Ikramullah Khan, J.--The instant criminal appeal, has been preferred hereto before this Court, by the petitioner/convict under Section 48 of the Narcotics Substances Act, 1997 read with Section 410; Cr.P.0 against the order of conviction passed by the learned Additional Sessions Judge-WI, Peshawar under Section 9(C) of the CNSA, 1997.
2. On the allegation of having in possession, narcotics substance weighing 15 kgs, allegedly recovered from in side of a motor car Bearing No, LRL-4122 concealed therein beneath the bonnet of the car wrapped in a hard kind of plastic, driven by the petitioner/convict at the time of interception by Police on the road at Kohat.
3. A regular FIR was lodged thereof against the petitioner awl one another absconder accused, and on conclusion of trial by Special Judge, Kohat, the appellant was convicted and sentenced to life imprisonment, and a fine of Rs, 100000/- or in default to further undergo six months simple imprisonment, however benefit of Section 382-B, Cr.P.0 was extended thereto.
4. The learned counsel for the accused, argued that the order/judgment of conviction is extraneous, fallacious and is the result of mis-appreciation of evidence. He further stated that the FSL report is verified by unauthorized Assistant Chemical Examiner, the laboratory which has endorsed thereof the test of the alleged narcotics substance was not notified laboratory in this regard. The person who verified the FSL report and the test conducted thereof was not a qualified person in that behalf too. He submitted that the car from which the alleged narcotics was recovered, not produced in Court to substantiate the averment of the prosecution in that behalf; that it is not proved, that the alleged narcotics recovered there from the car, was in conscious knowledge of appellant; that material contradiction is visible on record amongst the statements of various PWs; that the prosecution has miserably failed to prove the case against accused beyond reasonable doubts.
5. On the other hand, the learned counsel on behalf of the State, supported impugned judgment and conviction inflicted upon the appellant/convict.
6. Arguments were heard and record was carefully gone through.
7. The CNSA, 1997 is a special law exclusively covers cases I pertains to narcotics drugs.
8. The procedure provided thereof shall be followed and Courts are bound to give effect to the provision contained there under the CNSA, 1997 as stringent punishment was provided there under the CNSA, 1997 in regard to commission of offences falling thereof under the Act.
9. Sections 34 to 36 of the Act, in unambiguous terms thereby prescribed procedure in respect to establishment of narcotics testing laboratories, the appointment of Government analyst for the purpose thereof and the qualification of such Government analyst alongwith his respective power in regard to analysis of various kind of narcotics defined there under Section 2 of the Act and described thereto the schedule annexed therewith the Act.
10.Section 34 of the Act describe the procedure for establishment of Federal Narcotics Testing Laboratory in the manner as;--
11. "Section 35. ... Government Analyst. The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such person as it think fit, having the prescribed qualifications, to be Federal Government Analysts or, as the case may be, Provincial Government Analysts, for such areas and in respect of such narcotic drugs, psychotropic substances or controlled substances as may be specified in the notification".
12.Section 36 of the Act describes the procedure there of in regard to verification and attestation of the report prepared according to the provision contained there under Section 36 of CNSA, 1997 as;-- "Section 36. Report of Government Analysts.... (1) The Government Analyst to whom a sample of any narcotic drugs, psychotropic substances or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive".
13.These provisions of law enumerated there under the Act shall be read in addition to and not in derogation of Section 510 of the, Cr.P.C, 1898.
Section 510....Report of Chemical Examiner, Serologist. Any document purporting to be a report, under the hand of any Chemical Examiner, Assistant Chemical Examiner to Government [or of the Chief Chemist of the Pakistan Security Printing Corporation Limited] or any Serologist, fingerprint expert or fire-arm expert appointed by Government 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 of other proceeding under this Code.
Provided that the Court may, [if it consider necessary in the interest of justice] summons and examine the person by whom such report has been made]".
14.There is no substance in the contention of the learned counsel for the appellant, in regard to the objection he raised thereof in respect of the verification or test conducted thereupon the narcotics by Assistant Chemical Examiner as under Section 36 of the Act, no designation has been mentioned thereof of the Government Analyst, however under Section 510 of, Cr.P.C, the report prepared thereof even by an Assistant Chemical Examiner would be presumed to be prepared, verified and authenticated by a competent person in this behalf and such report prepared by even Assistant Chemical examiner had been made admissible under the Section 510, Cr.P.0 read with Section 36 of the Act. The provincial Government of erstwhile NWFP, Khyber Pakhtunkhwa, in pursuance of the provision contained in sub-section (2) of Section 34 of the Act, 1997 has directed vide Notification No, SO(P1)H1/3-2/97 dated 09.06.2001 that the forensic laboratory of Police Department at Peshawar shad for all intent and purposes of the Act, 1997, shall be deemed to be the Provincial Narcotics Testing Laboratory, set up by the provincial Government with effect from 11.07.1997.
14. It is pertinent to be noted that the official who has verified, attested and conducted the test thereupon the narcotics recovered thereof, has been notified vide Notification No, SO(Police) HD/3- 18/83 dated 05.08.2009 as Government analyst to Government of erstwhile NWFP under Section 35 of the Act, 1997 in respect of narcotics and other psychotropic substances as prescribe in the Act, 1997, w,e,f, 20.03.2007.
15. The Federal Government in exercise of the powers conferred therein by Section 77 of the Act, 1997, read with Section 35 end 36 thereof, had made rules in respect of procedure for sending to and receiving back the narcotics, whereby, the qualification has been prescribed thereof for Government Analyst as envisaged under Sections 35 & 36 of the Act. These rules are called and known as "Control of Narcotics Substances (Government Analyst) Rules, 2001.
16. Rule 3 prescribed the required qualification, thereof, for Government Analyst to be appointed thereof under Section 35 of the Act, which is reproduced hereunder as: "Rule 3(1).--A Government Analyst shall be a person who has a degree in Pharmacy or Pharmaceutical Chemistry or Medicine from a recognized University or of any other institution recognized by the Federal Government for this purpose and has not less than three years post graduate experience in the test and analysis of drugs".
17.In the present case, the Forensic Science Laboratory (FSL) report which was exhibited in course of trial by PW-2 the Investigation Officer as Ex PW- 2/4 but with specific objection on behalf of appellant in the manner and style as;-- "The test was conducted by a person, who is not competent according to law.
18.The above objection raised thereof in due course of trial but the learned Judge failed to address properly the objection raised thereof in his judgment.
19. In strive of to rendered justice, incumbent upon every Judge to appreciate the evidence and give effect to every piece of evidence according to the law on the subject for the purpose of admissibility of such piece of evidence, in greater interest of dispensation of justice.
20.There is no any lacuna, or infirmity in the establishment of the Provincial Testing Laboratory for purpose of testing narcotics substance in regard to Section 34 of the Act.
21. Any person, appointed, designated thereof either Assistant Chemical Examiner, or Chemical Examiner but conferred thereupon him the power and declared as Government analyst in pursuance of the provision contained there under Section 35 are legal officer in this regard for all intent and purposes in regard to testing the narcotics substance and the report prepared, signed or verified and attested by him shall be presumed to be the report as envisaged under Section 36 of the Act and is admissible evidence as provided thereof under Section 510, Cr.P.C.
22. However in the present case the conviction and sentence inflicted upon the appellant was based materially on the FSL report. The striking question which was vehemently stressed by the appellant's counsel too, is whether the person who prepared verified, signed and conducted test in regard to purportedly recovered narcotics substance was a competent person in. regard to his qualification as prescribed under Rule 3 of the Government Analyst Rule, 2001 in pursuance of Section 35 of the Act, irrespective of the fact whether he was Assistant Chemical Examiner or Chemical Examiner.
23.As on the conclusion of the hearing, this Court to satisfy itself, we summon the concerned purportedly appointed Government analyst to know his competency in regard to his qualification but he did not satisfy us as regard to his qualification.
24.This Court in an unreported judgment delivered in case of Muzzamil Hussain versus The State {Cr. Appeal No, 401 of 2001) observed therein as: "Muhammad Zeb Khan at the time of furnishing his opinion was also not appointed in terms of Section 35 of the CNSA, 1997 but subsequently declared so vide notification dated 05.08.2009 with retrospective effect. It is further noted that Muhammad Zeb Khan also lacks the requisite qualification" and remanded back the case for getting fresh report".
25.This view was also held by this Court in case of Israr versus The State (2011 PCrLJ 1203) as:-- "When the person analyzing the samples could not be termed as a Government Analyst, in term of Section 35 of the CNSA, 1997 and the rules framed there under".
Such report cannot be relied upon. And the case was remanded back for re-examination of the narcotics substances recovered thereof in that case".
26. In this case, too the person who testified the alleged narcotics was the same person, who conducted test upon the narcotics in the above mentioned unreported case.
27. The narcotics substances, was brought under processing as evident from the FSL report on 04:03.2009 while the concern officer was declared as Government Analyst on 05.08.2009, but with retrospective effect. The concerned declared Government Analyst lacks of the required qualification as envisaged under Section 35 of the Act read with Rule 3 of the Narcotics Substances (Government Analyst) Rule, 2001.
28. Lest this Court pass any findings on the other ground of challenge made by the appellant, which would certainly prejudice the case of either party, suffice it to say that the most crucial issue of forensic verification of narcotics has not been carried out in accordance with the prescribed manner as provided there under the provisions of the Act, and as such the conviction so, recorded there under the learned trial Court Special Judge required to be set aside.
29.Accordingly, for the reasons stated hereinabove, this Court partially allow the appeal, set aside the conviction and the sentence inflicted upon the appellant and send the case back thereto for decision afresh after having fresh samples and getting them examine from chemical examiner duly appointed in terms of Section 35 of the Act, read with Rule 3 of the Government Analyst Rules, 2001 in terms of the prescribed qualification.