1. Mehta Kailash Nath Kohli, J.--This appeal under Section 48 of Control of Narcotic Substances Act, 1997 has been directed against judgment dated 30th June, 2008, passed by learned Special Judge (CNS), Quetta in Case No, 21/2007, whereby; accused-respondent has been acquitted of the charge under Section 9(c) of Control of Narcotic Substances Act, 1997.
2. Facts of the case, in brief, are that on 26th March, 2006, an FIR No, 09/2006, under above mentioned section was registered with P.S. Anti Narcotics Force, Quetta on the report/murasla of. complainant Captain Shehzad Younas, Assistant Director, ANF stating therein that on receipt of credible information that respondent Abdul Samad alongwith co-accused Fazal Muhammad and Jameel Ahmed have stored huge quantity of narcotics in the house of accused Abdul Samad, which they will smuggle to some other place. On receipt of said information, a raiding party was constituted under the supervision of Major Imtiaz Haider, Deputy Director ANF. It was further stated that at about 01:30 p.m. on the pointation of spy, the raiding party proceeded to the alleged house, where accused Jameel Ahmed, who was watching the house on seen the ANF party, went inside the house and had informed his other two colleagues about arrival of ANF party, and thereafter, all the three accused persons escaped from secret door of the alleged house. It was further alleged that on checking of the house, 22 sacks containing 40 packets each sack, while one sack containing 15 packets (895 packets) of baked charas were recovered. Weighment of each packet was found to be one kilogram; sample of 4 grams from each packet of charas i,e, 92 grams sample were separated for the purposes of chemical examination, while remaining charas was sealed in the sacks and the same were taken into possession. It was further stated that in the compound of alleged house one motorcycle was also taken into possession by the ANF party. On such report, present FIR was registered and respondent Abdul Samad was arrested. After completion of investigation challan of the case was submitted in the Court of learned Special Judge (CNS), Quetta, who framed charge, which was denied by the accused-respondent. To substantiate their case, prosecution produced PW-1 Captain Shehzad Younas Malik (complainant), PW-2 Muhammad Akram (Constable ANF Station), and recovery memos, were produced, while; PW-3 Shabbir Hussain, Naib Sobedar/Investigating Officer appeared having produced challans in the case. Statement of accused-respondent was recorded under Sections 342 and 340(2), Cr.P.C, however, no evidence was produced in his defence.
3. On conclusion of trial, learned Special Judge (CNS), Quetta, vide judgment dated 30th June, 2008 acquitted the accused-respondent of the charge. Being aggrieved of aforementioned order of acquittal, present appeal has been filed before this Court.
4. Mr. Gohar Yaqoob Yousafzai, Special Prosecutor, ANF has appeared and stated that the learned trial Court has seriously erred in acquitting the accused. It has been proved on record that contraband huge quantity of narcotics was recovered and the learned Judge has seriously erred in acquitting the accused, and thus; the judgment is based on mis-reading of record.
5. We have considered the arguments advanced by learned Special Prosecutor, ANF and perused the record. On perusal of record, it transpires that the learned Judge has acquitted the accused mainly on two grounds; (i) that the report of chemical expert is not made part of the record and there is nothing on record that the said report was made A part and parcel of the trial record; (ii) that the house from where the alleged recovery is stated, has not been proved to be owned by the present respondent, while; on the contrary, it has been concluded that the same was owned by someone else and relating to the same, copy of the decree dated 1st September, 2006 (Ex: D/1-A) was also tendered. On perusal of record, it transpires that none of the witnesses including the Investigating Officer 'has tendered any chemical expert report, nor the said report has been made as part of the record of this file, or any request has been made within the purview of Section 528, Cr.P.0 for leading additional evidence. It is basic principle of law that the chemical report must be tendered in evidence to enable the accused person to rebut the same. In the case of Wali Muhammad v.
6. King-Emperor (AIR 1924 Allahabad 193), his lordship was of the view that the report cannot be examined for the first time in appeal. It has been held by his lordship that report of chemical expert is a piece of evidence, but it has been simultaneously held that it is to be brought on record by tendering the same through some witness. The relevant observations of his lordship are reproduced herein-below: "....... This however does not imply that without tendering it in evidence it can be made use of for the first time in appeal. It is a piece of evidence that does not require any formal proof, but at the same time it must be tender as evidence and used as such, so that the accused may have chance of questioning the identity of the packets. I am satisfied that this was not done in the present case. In failure of the report having been formally brought on the record, there is really no satisfactory evidence to show that the powder contained in these packets was cocaine."
7. For the foregoing reasons, the learned trial Court has passed the judgment on proper appraisal of evidence and law available, and thus; the order of acquittal, is based on legal footing. There is no mis-reading and mis-appreciation or perversity in the judgment, warranting interference by this Court. Appeal having no merit is accordingly, dismissed in limine.