' ABDULLAH BALOCH, J .---This judgment disposes of Criminal Appeal No,269 of 2015 filed by the appellant Mohsin son of Lal Hussain, against the judgment, dated 11th August 2015 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge Control of Narcotic Substances, Balochistan Quetta (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life with fine of Rs,200,000/- (Rupees two lacs) or in default thereof to further suffer one (01) year S.I., with the benefit of section 382-B, Cr.P.C.
2. Facts of the case are that on 12th February 2014 the complainant Sobedar Sharif Ahmed, lodged FIR No,02/2014 at Police Station ANF Turbat under section 9 (c), 1997, stating therein that the superior officer of ANF recorded spy information with regard to transportation of huge quantity of heroin from Turbat to Jewani, on this information he along with other officials reached Gwadar Road near D-Chowk, where they erected Naka, at about 06.00 p.m. a Toyota Surf was sighted from Turbat, which was intercepted by them, the person sitting on driving seat was alighted from vehicle, who on query disclosed his name as Mohsin, during preliminary investigation, the accused made disclosure that he along with Haji Hamid and Khalil concealed heroin in vehicle in order to smuggle it to foreign country, thereafter, the search of the vehicle was resulted into recovery of five sacks containing. Heroin, on weighing it became 87-Kgs, out of which 200-grams heroin was separated from each sack for chemical analysis and sealed in parcel Nos.1 to 5, while the remaining heroin was sealed in parcel Nos.6 to 10.
3. In pursuance of above FIR, investigation was entrusted to PW-3 Muhammad Ehsan, SI/I0, who during investigation took into possession the recovered contraband; arrested the appellant and subjected him to investigation; recorded the 'statements of witnesses under section 161 Cr.P.C.; sent the samples for analysis and on receipt of report in affirmative submitted the challan in the trial Court.
4. At the trial, the prosecution produced three witnesses. The appellant was examined under section 342,. Cr.P.C. However, the appellant neither recorded his statement on oath under Section 340(2), Cr.P.C. Nor produced any witness in his defence. On conclusion of trial and hearing the argumets, the trial Court awarded conviction to the appellant as mentioned above, whereafter the instant appeal has been filed.
7. Heard the learned counsel and perused the record. According to the case of prosecution, the NF authorities on- receipt of spy information with regard to transportation of huge quantity of contraband, erected a Naka at Gwadar Road near D-Chowk and during checking of vehicles, the Toyota Surf vehicle being plied by the appellant, while the acquitted accused Abdul Hamid as well as absconding accused Khalil Ahmed were also accompanying him, was searched, which resulted into recovery of five sacks, four sacks containing 20/20 Kgs, while one sack A containing 7-Kgs Heroin total 87-Kgs, hence from each sack 200-grams Heroin were separated for chemical analysis and sealed in parcel Nos.1 . To 5 and were sent to FSL. The FSL authorities separately analyzed each five parcels and issued five analysis reports (Ex.P/3-D to Ex.P/3-H). All the five analysis reports are on similar pattern. However, for facilitation the analysis report Ex.P/3-D is reproduced herein below:- "OFFICE OF THE FEDERAL GOVERNMENT ANALYST.
BALOCHSITAN QUETTA. "
GPA. (H)3-ANF No,5929/- Dated 20.02.2014 Phone No,081-9213243 ' Subject: "REPORT ON THE ANALYSIS OF THE SEALED SAMPLE OF SUSPECTED MATERIAL (200-Grams Parcel No,01) FORWARDED BY POLICE STATION ANTI NARCOTIC FORCE TURBAT. "
' A duly sealed one parcel received by hand official of the ANF on 14-02-2014. Vide letter No,02/2014/PS/ ANF/TBT/100/2014 of PS ANF TURBAT in the case FIR No,02/2014 dated 1202-2014, offence under section 9-C, 15 CNSA/1997 PS ANF Turbat, State v. Mohsin Son of Lal Hussain and Others, containing suspected material 200-Grams.
"CHEMICAL EXAMINATION. "
'Chemical examination in respect of the above suspected material was carried out by applying Regent Test, during which 30-Grams suspected material from sample was consumed in the examination process.
OPINION:- "
' Chemical analysis of suspected material was conducted which finally received that all said suspected material contained "Heroin (Crystal).
30-Grams Heroin (Crystal). Is consumed during the examination process of case property, the remaining amount of 170-Grams Heroin (Crystal) is returned back. Sd/- (ABDUL MUSAWIR)
Federal Government Analyst. Balochistan, Quetta "
' It is necessary to mention here that Section 36 of the Act and the Rules 5 and 6 of the Narcotic Substances (Government Analysts) Rules, 2001 (hereinafter referred as, the Rules") provides two prescribed forms, i,e, Form-I and Form-H; the Form-II, prescribes the manner and procedure for certification of test or analysis of narcotic drug or psychotropic substance. For facilitation, Form-II is reproduced herein under:-- FORM II (See rule 6)
CERTIFICATION OF TEST OR ANALYSIS BY FEDERAL NARCOTIC TESTIM LABORATORY GOVERNMENT ANALYST.
1. Certified that the sample bearing on ................................ Purporting to be sample of .............................
Received on ............................. With memorandum No ........................................................................................ analyzed and the result of each test/analysis is stated below;
2. The condition of the seal on the packet on receipt was as follows; Satisfactory/Unsatisfactory/None.
3. In the opinion of the undersigned the sample is .................................. as defined in the Section-2 of the CNS Act, 1997.
4. DETAILS OF THE RESULTS OF TESTS/ANALYSIS: ' Sample No...................................
' Gross Wt: ............................................... Net Wt.....................................
' FIR 'No Dated...............................
' Accused...........................................................................
' Physical ' Examination....................................................................
' CONCLUSION' ...............................................................
' NOTE: In case of mixture the %age of each Alkaloids. Opium derivatives, Opiates. Cannabis, Drugs of abuse and the synthetic compounds are as follows:-- ' The sample identified as and contains % Signature of Government Analyst Federal Narcotics Testing Laboratory Signature of any other authorized Office of Laboratory."
8. The minute perusal of both the Chemical Examiner Report Ex.P/3-D and Form-II would establish the fact that the report Ex . P/3-D bears only one signature of the Federal Government Analyst, whereas Section 36 of the Act and the Rules 5 and 6 of the Rules of 2001 prescribes Form-II, which .Stipulates the signatures of two authorized officers of the Laboratory. The report is silent about the necessary protocols, the test applied and the result. Neither any protocol mentioned in the report nor any test was referred to on the basis whereof the chemical expert has concluded that the samples sent for examination contained Heroin. Similarly, the report does not contain the signatures of two authorized officers as well as the name of police officer, who had taken the contraband to the office of the Chemical examiner and admittedly no such police officer had been produced in the. Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. Furthermore, the law has provided scope for person throwing challenge to the expert's report to rebut the same and in this regard reference has been made to subsection (2) of Section 36 of the Act.
9. According to settled principles of law the burden on prosecution to prove its case cannot be shifted to the accused in artificial manner when the law contemplates and provides a procedure for doing any act. When such procedure is not complied with, it amounts to violate the law. The signatures of two authorized officers on the chemical analyst report are mandatory under the Rules, 2001 and it is also necessary that the report shall contain the necessary protocols and procedure/tests applied for in reaching the conclusion that the samples received by the laboratory are narcotic drug or psychotropic substance. The report which is suffering from legal flaws cannot be considered as conclusive proof and would not be termed or considered as admissible in evidence. Thus, the non-conclusive and non-speaking laboratory report, which was not compiled according to mandate of law and rules framed there under, cannot be relied for sustaining the conviction. According to Rules 5 and 6 of the Rules, a complete mechanism has to be adopted by the chemical examiner on receiving the samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results.
' Section 36 of the Act requires a Government Analyst to whom a sample of the recovered substance is sent for examination to deliver the person submitting the sample a signed report in quadruplicate in the prescribed Form II as provided under Rule 6 of the Rules and if the report prepared by him has not been prepared in the prescribed manner, then it may not qualify to be a report in the context of section 36 of the Act so as to be treated a "conclusive proof" of recovered narcotic substance from an accused person. Reliance in this regard is placed on the case of Ikramullah v. State 2015 SCM R 1002. Relevant relevant portion is reproduced herein below:-- ".... We have particularly noticed that the report submitted by the Chemical Examiner (Exhibit-P. W 2/5) completely failed. To mention the basis upon which the Chemical Examiner had come to a conclusion that the samples sent to him for examination contained charas. According to Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results but in the case in hand we note that no protocl whatsoever was mentioned in the report submitted by the Chemical Examiner and no test was referred to on the basis of which the Chemical Examiner had concluded that the samples sent to him for examination contained charas. In the context of the present case Rule 6 is of paramount importance and the same is reproduced below: "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 suplied forthwith to the sender as specified in Form-II."
' 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.
5. In the case in hand not only the report submitted by the chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated, samples to the office of the Chemical Examiner had also not been established by the prosecution.
It is not disputed that the Investigating Officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the Samples to the office Of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had- safely been transmitted to the office of the Chemical Examiner without the same- being tampered with or replaced while in transit."
12. Thus, for the above reasons, it would be unsafe to rely upon the analysis report Ex.P/3-D and to base the conviction of the appellant; hence no implicit reliance could be placed upon the same, but the trial Court while awarding conviction to the appellant has absolutely failed to observe and consider all these material aspects of the case, which resulted into miscarriage of justice.
17. Nothing has come on record to, show that the appellant was the owner of the vehicle. The Investigating Officer in his examination-in-chief has mentioned that he has approached the Excise and Taxation Department at Turbat for verification of the alleged vehicle, but no reply has been received from quarter concerned. The Investigating Officer has failed to place on record any letter suggesting that actually he had made investigation to prove the ownership of the vehicle. Mere words of the Investigating Officer with regard to making quarries regarding ownership of the vehicle are not enough to prove that the appellant was the owner or in possession of the vehicle at the time when recovery was effected from the said vehicle. Even otherwise, nothing has brought on record that the I.O. Has approached the Excise Directorate at Quetta or CPLC at Karachi, from where the verification of the vehicle could easily have been made. It seems that no investigation in such behalf was carried out, by the I.O.
19. In view of the above circumstances, the prosecution has failed to establish that after the alleged recovery, the substance so recovered was either kept in safe custody or that the samples drawn from the substance were safely transmitted to the office of FSL Quetta without being tampered with or replaced while in transit.
' For the above reasons, the appeal is accepted. The impugned judgment dated 1 1 th August, 2015 passed by learned Special Judge Control of Narcotics Substance, Balochistan Quetta is set aside and the appellant Mohsin son of Lal Hussain, is acquitted of the charge under section 9(c) of CNS Act, 1997, in FIR No,2/2014 at Police Station ANF Turbat. The appellant being in custody is ordered to be released forthwith, if not required in any other case.