1. ' SAJJAD ALI SHAH, J.---The appellant Awal Raef was arrested on 19-7-2008 in Crime No.876 of 2008 of Police Station Customs (Directorate General of Intelligence and Investigation FBR) Karachi for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and after regular trial by the Special Court-II (C.N.S.) Karachi through judgment impugned was convicted and sentenced to suffer life imprisonment with fine of Rs.1,000,000 and in case of default in payment of fine further R.I.
2. For four years was provided. Per prosecution, on 19-7-2008 Directorate Intelligence and Investigation FBR received information that a considerable quantity of Poppy Straw has been brought in the city for further distribution. Consequently, a team was constituted under the supervision of Intelligence Officer who intercepted one Mazda truck bearing Registration No. PX- 0875 at 1930 hours near Naval Colony, RCD Highway, Karachi which was driven by the appellant. He was asked about the goods loaded on the truck but he did not furnish any satisfactory reply. On search 40 jute bags containing Poppy Straw weighing 2125 Kgs were found loaded on the truck. The truck as well as Poppy Straw consequently were seized after preparation of inventory and mashirnama. Six representative samples were drawn and were sealed under the signatures of witnesses.
3. ' The record reflects that the charge against the appellant was framed on 15-7-2013 to which he pleaded not guilty and claimed trial.
4. ' The prosecution examined Syed Zaffar Hussain Naqvi, Intelligence Officer as. P.W.1 who produced Mashirnama of arrest as Exh.6/A, Inventory of goods as Exh.6/B, Notice under section 171 of Customs Act as Exh.6/C, F.I.R. Exh.6/D, Chemical analysis report as Exh.6/E, copy of sample receipt as Exh.6/F.
5. Saeed Farooqui, Intelligence Officer was examined as P.W.2 who produced weighing receipts of Honest Weighbridge as Exh.7/A and Exh.7/B.
6. ' P.W.1 Syed Zaffar Hussain after reiterating the contents of the. F.I.R. Asserted that the contents of jute bags were checked in presence of P.W.2 and one Shahab "an independent witness". The appellant on inquiry disclosed that grass is loaded in jute bags, whereas on inspection Poppy Straw was found therein. The witness produced mashirnama of - arrest and recovery as Exh.6/A, inventory duly signed by the witnesses as Exh.6/B, notice under section 171 of the Customs Act, 1969 to appellant as Exh.6/C. He further stated that six samples were drawn from the jute bags which were secured and sealed at the spot. Samples were signed by P.W.1 and witnesses/mashir Saeed Farooqi of the Custom Intelligence and one Shahab. F.I.R. Was produced as Exh.6/D and Chemical Examiner's Report as Exh.6/E. In cross-examination this witness admitted that the case property was not sealed and that he drew only six grams samples from six jute bags out of 40 and out of six only three samples were sent to HEJ Research Institute of Chemistry, University of Karachi for chemical analyzation. The witness produced receipt of samples as Exh.6/F. He also produced 38 jute bags articles "A to A-37". It was conceded that neither the samples were drawn nor mashirnama was prepared on the spot.
7. ' P.W.2 Saeed Farooqi deposed that on 19-7-2008 he along with other Intelligence Officers under the command of P.W.1 in official vehicle reached at RCD Highway, Naval Colony near Yousuf Goth where they parked their official vehicle on the right side on RCD Highway and about 7-30 p.m. Saw one truck coming from Yousuf Goth. The truck was stopped, the said truck was fully loaded with jute bags. P.W.1 asked the driver about the said jute bags and driver replied that it was grass, two constables checked out the jute bags where they found Doda. The driver disclosed that he brought the consignment from Yousuf Goth as somebody had hired his truck for Rs.1,300 but he was not able to produce any bilty. The truck along with loaded jute bags were brought at warehouse, the accumulated weight of 40 jute bags was found 2125 Kgs. Thereafter mashirnama Exh.6/A, inventory Exh.6/B were prepared and was signed by him as mashir. He further stated that the complainant drew six samples containing six grams of poppy straw each from six jute bags out of 40. The samples were sealed and the signatures of this witness were obtained on the samples 40 jute bags were sealed with paper tape. He affirmed that 38 jute bags produced by P.W.1 as Article A to Article A-37 were same whereas two were destroyed. In cross-examination the witness admitted that in his 161, Cr.P.C. Statement he did not disclose that P.W.1 drew six samples from six jute bags. The prosecution, thereafter, closed its side through Exh.8.
8. ' The appellant in his 342, Cr.P.C. Statement pleaded his innocence and asserted that he was involved in a false case and that he had no knowledge that Poppy Straw was in his truck.
9. ' Mr. Aman Shirin Khattak, learned counsel for the appellant, has contended that the appellant was just a driver and was plying Mazda truck for picking up the consignment for short distances in order to earn his livelihood and in fact he has loaded the consignment from Yousuf Goth and was to drop it at Mauripur Adda without knowledge that what bags actually contained. It was further contended that there is nothing on record to show that as to how many samples were drawn and what was their weight and as to whether same were sent for chemical analyzation. It was next contended by the learned counsel that Industrial Analytical Centre HEJ Research Institute of Chemistry from where recovered substance was analyzed is not registered in terms of sections 34, 35 and 36 of the Act, 1997 and, therefore, neither any reliance can be placed nor any conviction can be handed down on the basis of such report. In support of his contention counsel has placed reliance on the judgment of this Court in the case of Collector of Customs (Preventive), Government of Pakistan, Custom House, Karachi v. Saijad Muhammad Jaffer and 2 others (2009 PCr.L.1 232). It was further contended that the samples drawn do not represent any specified quantity nor weight of sample is available on record, therefore, the conviction under section 9(c) and sentence for life cannot sustain. Counsel has further placed reliance on the judgment of the Apex Court in the case of Ameer Zab v. The State (PLD 2012 SC 380). In the end, counsel contended that the jail roll available on record would reflect that the appellant has already served almost 16 years including remissions, therefore, if this Court is not inclined to accept his appeal at least his sentence be reduced to one already undergone.
10. ' Conversely, Mr. Dilawar Hussain, learned Standing Counsel, has contended that huge quantity of poppy straw was recovered from the appellant and the Lab. Report of the samples drawn from the recovered substance is in positive, as it states that poppy straw contained several alkaloids, such as morphine, codeine with other opium narcotics, therefore, the appellant has been rightly convicted. Standing Counsel has further referred to Exh. 6/F and has contended that Industrial Analytical Centre Karachi is accredited Lab from Pakistan National Accreditation Council (PNAC) but frankly conceded that it has not been notified by the Federal or the Provincial Government to be a Testing Laboratory.
11. ' We have heard the learned counsel for the respective parties, perused the record and the case- laws cited at bar.
12. ' As to the first contention raised by the learned counsel for the appellant that the appellant was just a Driver and was driving Mazda Truck for loading/unlading to earn his livelihood and had no 'knowledge of the consignment which ultimately was found to be Poppy Straw. The responsibility of the Driver carrying narcotic substances has been determined by the Apex Court in several judgments and reference can be made to the case of Sherzada v. The State (1993 SCM R 149), Shah Wali and others v. The State (PLD 1993 SC 32), Rabnawaz v. The State (PLD 1994 SC 858), Ikram Hussain v. The State (2005 SCM R 1487). The apex Court has referred these judgments in the case of Ghulam Qadir v. The State (PLD 2006 SC 61) where it was the case of prosecution that poppy flowers weighing 320 kilograms packed in eight sacks were found in secret cavity of coach driven by the petitioner. It was pleaded that the petitioner had no knowledge about the contraband and further a contradiction was pointed out in the stance .Of the prosecution in earlier and subsequent stages where firstly the "Poppy Flowers" were shown to be recovered from the secret cavity and subsequently from the roof of the coach. The apex Court while rejecting the plea held as follows:- "(6) Keeping in view the pronouncement made in the reported judgments of this Court we are of the opinion that the driver cannot be absolved from the responsibility if the contraband items are being transported openly on the roof of the vehicle, being driven by him.
(7) Learned counsel emphasized that there is a contradiction in the stance taken by the prosecution at the initial and subsequent stages of the case. He explained that according to F.I.R.
13. The articles were recovered from the roof of the bus but subsequent position alleged that they were concealed in specially designed cavities. Therefore, the benefit whereof is bound to go to the convict/petitioner.
(8) We are not agreeable with the contention of the learned counsel because fact remains that "Poppy Flowers" were found lying on the roof of the vehicle therefore, the technicality, which is being pointed out by the learned counsel, would not be sufficient to acquit him. In addition to it in such-like cases Courts are supposed to dispose of he matter with dynamic approach, instead of acquitting the drug paddlers on technicalities, as it has been held (1993 SCMR 785) and (PLD 1996 SC 305)."
14. ' Likewise, in the case of Saif-ur-Rehman v. The State (PLD 2009 SC 383), it was pleaded on behalf of the appellant that in view of his confessional statement conviction is not challenged but reduction in the quantum of punishment was prayed on the ground that the petitioner was only a carrier who had accepted to transport the said huge quantity of narcotics for some monetary compensation and the Apex Court in response held as under:-- "4. We have pondered over the prayer of the learned Advocate Supreme Court vis-a-vis the reduction in quantum of punishment but find it difficult to grant the same. According to such a request would amount to laying down a law that a person who commits a crime not for any personal motive or reasons but agrees to the same only on hire and for some monetary reward, would always be entitled to compassion, sympathy, mercy and could consequently demand leniency in the matter of quantum of punishment. We are afraid, we cannot he a party to creating such a law which would amount to encouraging and in fact licensing the practice of hired assassins, hired dacoits, hired robbers and hired criminal of other sorts. In fact we would, on the contrary, declare that a hired offender was not entitled to any leniency or sympathy in the matter of quantum of punishment and such are the people who deserved to be dealt with an iron hand and deserved the same kind of treatment which would be warranted in the case of any other criminal, if not stricter and harsher treatment."
15. ' As to second part of the first contention that the appellant was not in the knowledge that the jute bags which he was carrying contained narcotic substance i.e. Poppy Straw. Suffice it to observe that section 29 of the Act 1997 lays onus upon the accused to disprove his unawareness about the narcotic substance found in his possession. In the instant case though the appellant during interrogation stated that he was carrying the recovered narcotic substance i.e. Poppy Straw under the impression that it was simply grass. However, the appellant has neither taken this plea in his 342, Cr.P.C. Statement nor has chosen to appear in the witness box or to adduce evidence in support of his defence. The plea therefore, does not find favour with us and is rejected.
16. ' The last plea of the appellant that the Lab test conducted of the recovered substance was in violation of sections 33, 35 and 36 of the Act 1997, in our opinion requires serious consideration. We have thoroughly scrutinized the record and have found following evidence in respect of the samples drawn and the manner they were sealed:-- ' P.W.1 in his statement deposed:- "Six samples have been drawn from the boras, which were secured, which were sealed on the spot, samples were signed by accused Driver Awal Reaf and witnesses Saeed Farooqui and Shahab."
17. ' In cross-examination same witness stated:-- "It is correct to suggest that the case property was not sealed. Vol. Says that due to lapse of the time all the seals were destroyed."
18. "It is a fact that I only drawn samples each containing six grams from six jute bags out of 40 jute bags for the purposes of chemical analysis."
19. ' He further stated in cross-examination:-- "It is correct to suggest that I had not taken the samples at spot. Vol. Says that same has been done at the warehouse SITE Area, Karachi."
20. ' It is correct to suggest that I had not prepared mashirnama Exh.6-A on the spot. Vol. Says the same was prepared at the warehouse, SITE, Karachi.
21. ' There is nothing on record to substantiate that the samples drawn from six jute bags were sealed and signed by the mashirs as the Lab. Test report does not spell out the receipt of any sealed samples.. There is further nothing on record to show that the samples drawn from the recovered narcotic substance were sent for chemical analyzation. Exh.6F being the Chemical Analyzer Report in two pages (first being covering letter and the second being Test Report) does not show the number of samples received or the weight of the six samples or the amount of Poppy Straw consumed during the process of analyzation. The Sample Receipt produced as Exh.6-F is totally silent about the number of samples sent, their weight or seals thereon. The only thing which find mentioned on the sample's receipt is:-- Packing: Bottle / Packet / Container / Loose. Quantity: 3 gm / ml / pes.
22. ' In the circumstances, there is nothing on record to show as to whether the samples drawn, if any, from the recovered narcotic substances were sealed and sent for chemical analyzation or the chemical analyzation report represent any of the jute bag containing narcotic substance allegedly carried by the appellant. All which can be gathered from the receipt of the chemical analyzation is a packet containing 3 grams of Poppy Straw which does not match with the deposition of the prosecution witness who had deposed that they drew six samples from six jute bags out of 40 and each sample was of six grams.
23. ' The other important aspect on this very issue appears to be the worth of the Lab report. Perusal of sections 34, 35 and 36 of the Act 1997 are to the accumulative effect that in the first instance a laboratory is to be notified by the Federal or Provincial Government to be a testing laboratory for carrying out the purpose of Act 1997 and thereafter the said Government is to notify such persons as it thinks fit, having the prescribed qualification to be Federal or Provincial Government Analyst for such area and in respect of such narcotic drug, Psychotropic Control Substance as may be notified. The report of such laboratory in respect of narcotic drug or psychotropic control substance duly tested by such notified analyst is admissible as evidence of the fact stated therein without formal proof and not otherwise. In the instant case Lab report produced by the prosecution of the alleged test conducted by Industrial Analytical Centre of course violates the mandate of law as Industrial Analytical Centre even to the prosecution is neither notified by the Federal or Provincial Government to be a testing Lab nor nay official of the said. Lab has been notified as Analyst. In the circumstances, the report produced by the prosecution cannot be made basis of conviction for an offence under section 9(c) of the Act 1997. The Apex Court in the case of Muhammad Imran v. The State (2011 SCM R 1954) has held that since the Control of Narcotic Substances Act 1997 provides stringent sentences, therefore, its provisions are to be construed strictly not only in respect of procedure but also regarding furnishing of proof about the recovered substance such as Lab report. In the case under reference Poppy Straw in 112 nylon and 16 jute sacks weighing 3880 Kg was recovered but the memo of recovery did not mention that the recovered Poppy Straw was grinded and then sent to Chemical. Examiner, whereas, Chemical Examiner report reflects that the sample was in grinded and crushed form. The Apex Court while holding that the grinded and crushed Poppy Straw were not the illicit articles which were recovered from the accused, while setting aside the conviction and sentence, acquitted him.
24. ' The worth of the Lab Report of Industrial Analytical Centre was considered by this Court in the case of Collector of Customs v. Sajjad Muhammad Jaffer (2009 PCr.LJ 232), wherein this Court after examining the provisions of sections 34, 35 and 36 of the Act 1997 held as under:-- "From the above provisions of law, it is clear that firstly a laboratory is to be notified by the Federal Government or Provincial Government to be testing laboratory, thereafter the said Governments are required to appoint an official for analysis through a notification and if the said officer of the notified laboratory gives report then it can be used as evidence."
25. ' Likewise, in the case of Israr v. The State (2011 PCr.LJ 1203) a Bench of Peshawar High Court held:- "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 Rules framed thereunder, 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.
26. Remand of the case would again be inevitable."
27. ' In the instant case it has come on record that the alleged samples which according to prosecution were recovered from six jute bags out of 40 and were weighing six grams were never sent for chemical analyzation and further it has come on record that the remaining recovered substance was never sealed, therefore, we do not feel it safe to remand the case for drawing fresh sample as no sanctity can be attached to the recovered remaining substance which is allegedly lying in the godown of the respondents for more than five years and that too in unsealed condition.
28. ' For what has been discussed above, we while accepting this appeal and by giving benefit of doubt to the appellant acquit him of the charge. He shall be released forthwith if not required in any other case.