YAHYA AFRIDI, J.---This Criminal Appeal is directed against the judgment and order dated 10-9- 2011, passed by learned Judge, Special Court/Additional Sessions Judge-I, Peshawar, whereby Muhammad Said and Inayat-ur-Rehman appellants have been convicted under section 9(c) of Control of Narcotic Substances Act, 1997, ("CNSA"), and sentenced to life imprisonment with a fine of Rs,100,000 (one lac) each, or in default of payment of fine to suffer S.I. For six months, in case FIR No,610 dated 10-9-2011, registered at Police Station, Phandu, Peshawar ("FIR"). Benefit under section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C.") has been extended to the convict-appellants.
2. Brief and essential facts of the case according to the FIR are that Khushal Khan SHO complainant, on spy information that huge quantity of narcotics would be smuggled to Swat from tribal territory, along with police party laid a picket at ring road, Jamil Chowk; that in the meanwhile a truck bearing registration No,SW -1993; ("Truck"), coming from tribal area was stopped; that the driver disclosed his name as Muhammad Said, while another person seated in the front seat disclosed his name as Inayat-ur-Rehman; that the search of the truck led to the recovery of 21 packets of 'Charas Pukhta' weighing 1200 grams each, totaling twenty five K.Gs. And 200 grams, from a box concealed beneath its front seat, out of which five grams from each packet were separated for analysis, sealed into separate parcels.
3. To prove its case, the prosecution produced as many as four witnesses; Samin Jan, SI, P.S. Phandu (P.W.1), Jangraiz, Khan, S.I. P.S. Phandu (P.W.2), Khushal Khan, SI P.S. Phandu (P.W.3), and Inamullah ASI P.S. Mattani (P.W.4). The prosecution also Exhibited 'Murasila' as Exh.PA/1, FIR Exh.PA, Application to FSL as Exh.P.W.3/4 Application For Police Custody as Exh.P.W.1/1, Application for recording confessional statement as Exh.P.W.1/2, Application for verification of truck documents as Exh.P.W.1/3, and recovery memo.' as Exh.P.W.3/1, containing, the recovered contraband and the truck.
4. Valuable arguments of the learned counsel for the parties heard and the record perused with their able assistance.
5. Before this Court dilates upon the evidence produced by the prosecution and the findings recorded thereon by the trial Court, it would be pertinent to appreciate that C.N.S.A. Is a special law, which the legislature has enacted mainly to curb the menace of narcotics in our country and thus has provided therein special provisions to achieve the said end.
6. One of the main striking features provided in C.N.S.A. Which is different from the general principles of safe administration of criminal justice is that the onus to prove the guilt of an accused has not been placed entirely on the prosecution but on the accused to prove his innocence. In this regard, we note section 29 of C.N.S.A., which provides: Presumption from possession of illicit Articles.
In trials under this Act, it may be presumed, unless and until the A contrary is proved, that the accused had committed an offence under this Act in respect of;
(a) Any narcotics drugs, psychotropic substance or controlledsubstance......"
7. In reading the aforementioned provision of C.N.S.A., it is clear that the legislature has cast a presumption in favour of the prosecution, which has to be rebutted by the accused to prove his innocence. The judicial consensus, which has developed in our jurisdiction over a period of time, has clearly held that prosecution cannot be totally absolved of its obligations and duty of initially establishing a prima facie' case of recovery of contraband from the conscious possession of the accused and only after the said initial burden is discharged by the prosecution that the onus would shift upon the accused to prove his innocence.
8. On reviewing the evidence produced by the prosecution, this Court finds that the anchor sheet on which the prosecution's case rests and which has been upheld by the trial Court is the FSL report (Exh.PZ) dated 4-8-2010, which was received and signed by the Chemical Examiner on 2-8-2010 and 3-8-2010, respectively. This Court in Amanul-Haq's case (2015 MLD 518), relying on strength of previous judgments of this Court, commented on the FSL report prepared by same Chemical Analyst, who had prepared the FSL report in the present case in terms that:-- "This Court in an unreported judgment delivered in case of Muzammil Hussain v. 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 C.N.S.A., 1997 but subsequently declared so vide notification dated 5-8-2009. 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."
This view was also held by this Court in case of Israr v. The State (2011 PCr.LJ 1203) as:- "When the person analyzing the samples could not be termed as a Government Analyst, in term of section 35 of the C.N.S.A., 1997 and the rules framed thereunder."
"Such report cannot be relied upon. And the case was remanded back for re-examination of the narcotics substances recovered thereof in that case."
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.
The narcotics substances, was brought under processing as evident from the FSL report on 4-3- 2009 while the concerned officer was declared as Government Analyst on 5-8-2009, 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 Narcotic Substances (Government Analysts) Rules, 2001.
Lest this Court passes 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."
In view of the above factual and legal discourse, the 'maker' of the FSL report (Exh.PZ) was not a Government Analyst under the law at the time he prepared the same.
9. Another striking feature of the present case is that appellant Inayat-ur-Rehman, who has been charged in the instant case, had moved the trial Court claiming to be a juvenile and produced his school leaving certificate and the same went un-attended, until the very end of the trial Court, where the trial Court was pleased to order: "Learned counsel for the accused has taken the plea that one of the accused Inayat-ur-Rehman was less than 18 year at the time of occurrence and referred to the statement of accused Inayat- urRehman, wherein school leaving certificate of Inayat-ur-Rehman is Exh.D4. According to the said Exh.D4, age of the accused Inayat-ur-Rehman is less than 18 years at the time of occurrence. But this plea of the accused is at belated stage and accused has already faced his trial jointly with other co-accused. So, at this stage separation of trial of the accused Inayat-ur-Rehman would not undo what he has faced and for which the plea has been taken by the defence. However, this plea of the accused Inayat-ur-Rehman is otherwise reasonable."
This Court takes with serious concern the inaction on the part of the Presiding Officer of the worthy trial Court, who despite the jurisdictional issue raised before it did not legally consider and decide the same. In case, the assertion of the appellant Inayat-ur-Rehman is true and correct, it would surely render the conviction awarded to him by the trial Court without jurisdiction and thus of no legal effect.
10. As far as, the reliance of the learned counsel for the appellants on the 'dicta' rendered in Mula Jan's case (Cr. A. No,173/2012) by the apex Court, it is noted that the description of the contraband rendered in the present case does not have the same striking features, as in the aforementioned case.
11. In view of the above legal discourse, it appears that very crucial issues require reconsideration, which warrants the remand of the case to the trial Court. As far as, this Court deciding the said issues instead of remanding the same to the trial Court, suffice it to state that safe administration of criminal justice requires that none be prejudiced and truth be ascertained. In the present case deciding the case by this Appellate Court would surely prejudice the appellant Inayat-ur-Rehman, as jurisdictional issue raised by him has not been attended to by the trial Court in the appropriate legal manner. Moreover, the very chemical examination of the contraband alleged to have been recovered from the appellants, has not been carried out by a competent, legal and appropriate Government Analyst, as provided under C.N.S.A. And the rules made thereunder. And more importantly , the appellants would surely be prejudiced in case this Court undertakes to proceed with the matter, as warranted and would, therefore, lose a forum of appeal.
12. As far as, the authority of an Appellate Court or remanding the case to the trial Court is concerned, section 423(d) of the Cr.P.C. Is clear and has been approved by the apex Court in Farrukh Sayyar's case (2004 SCMR 1), in terms that: "It was contended by the learned counsel for the petitioners that the High Court having heard the case as an Appellate Court was not empowered to remand the case for writing a fresh judgment in view of clause (b) of section 423, Cr.P.C. ........................................................................................................................................................
'The argument is not tenable for the short reason that the impugned judgment is fully covered by clause (d) of section 423, Cr. P.C. Which is too relevant to be ignored or overlooked. It reads as under:- "(d) make any amendment or any consequential or incidental order that may be just or proper."
13. Accordingly, for the reasons stated hereinabove, this Court allows the appeal, set aside the conviction and sentence awarded to the appellants by the trial Court vide Order dated 10-9-2011 and send the case back to the trial Court for decision afresh, after:-
(i) Having fresh samples of contrabands, obtained and sent for chemical examination by Government Chemical Analyst duly appointed in terms of section 35 of the C.N.S.A. Read with Rule 3 of the Government Analysts Rules, 2001 in terms of the prescribed qualification.
(ii) Determine the age of Inayat-ur-Rehman at the time of the alleged commission of the offence and decide the legal consequence ensuing thereof.
(iii) While sending fresh samples for chemical examination, clear description of the state of the contraband be recorded and there after adjudge the same in the light of Mula Jan's case 'Supra'.
As the appellants have already suffered the rigors of trial and confinement, the trial be concluded within three months, if not earlier, from the date of receipt of this Order. In case, the prosecution delays the trial, the present appellants may seek their post arrest bail before the trial Court.