AALIA NEELUM, J.---Haji Zafar Abbas son of Ghulam Ali, caste Baloch Jaskani, resident of Chak No,100/BTD Sowala, Tehsil Karor, District Layyah, the appellant was involved in case FIR No, 18 of 2010, dated 29.10.2010, offence under sections 9(c), 15, 17 of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF Mianwali and was tried by the learned Sessions Judge/Judge Special Court (CNSA), Mianwali. The learned trial court seized with the matter in terms of judgment dated 26.6.2012 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to nineteen (19) years Rigorous Imprisonment with the direction to pay Rs,2,00,000/- as fine and in case of default thereof, further undergo Simple Imprisonment for two years. The benefit of section 382-B of Cr.P.C. Was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Haji Zafar Abbas-appellant assailed his conviction through filing of the instant appeal. It is pertinent to mention here that a notice for enhancement qua quantum of sentence was issued to the appellant during the hearing of Crl.
Misc. No,1/2013 which was decided on 06.3.2014, therefore, the office prepared a separate file bearing Crl. Revision No,213/2014 and the same is being decided along with the main appeal, as well.
3. The prosecution story as alleged in the FIR (Ex.PA/1) lodged on the complaint (Ex.PA) of Ghulam Abbas, Inspector (PW-4) is that on 29.10.2010 he (Ghulam Abbas, Inspector, PW-4) received spy information that Syed Akhtar Ali Shah alias Wadday, his brother Sammar Ali Shah and their leader Haji were selling narcotics outside their house situated at Darbar Rajan Shah, Karor, District Layyah upon which a raiding party was constituted comprising of Ghulam Abbas, Inspector complainant (PW-4), Muhammad Rafique, HC (PW-3), L/Nike Munir Ahmad, Khalid Mamood and Javed Ahmad, constables along with other police officials. The spy informer was also associated with members of the said raiding party. At about 4.15 p.m. The raiding party reached at the spot and found that Syed Akhtar Ali Shah alias Wadday Shah riding on a motorcycle who had placed a 'Tom' (bag) on the fuel tank of the motorcycle while his brother Samar Ali Shah sitting behind him on the motorcycle had placed a 'Tore (bag) on his right leg while Haji Zafar, present accused/appellant riding on another motorcycle was carrying a 'fora' in his right hand and when the raiding party stepped forward to apprehend them, Syed Akhtar Ali Shah armed with Kalashnikov and Samar Ali armed with pistol started firing on the raiding party and one bullet hit Constable Faheem Khan, who fell down. The raiding party tried to overpower them but Syed Akhtar Ali Shah and Syed Samar Ali Shah fled away while firing indiscriminately threw their 'Toms' and succeeded in running away on their motorcycle in the narrow streets but the appellant was apprehended by the raiding party. From the 'Tore thrown by Syed Akhtar Ali Shah, ten packets of Charas weighing nine (9) kilogram (one kilogram each) and 500 grams was recovered whereas from the 'Tom' thrown by Samar Ali Shah, five packets of opium weighing five (5) kilogram (one kilogram each) was recovered. From the fora' of the present appellant, eleven (11) packets containing Charas weighing 10 kilogram (one kilogram each) and 500 grams was recovered. Out of the Charas recovered from Syed Akhtar Ali Shah, 10/10 grams was separated for chemical analysis whereas remaining Charas P/1 was taken into possession vide recovery memo. Ex.PH by embossing a seal of "Inspector G.A. Memon" comprising of eleven (11) parcels. Likewise, out of the Opium recovered from Syed Samar Ali Shah, 10/10 grams was separated for chemical analysis whereas remaining Opium P/2 was taken into possession vide recovery memo Ex.PB by embossing a seal of "Inspector G.A. Memon" comprising of six (6) parcels. Similarly, out of the Charas recovered from Haji Zafar Abbas, appellant, 10/10 grams was separated for chemical analysis whereas remaining Charas P/4 was taken into possession vide recovery memo. (Ex.PJ) by embossing a seal of "Inspector G.A. Memon" comprising of twelve
(12) parcels. Motorcycle Honda CD-70 P/5 which was used in the trafficking of narcotics by the appellant was also taken into possession vide recovery memo. (Ex.PK). From personal search of the appellant, cash Rs,430/- was recovered which was taken into possession vide recovery memo (Ex.PD). A mobile telephone sim P/7 and NIC of Akhtar Shah P/6 were also recovered from accused Haji Zafar, appellant which were taken into possession through recovery memo. Ex.PE. Thereafter a complaint (Ex.PA) under sections 9(c), 15, 17 of the Control of Narcotic Substances Act, 1997 was prepared by Ghulam Abbas, Inspector (PW-4) and the same was sent to the Police Station ANF Mianwali for registration of a case through L/NK Munir Ahmad. A separate complaint under sections 353, 324, 186, 34, P.P.C. Regarding combat and murderous assault on ANF party was also sent to the Police Station Karor, Lal Esan, Karor for registration of case upon which a copy of case FIR No,590/2010 registered at Police Station Karor Lal Esan has been attached with the challan as Ex.PM. The investigation was conducted by Ghulam Abbas, Inspector (PW-4). He also inspected the place of recovery and recorded inspection note and prepared rough site plan Ex.PL. Thereafter, the complainant along with the accused/appellant, case property and injured staff member Faheem proceeded to THQ Hospital Karor Lal Esan. The doctor referred Faheem injured to PAF Hospital, Mianwali where the said injured was admitted in the hospital and after that the Investigating Officer reached to the Police Station along with the accused and case property. At the gate of Police Station ANF Mianwali, L/NK Munir Ahmad handed over copy of FIR to the complainant (PW-4) and he completed head-notes of the documents. Thereafter, the complainant handed over the case property to the Moharrar and confined the accused in the lock up. On the next day, the accused was sent to judicial lock up. On 01.11.2010 the Investigating Officer (PW-4) recorded statements of Sepoy Ayet Ullah and MHC Abbas regarding dispatch of sample parcels to the office of Chemical Examiner. During investigation, the complainant came to know that Akhtar Shah and Haji Zafar had been convicted in narcotics case. The proceedings under sections 87/88, Cr.P.C.
Were also initiated against the accused Syed Akhtar Ali Shah and Syed Samar Ali Shah by the complainant. On completion of investigation, the complainant prepared supplementary challan and sent the same to the court.
4. On receiving of complaint (Ex.PA) on 29.10.2010, Abbas Ali MHC (PW-1) chalked out formal FIR (Ex.PA/1). On the same day, Inspector Ghulam Abbas (PW-4) handed over to him 29 parcels sealed and having stamp, 6 parcels pertaining to opium and 23 parcels of Charas. On 01.11.2010 Abbas Ali (PW-1) delivered 5 parcels of Opium and 21 parcels of Charas to Sepoy Ayet Ullah for onward transmission to the office of Chemical Examiner for analysis. Muhammad Rafiq, HC (PW-3) and Constable Muhammad Abbas (PW2) are the witnesses of entire recovery memos, prepared by the Investigating Officer (PW-4). On 01.11.2010 Sepoy Ayet Ullah (PW-5) deposited 21 sealed sample parcels of Charas each weighing 10 grams each and 5 sealed sample parcels of Opium weighing 10 grams each along with docket and road certificate as well as seals in the office of Chemical Examiner. The Investigating Officer (PW-4) recorded statements of the prosecution witnesses at the spot. He also recorded the statements of (PW-5) of Sepoy Ayet Ullah under section 161, Cr.P.C., regarding sending of sample parcel to the office of Chemical Examiner, Lahore.
5. Having found the accused guilty, the Investigating Officer prepared incomplete challan, while placing his name in Column No,3 of the same whereas accused Akhtar Ali Shah and Samar Ali Shah were shown as proclaimed offenders and sent the same to the court of competent jurisdiction.
6. The learned trial court formally charge sheeted the appellant on 07.10.2011, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case produced as many as five witnesses. Ghulam Abbas, Inspector/SHO (PW-4) is the complainant of the case who is also the Investigating Officer of the case while Muhammad Rafiq HC (PW-3) and Constable Muhammad Abbas (PW-2) are witnesses of recovery. Abbas Ali MHC (PW-1) deposed that on 29.10.2010 Inspector Ghulam Abbas sent a complaint Ex.PA through L/NK Munir Ahmed, on the basis of which he drafted formal FIR (Ex.PA/1). On the same day, Inspector Ghulam Abbas handed over to him 29 parcels sealed and having stamp, 6 parcels pertaining to opium and 23 parcels of Charas. On 01.11.2010 Abbas Ali (PW-1) delivered 5 parcels of Opium and 21 parcels of Charas to Sepoy Ayet Ullah for onward transmission to the office of Chemical Examiner for analysis.
7. On 11.5.2012, the learned Special Prosecutor, ANF closed the prosecution evidence after tendering the reports of Chemical Examiner (Ex. PN), (Ex. PO) and (Ex. PP).
8. The appellant was also examined under section 342, Cr.P.C., wherein he opted to lead defence evidence but not to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of allegations levelled against him and while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:- "In fact, the police party entered into the house of Akhtar Abbas and Samar Abbas and made indiscriminate firing injuring Adnan and Akhtar Abbas and abducting Akhtar Abbas whereupon a strong protest was lodged by the people of the area headed by me and the complainant party to save their skin got lodged this false case against me in order to strengthen the case under section 324, P.P.C. Got registered by Ghulam Abbas PW-4 at PS Karor Lal Esan. The private complaint against ANF staff is also pending in the court of Magistrate Section 30 Karor Lal Esan. Ghulam Abbas Inspector involved me falsely in this case and the other PWs being subordinate to the complainant/I.0, deposed against me and instead of apprehending Samar Abbas and Akhtar Abbas, I have been made a scapegoat. "
9. In defence, only statement of Haji Zafar, the appellant was recorded without oath by the learned trial court on 04.6.2012 which is re-produced as under:- "I place reliance on copy of FIR No,59 dated 29.10.2010, under sections 353, 324, 186, P.P.C., PS Karor, District Layyah (Ex. PM). I produce certified copy of report under section 173, Cr.P.C. In case FIR No, 590/2010 along with interim orders (6 leaves) as Ex.DA, certified copy of application under section 22-A, Cr.P.C. Titled Vamr Abbas v. DPO Layya along with order dated 24.01.2011 passed by learned Addl. Sessions Judge, Karor Lal Esan (4 leaves) as Ex.DB, attested copy of MLC of Faheem Khan as Ex.DC, attested copy of application under section 22-A, Cr.P.C. Titled as 'Rehmat Ullah v. DPO Bhakkar and others' along with order dated 24.11.2010 passed by worthy Sessions Judge, Bhakkar (6 pages) as Ex. DD, attested copy of report under section 173, Cr.P.C. In case FIR No,92 dated 04.03.2011, under sections 452, 380, 365, 324, 148, 149, P.P.C., PS Karor Lal Esan, District Layyah along with interim orders (11 pages) as Ex.DE, photo copy of MLC of Adnan Abbas as Mark-A and closed my defence evidence."
10. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
11. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Law Officer and perused the recor4.
12. The prosecution evidence comes up with material contradiction which, in fact, creates strong doubt in the veracity of the case of the I prosecution. According to Muhammad Rafiq, HC (PW-3) the accused Haji Zafar was holding a small bag in his right hand whereas Ghulam Abba,s, Inspector/SHO (PW-4), the complainant as well as Investigating Officer deposed that "the accused Hall Zafar was having a small bag on the right handle of his motorcycle. " Things do not stop here as Ghulam Abbas, Inspector (PW-4) admitted during cross-examination that he is complainant of the case in hand as well as case FIR No,590/2010 Police Station Karor, District Layyah. He (PW-4) admitted that in FIR No,590/2010 it is mentioned that a third person riding on second motorcycle was hanging a shopper on the right handle of the motorcycle. Ghulam Abbas (PW-4) also admitted that he mentioned in the FIR No,590 that Haji Zafar was apprehended along with shopper whereas in the instant case he mentioned that Haji Zafar was apprehended along with bag (Toray) . Both prosecution witnesses i.e PW-3 and PW-4 were allegedly present at the place of occurrence together and they have come up with different version which makes the prosecution version highly doubtful. Muhammad Rafiq, HC (PW-3) deposed during cross-examination that the .Digital scale was already with the Inspector Ghulam Abbas; the colour of bag of Haji Zafar accused was white; Ghulam Abbas Inspector took the bag and plastic paper into possession through recovery memo; the packets. Recovered from the bag of Zafar accused were in the shape of rectangular shape; the colour of charas was blackish. Contrary to the deposition of Muhammad Rafiq H.0 (PW-3), the complainant-Ghulam Abbas Inspector/SHO (PW-4) deposed that; the scale and weights were already with me in my kit; I cannot tell the colour of the said bag; I did not make memo. Of the bag and plastic for packing; the colour of recovered charas was dark-brown.
Contrary to the deposition of PW-3 and PW-4, the report of Chemical Examiner (Ex.PN) shows that colour of Charas was greenish. This seems to be very damaging aspect of the case. As already stated above, colour of alleged contrabands recovered from possession of the appellant was in contradiction with Chemical Examiner report. Such discrepancies were found to be material as the raiding party have come up with different version and it is not clear what was the colour of seized contraband.
13. We have also carefully perused the report of Chemical Examiner (Exh.PN) which reflects that a packet from the A.N.F, Police Station A.N.F, Wandi Ghund Wali, Mianwali alleged to have been dispatched by him on the 1st of November 2010 referred to in his office vide letter No,ANF/MWI/2010/451 dated 01.11.10 and received in the office on 01.11.2010; the packets consisted of eleven sealed packets; seal bearing the impression of the invoice hereunto attached and received with I-each seals intact; packets said to contain charas and all the above packets contain Charas.
From the above contents of the report (Ex.PN) it reveals that referring letter was issued on 01.11.2010 whereas Sepoy Ayet Ullah (PW-5) who took the sample to the Chemical Examiner Office deposed that on 01.11.2010, Abbas Ali MHC (PW-1) handed over to him 21 sealed sample parcels of Charas, weighing 10 grams each and 5 sealed sample parcels of Opium weighing 10 grams each along with docket and road certificate as well as seals which he deposited in the office of the Chemical Examiner. He (PW-5) also deposed in cross-examination that he (PW-5) received parcels at 05.00 a.m. Contrary to the above deposition Abbas Ali (PW-1) had not stated that he (PW-1) handed over docket and road certificate as well seals to Sepoy Ayet Ullah for onward transmission to the office of Chemical Examiner for analysis. The report of Chemical Examiner (Ex.PE) reveals that seal bearing the impression of the invoice hereunto attached and received. Abbas Ali (PW-1) also deposed that he handed over sample parcels to Ayet Ullah at 05:00 a.m. And Ghulam Abbas was Incharge of Police Statidn on 29.10.2010. The contradiction in the evidence of both above witnesses i.e, PW-1 and PW-5 and report (Ex.PN) were of such magnitude which affected the trial. On the perusal of the above report (Ex.PN) the same cannot be said to be full and complete, disclosing the full protocols of the test applied, except the bare opinion that the packets contain Charas. Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 provides for report of result of test or analysis, which is reproduced as under:- "6. Report of result of test or analysis.
After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in form-H. "
14. There is nothing on the basis of which we can assess the truthfulness of the report (Ex.PN).
Hon'ble Supreme Court of Pakistan in the case of Ikram Ullah and others v. The State (2015 SCM R 1002) held that: "A bare look at the report submitted by the Chemical Examiner in the present case shows that the entire page which was to refer to the relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom. This surely was a complete failure of compliance of the relevant rule and such failure reacted against reliability of the report produced by the prosecution before the learned trial court. - Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of the recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form" and, thus, if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a "conclusive" proof of recovery of narcotic substance from an accused person. "
15. The report of the Chemical Examiner containing his opinion must, therefore, disclose the procedure on which his opinion is based and the reason in support of the opinion. The opinion render by the Chemical Examiner is no evidence unless the same is supported by the reasons. The Chemical Examiner report (Exh.PN) except an opinion that sample contains "Charas" there is no other data as prescribed in law. Since the patent infirmity has been noticed in the report (Eh.PN) which is found to be fatal to the prosecution case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant. Accordingly the appellant deserves to be given benefit of doubt and findings in this regard to be set aside and the same is set aside.
16. As a consequence whereof, the instant Criminal Appeal No,1410 of 2012 is accepted and the appellant (Haji Zafar Abbas son of Ghulam Ali) is ordered to be acquitted of the charge in case FIR No, 18 of 2010 dated 29.10.2010, offence under sections 9(c), 15, 17 of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF Mianwali. Haji Zafar Abbas, the appellant is in custody, he be released forthwith, if not required in any other case.
17. As far notice for enhancement issued by this court in Crl. Misc. No,1 of 2013 passed in main Crl.
Appeal No,I410 of 2010 on 06.03.2014 is concerned, for the above stated- reasons, the same has been withdrawn and Criminal Revision No,213/2014 is accordingly disposed of.