' HASNAT AHMAD KHAN, J.--- Nasir Khan, the appellant, by submitting this 'appeal has challenged the validity and legality of the order dated 19-5-2008 passed by Special Court Control of Narcotic Substances Act, Lahore, whereby the application filed by the petitioner (herein) for the determination of the percentage of opium alkaloids from the material allegedly recovered from the appellant, was dismissed.
2. Briefly stating the facts, as unfolded in the F.I.R. No, 99/2000 dated 12-12-2006, are that on a tip off a raid was conducted by a police party headed by Farooq Ahmad, Inspector, Police Station A.N.F.
Lahore. During the said raid the appellant, who was driving Motorcar No, LWO 7190 was intercepted by the said raiding party, consequently, 3000 unlabelled intoxicating injections were allegedly recovered from his car. The appellant according to the prosecutor led to the recovery of 5662 similar injections from his house, located at Ideal Homes, a residential colony near Suk Nehr within the limits of Police Station A.N.F. Lahore. The Investigating Officer sent the samples obtained from the recovered material to the chemical examiner for necessary analysis. The chemical examiner after due process of examination furnished his report with the following opinion about the recovered material: "Opium alkaloids are detected in the said articles.''
'Since no percentage of the detected opium, a component of the recovered injections, was given by the said expert, the appellant filed aforementioned applications, which was dismissed vide the impugned order dated 19-5-2008. Hence this appeal.
3. In support of this appeal learned counsel for the appellant has contended that the application under section 3 of the Control of Narcotic Substances Act, 1997, filed by the appellant, was dismissed by the learned trial Court, illegally that the report B submitted by the chemical examiner besides being vague and ambiguous, is against the provisions of section 3 of the C.N.S.A., 1997 and that the said chemical examiner failed to determine the percentage of the opium alkaloids, which was allegedly a component of the recovered injections. In order to augment his contentions the learned counsel has placed reliance on an B unreported order dated 7-4-2008 passed by a learned Division Bench of this Court on Crl. Misc No, 8116-B/2007.
4. Conversely, learned Legal Advisor of A.N.F. Has opposed this appeal tooth and nail by submitting that the recovered material was not subject to the calculation of percentage, that the report of chemical examiner is neither vague nor ambiguous as it has stated in clear cut terms that the opium alkaloids were detected in the recovered injections. In order to shore up his arguments the learned Legal Advisor has placed reliance on the cases of Muhammad Saeed v. The State 2007 PCr.LJ 156 and The State v. Amjad Ali (PLD 2007 SC 85).
5. After giving an ardent hearing to the respective learned counsel for the parties and going through the relevant record we have observed that according to the prosecution's story more than 8000 unlabelled intoxicating/sedative injections were recovered at the instance and from the possession of the appellant, respectively. According to the report of the chemical examiner, the said injections contained opium alkaloids but the chemical examiner failed to give the percentage of the opium which was found to be the competent of the recovered material. The definition of "Opium" has been dished up vide section 2(h) of the C.N.S.A., 1997, whereas, the definition of "Opium derivative" has been provided through clause (u) of section 2 of the said Act. According to section 3 of the C.N.S.A., 1997, the Federal Government was required to make rules prescribing the method by which the percentage of liquid preparations shall be calculated for the purposes of clause (g)
(h)(t) and (u) of section 2 of the C.N.S.A., 1997, but the proviso of the said section read as under:-- "Provided that unless and until such rules are made, such percentage shall be calculated on the basis that a preparation containing one per cent of substance means a preparation in which one gram of the substance, if a solid, or one milliliter of the substance, if a liquid is contained in every one hundred milliliter of the preparation and so in proportion for any greater or less percentage."
' A perusal of the said section reveals that in case of recovery of any material defined under clauses (g) (h) (t) and (u) of section 2, the percentage, till the framing of the rules by the Federal Government, shall be determined in accordance with the formula as laid down by the proviso of the said section. But in this case while examining the recovered material, the Chemical Examiner failed to give a percentage of the opium alkaloids, which, according to him, were detected in the recovered injections.
6. The case of the appellant is that since the contraband, allegedly recovered from him was in a liquid form, therefore, as per section 3 of the Control of Narcotic Substances Act, 1997, the Chemical Examiner was required to determine the actual percentage of the opium alkaloids, which has not been done in the instant case, whereas, according to the learned Legal Advisor of A.N.F. The Chemical Examiner did not commit any illegality while giving. His report, which does not contain in the percentage of the recovered material. But the case law cited by the said Legal Advisor is distinguishable, inasmuch as, in case of Muhammad Saeed v. The State (2007 PCr.LJ 156), the recovered material was Buprenorphine a material, which does not fall in any of the definitions, provided under section 2(g), (h), (t) and (u) of Control of Narcotic Substances Act, 1997, rather, due to its featuring at _Serial No, 7 of the Schedule attached to the Control of Narcotic Substances Act, 1997, it attracts the definition of Psychotropic substance, falling under section 2(za) of the said Act.
It was in this background that the learned Division Bench of this Court held that substances appearing in the Schedule of Control of Narcotic Substances Act, 1997 are not required to be subjected to the calculation of percentage as required by section 3 of the said Act. However, in this case the injections, which are obviously in the liquid form, contained opium alkaloids, which fall under the definition of opium as provided under. Section 2(u) of the Act, therefore, without determining the percentage of the recovered material after applying the formula as laid down in section 3 of the Act, it cannot be assumed that the alleged recovery of the injections from the appellant attracts the above said penal provisions. ##T## In a judgment delivered by a Full Bench of this Court, authored by our learned brother Asif Saeed Khan. Khosa, J., it was held that "Poast" or "Doda" by itself cannot be termed as a "mixture" of "liquid preparation" for the purposes of Section 2 (f)(iii) or section 3 of the Act, and it was further held that in case of recovery of "Poast" or "Doda" no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc. Available in said material but obviously, the said judgment cannot be applied in this case, because the contraband allegedly recovered from the petitioner was not in a solid shape rather was in a liquid form. In a paragraph 17 of the said judgment, it was observed as under:- "Section 3 of the said Act is confined to 'liquid preparations' only and refers to calculation of percentage only in the context of such liquid preparations."
' So, the said observation also supports our viewpoint. Furthermore, our view is supported by an earlier order dated 7-4-2008 passed by a Division Bench of this Court in Cr. Misc. No, 8116-B/2007.
Insofar as the judgment of the honourable Supreme Court, cited by learned Legal Advisor of Anti- Narcotic Force, is concerned, the same is also not helpful for him because in the said case, the contraband material allegedly recovered from the respondent of the case, was charas and the accused wanted re-examination of the said material and in this backdrop, the said judgment was delivered. Obviously, in the said case, nether the recovered material was in liquid form nor was there any question of determination of calculation of the percentage of the recovered material.
7. In nutshell, we conclude that in cases of recovery of contraband material, in liquid forms, falling within the definition of clauses (g), (h), (t) and (u) of section 2 of Control of Narcotic Substances Act, 1997, for the application of the formula as given E in the proviso of section 3 of the said Act, the ascertainment of the required percentage of narcotic drug by the Chemical Examiner is a must.
However, in this case the Chemical Examiner who was under a legal obligation to find out the percentage of the detected opium alkaloids, failed to do so, resultantly, the appeal in hand is accepted. Consequently, the application under section 3 of the aforementioned Act, filed by the appellant, before the learned trial Court stands allowed. Order accordingly.