EJAZ AFZAL KHAN, C.J.---On receipt of a spy information that a huge quantity of narcotic shall be smuggled into Peshawar through tribal area on a bicycle, Abdul Baais Khan, S.H.O., stopped the bicycle ridden by Muhammad Israr, appellant herein. When search of the bicycle led to the recovery of 15 kg of charas, a case under section 9, C.N.S.A. was registered against him, vide F.I.R.
No, 266, dated 4-6-2007 at Police Station Sarband, Peshawar. On completion of investigation, he was sent to the court of learned Judge Special Court for trial who on its conclusion sentenced him to undergo imprisonment for life with fine of Rs, 50,000 or in default to undergo five months S.I., vide judgment dated 20-6-2008. He preferred appeal in this court which was allowed, vide judgment dated 24-2-2010, by holding as under:-- "Whether the Assistant Chemical Examiner possessed the required qualifications and could be held to have been notified as such in terms of section 35 of the Act and whether such report could be made basis for convictions, are the questions which can only be addressed after summoning and examining the said Examiner. As these grounds have to be conclusively dealt with for the just decision of the case, remand of the case would be inevitable. We thus without entering into the merits of the case allow this criminal appeal, set aside the conviction and sentence recorded by the learned trial Court and send the case back thereto for decision afresh after attending to the questions highlighted above."
2. The learned trial Judge after examining the Chemical Examiner, again convicted and sentenced the appellant to imprisonment for life with fine of Rs, 50,000 or in default to undergo five months S.I., vide judgment dated 8-6-2010. Hence, this appeal.
3. The learned counsel appearing on behalf of the appellant contended that when the person analyzing the samples cannot be termed as a Government Analyst in terms of section 35 of the C.N.S.A. and rules made there under, his report being devoid of any evidentiary worth cannot form basis for conviction, therefore, conviction and sentence, being bad in law cannot be maintained.
4. As against that, the learned Deputy Advocate-General appearing on behalf of the State defended the report but when confronted whether the Analyst giving opinion can be termed as a Government Analyst within the terms of section 35 of the C.N.S.A. and the Rules framed there under, he could not give any answer much less satisfactory. Such report thus cannot be relied upon. As far as merits of the case are concerned, we would not like to comment on that because in the circumstances of the case, we are of the view that re-examination of the samples by a qualified Government Analyst would be just and fair not only to the appellant but to the respondent as well.
Remand of the case would again be inevitable. We thus allow this appeal, set aside the conviction and sentence recorded by the trial Court and send the case thereto for decision afresh after taking fresh samples and getting them examined from the Government Analyst duly appointed in terms of section 35 of the C.N.S.A. and the Rules made there under Since the appellant has been in jail for more than three years, it will be rather unjust to keep him in jail till the completion of this process.
We direct his release on bail if he furnishes bail bonds in the sum of Rs, 4,00,000 with two sureties, each in the like amount to the satisfaction of the trial Court.