' AALIA NEELUM, J.---This appeal has been preferred by the accused-appellant Nasir Khan son of Issa Khan against the judgment rendered by the learned Special Judge, C.N.S.A., Lahore dated 28.6.2008, whereby he was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to six years' Rigorous Imprisonment with a fine of Rs,3,00,000/- and in default thereof, to further undergo S.I., for three months with benefit of section 382-B of Cr.P.C.
2. The prosecution story as alleged in the FIR, (Exh.PA/1) lodged on the complaint (Exh.PA) of Qadeer Ahmad Baig, Inspector/1.0., (PW-5) is that the appellant was arrested by him and at the time of arrest, the appellant was holding white shopper bag and during his search, Heroin weighing three kilograms containing three packets was recovered from shopper bag which was taken into possession by him (PW-5) through recovery memo Exh.PB, out of which, 10 grams from each of three packets of Heroin was separated for chemical analysis and made it into three sealed parcels separately.
3. After investigation, case was challaned to the court and accused-appellant was charge- sheeted under section 9(c) of the Control of Narcotic Substances Act, 1997. The prosecution examined as many as five witnesses. Qadeer Ahmad Baig, Inspector, ANF, (PW-5) is the complainant as well as Investigating Officer whereas Imdad Hussain HC, ANF (PW-4) and Muhammad Yaseen, HC, ANF are the witnesses of the recovery. On presentation of complaint, Muhammad Yaseen, A.S.I., (PW-1) had chalked out formal FIR (Ex.PA/1) without addition or omission.
' Muhammad Saleem, Constable (P.W-2) had deposited the sealed parcel in the office of Chemical Examiner, Lahore.
4. On 28.5.2008, in addition to oral evidence, the prosecution also tendered Chemical Examiner report (Exh.PE) in the evidence and closed the prosecution evidence by the learned Special Prosecutor.
5. The accused was examined under section 342, Cr.P.C. He denied all the allegations and recovery of narcotics. The appellant did not opt to make statement on oath as envisaged under section 340(2), Cr.P.C.
6. On conclusion of trial, the learned trial court seized with the matter and convicted and sentenced the appellant as stated above.
7. Heard, learned counsel for the appellant as well as the learned Special Prosecutor for ANF and perused the record of the case.
8. In the evidence of the prosecution, it is not established that how the raiding party came to know about the accused. According to the FIR (Ex.PA/1), on 05.6.2006 high-ups of. ANF authorities had received a secret information that the accused-appellant was involved in the illegal business of drugs and today at about 3.00 p.m. Will bring narcotics at Daewoo Bus Stand, Kalma Chowk, Lahore for supply of narcotics to his customer, on which raiding party was constituted. On the information given by the informer about appellant, they apprehended him, yet according to prosecution evidence source of identification of the accused is totally missing. Hence, the identity of the appellant, becomes suspect in view of contradiction between Ex.PA/1 and prosecution evidence.
Secondly, according to Muhammad Saleem, constable (PW-2) three samples of Heroin along with English docket and Road Certificate were deposited in the office of Chemical Examiner.
Prosecution, can succeed only if it is able to prove that all three samples drawn from three packets of Heroin said to have been possessed by the appellant, on analysis, were found to contain heroin.
On perusal of Chemical Examiner Report (Exh.PE) it reveals that three parcels were received in the office of Chemical Examiner but at the back of the report of Chemical Examiner, analysis of only one sample was mentioned therein. According to which a sample's gross weight was 20 grams of all. The admitted position is that three samples were deposited in the office of the Chemical Examiner but analysis report reveals that only one sample was analyzed by the Chemical Examiner. Muhammad Saleem, constable (PW-2) who had deposited the sealed parcels to the office of the Chemical Examiner deposed during cross-examination that "perhaps the parcels of another case were also handed over to me at the same time by the Moharrar. I do not remember if the said parcels were also of Heroin or not." The deposition of Muhammad Saleem, constable (PW-2) creates doubt about the sample analyzed. Therefore, unless the prosecution is able to show that the sample which was analyzed by the Chemical Examiner was the very same sample which was drawn from the contraband Heroin cannot be relied upon. Further, Qadeer Ahmad Baig, Inspector (PW-5) claims that he sealed the samples but neither he mentioned that what was the impression of the seal nor the invoice was exhibited during evidence as in para No,2 of the report of Chemical Examiner, it is mentioned that the three sealed packets were sealed with a seal bearing the impression of the invoice hereunto attach. For these reasons, we are of opinion that the prosecution has failed to prove that the sample fetched from the contraband was the one sent to the Chemical Examiner for -analysis. The report of Chemical Examiner (Ex.PE) could not be relied upon as .A material evidence against the appellant. Therefore, unless the prosecution is able to show that the sample which was analyzed by the Chemical Examiner was the same sample which was drawn from the contraband Heroin allegedly seized from the accused, no conviction can safely be recorded against the accused/appellant.
9. For these reasons stated above, this Criminal Appeal No,831 of 2008 is allowed and the judgment dated 28.6.2008 passed by the learned Special Judge C.N.S.A., in case FIR No,53 dated 05.6.2006, offence under section 9(c) of the Control of B Narcotic Substances Act, 1997 registered at Police Station ANF, Lahore is hereby set aside. The appellant is on bail by way of suspension of sentence, therefore, his bail bonds are discharged.