets or packet in question, as articles produced before the Court.
34. In view of the reasons stated above, we are of the considered opinion that prosecution has failed to establish guilt against the appellant beyond reasonable doubt. Consequently impugned judgment dated 10-9-2002 passed by Special Judge (Narcotics), Pishin is directed to be set aside and appellant is acquitted of the charge. He be set at liberty, if not required in any other case.