1. MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This Criminal Appeal is directed against the judgment dated 07.07.2015 ("impugned judgment") passed by the learned Special Judge CNS, Quetta ("trial court"), whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment for life with fine of Rs,200,000/- (two hundred thousand) in default of payment of fine to further undergo one year S.I. with benefit of section 382-B, Cr.P.C.
2. The brief frets of the case are that on 29-08-2014 at about 7:30 p.m. on murasla (Ex-P/1-A), sent by the complainant Nisar Ahmed, S.I., an FIR No,. 65 of 2014, was lodged with AMF Station, Quetta, alleging therein that on the aforesaid date in pursuance of information of special informer that a person namely Muhammad Yousaf son of Muhammad Shah in a white colour corolla car is going to smuggle a huge quantity of narcotics from Gulistan via Quetta to Sindh, on which the ANF officials set up the barricade near LRBT Hospital Quetta, when at about 4:00 p.m. a corolla car bearing registration No,JM-8001, coming from Quetta city towards Gahi Khan Chowk was intercepted, and the appellant sitting on the driving seat was apprehended and the car was searched resultantly two polythene bags containing raw charas (garda) from the rear seat and one polythene bag from the boot of the car was recovered. The recovered material on weighing was found 90 kilograms, out of which one kilogram from each bag was separated for chemical analysis and sealed in parcels Nos,1 to 3, while the remaining were sealed in parcels Nos,4 to 6 respectively. The recovered contrabands were taken into custody through recovery memo. in presence of witnesses and murasla was sent to Police Station ANF, Quetta for registration of the FIR.
3. On completion of investigation, the challan of the case was submitted before the trial court. The appellant did not plead guilty to the charge and claimed trial.
2. The prosecution in order to substantiate the charge produced as many as three witnesses. On conclusion of the trial the appellant was examined under Section 342 of the Criminal Procedure Code, 1898 ("Cr.P.C"), wherein he once again professed his innocence. He recorded his statement on oath under section 340(2), Cr.P.C, however he did not produce any witness in his defence. The trial court on conclusion of the trial convicted the appellant and sentenced him vide impugned judgment in the above terms.
3. 6(sic) Learned counsel for the appellant at the very out set referred the chemical expert reports Ex- P/3-C, Ex-P/3-D, Ex-P/3-E and propounded that subject to Section 36 of the Act, the Chemical Expert Report was required to be drawn in quadruplicate on the prescribed form and one copy thereof was to be forwarded to the authority as may be prescribed. He also referred subsection (2) of Section 36 of the Act, and contended that since any document purported to be a report signed by the government analyst shall be admissible in evidence without formal proof and such evidence shall, unless rebutted, be conclusive proof; but in the instant case neither the reports were issued on the prescribed form nor prepared in quadruplicate, therefore these reports were not admissible in evidence and conviction recorded on basis thereon is not sustainable. He besides pointing out certain contradictions in the testimony of prosecution witnesses, added that the whole proceedings were conducted in the Police Station after delay of 5 to 6 hours but no explanation was furnished for not conducting the proceedings at the spot; that the occurrence was alleged to have taken place on 29-08-2014 while the site map of the occurrence was prepared on 30-08- 2014, for which also no explanation was rendered. He propounded that under Chapter-V of the Police Rules, the Investigating Officer was bound to proceed to the place of occurrence and conduct the initial proceeding at the spot, but that too has not been done according to the directions of law and rules framed thereunder. The learned counsel while placing reliance on the judgment of the Hon'ble Supreme Court of Pakistan, passed in the case of Ikramullah and others v.
4. The State (2015 SCM R 1002), urged with vehemence that in view of the dictum laid down by the Hon'able Supreme Court of Pakistan conviction recorded against the appellant is not sustainable and he deserves to be acquitted of the charge after setting aside the impugned judgment.
5. 7.Conversely, Mr. Shaukat Ali Rakhshani, learned Special Prosecutor Anti Narcotic Force (ANF) strongly opposed the contention and added that the reports were neither disputed nor denied during the trial, therefore the same cannot be disputed in appeal. He stated that the prosecution has successfully discharge its onus of proof beyond any reasonable shadow of doubt. The burden to explain the possession whether actual or constructive was on accused to discharge but he has failed to meet his part of obligation, therefore subject to provision of Section 29 of the Act, it can safely be presumed that the accused had committed an offence under which he was charged, he therefore stopposed the appeal and urged for dismissal of the same.
6. 8.Heard. Record perused.
7. 9.Before dilating upon the contention raised by the learned counsel for the respective parties, it would be helpful to refer sections 35 and 36 of the Act, 1997 which stipulate as under:-- <i><u> "35. Government Analyst.</u> The Federal Government or a Provincial Government may, by notification ill the official Gazette: appoint such persons as it thinks fit, having the prescribed qualification, to be Federal Government Analysts or, as the case may be, Provincial Government Analysts, for such areas and in respect of such narcotics drugs, psychotropic substances or controlled substances as may be specified in the notification. <i>36.Reports of Government </u> Analysts.---(1) The Government Analyst to whom a sample of any narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive. </i> The afore-quoted provisions clearly stipulate that a Government Analyst to whom a contraband sample is sent for examination, shall deliver a report to the person submitting the sample on a signed report in quadruplicate in the prescribed form. The Control of Narcotic Substances Act is a special enactment which provides a special punishment for the offence committed under the Act.
8. Since the punishment provided under the Act are quite stringent and long, thus a special care is required while trying such an offence.
10. Section 77 of the Act empowers the Federal Government to make rules for carrying out the purpose of the Act, in pursuance whereof the Government of Pakistan has framed and notified the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("the Rules, 2001"). Rules 5 and 6 applicable in this case are reproduced herein below:-- <i><u> 5. Receipt in the laboratory and examination of sample with reference to Test Memorandum.---(1) </i></u> The sealed envelope, containing the samples, received in the laboratory should he carefully opened and given a distinct laboratory number.
9. (2)A separate register be maintained for narcotic drugs which may he further subdivided agency-wise and the laboratory numbers should from a continuous series for each year.
10. (3)All samples shall be passed to the analyst the same day, who will then keep the same in his safe custody and will examine and record its, or their, weight in the Test Memorandums with the markings on the packages envelopes and will ensure that he tested the relevant sample and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report. <i><u> 6. Report of result of test or analysis.</u> ---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-II. "</i> The Rules, 2001, further provides two prescribed forms, i.e. Form-I and Form-II, whereas Form-I has been prescribed subject to Rule-5, which provides the procedure and manner for sending the sample to the laboratory, and receipt in the laboratory and the examination of sample with reference to the test memorandum, while Form-II, prescribes the manner and procedure for certification of test or analysis of narcotic drug or psychotropic substance. Thus, the perusal of Forms-I&II would be helpful to understand the controversy, which speak as follow:-- {{TABLE TEXT}} FORM I (See Rule 5)
11. MEMORANDUM FOR THE FEDERAL NARCOTICS TESTING LABORATORY Serial No ...............
12. Form............
13. To the office incharge, Federal Narcotics Testing Laboratory ......................................................................
14. I send herewith, under the provision of section 35 of the CNS Act, 1997, sample(s) of a narcotic drug purporting to be for test or analysis and request that a report for the result of the test or analysis may be supplied at the earliest.
15. The other details are as under:-- Description of drug and the weight of the sample (s).
16. Date and place of seizure.............................
17. Date of drawal and dispatch of sample....
18. No, of samples and marking on each of them for identification.
19. Description and number of seals put on sample.
20. Date _________________________________________ Name and Signature of forwarding officer FORM II (See rule 6)
21. CERTIFICATION OF TEST OR ANALYSIS BY FEDERAL NARCOTIC TESTING LABORATORY GOVERNMENT ANALYST.
22. Certified that the sample bearing No ....................................... purporting to be sample of ............................... received on ................................ With memorandum No, ................................. dated ................................. from ..................................... has been tested/analyzed and the result of each test/analysis is stated below:-- The condition of the seal on the packet on receipt was as follows; Satisfactory/Unsatisfactory/None.
23. In the opinion of the undersigned the sample is ........................ ............................. as defined in the Section-2 of the CNS Act, 1997.
24. DETAILS OF THE RESULTS OF TESTS/ANALYSIS: Sample No ............................................................
25. Gross Wt. .............................................................
26. Net Wt................................. FIR No.......................................
27. Dated................................................................................
28. Accused................................................................................
29. Physical Examination...................................................................
30. CONCLUSION. ...................................................
31. 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.............contains % Signature of Government Analyst Federal Narcotics Testing Laboratory Signature of any other authorized officer of Laboratory. {{TABLE TEXT}}
11. We have noticed that the Form-I is not available on the record. The three reports Ex-P/3-C.
32. Ex-P/3-D and Ex-P/3-E were produced by the prosecution. According to the prosecution case three parcels of raw charas were alleged to have been recovered, weighing 90 kilograms and from each parcel one (01) kilogram was separated for chemical analysis, and three parcels were separately dispatched for chemical analysis, but the aforesaid three reports bear only one signature of the Federal Government Analyst, whereas the Rules, 2001 prescribes Form-II, which stipulates 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 has been 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 charas. Similarly, the report does not contain the signatures of two authorized officers.
33. For rendering the above view we are supported by the dictum laid down by the Hon' able Supreme Court of Pakistan in Ikramullah's case (2015 SCM R 1002) when the Hon' able Supreme Court while dealing with the identical proposition held as under:-- "According to the prosecution a sample was taken from each and every recovered packet for its onward transmission to the office of the Chemical Examiner and subsequently the Chemical Examiner had submitted a report maintaining that the samples so sent contained charas. 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 protocol 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 he signed in quadruplicate and supplied forthwith to the sender as specified in Form-II"
34. 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"
35. 12 Since the principle laid down by the Hon' able Supreme Court of Pakistan in Ameer Zaib's case (PLD 2012 SC 380) are also applicable in the instant case and the principle elucidated in the judgment supra that "the harsher the sentence, the stricter the proof" would be required for recording the conviction, keeping in view the rigorous discipline of the procedure and punishment provided under the Act, 1997. 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. Since the appeal is always considered as continuity of main trial, therefore we do not find ourselves in agreement with the learned Special Prosecutor that the report if not disputed and denied at the trial, cannot be challenged in appeal.
36. Here we may mention that supreme object of the Court is always to administer even handed justice to the parties before it and in order to achieve this object, the court neither should unreasonably lean in favour of a party nor deprive other of due right to offer defence.
13. Though according to Section 29 of the Act, 1997 after successfully discharging the initial burden of proof by the prosecution, the accused has to discharge the onus of his innocence through cogent and reliable evidence, but under the Criminal Justice System the burden cannot be shifted to the accused, when the prosecution has either failed to establish the recovery or to prove that the recovered articles are contraband item(s). Section 29 of the Act does not absolve the prosecution from the primary duty to prove its case beyond any reasonable doubt.
37. 14.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 thereunder, cannot be relied for sustaining the conviction.
38. Therefore, for this reason <i>"the failure of prosecution cannot be equated with failure of justice". </i> Thus in view of above discussion, we are of the considered view that prosecution has miserably failed to substantiate the charge against the convict/appellant, therefore the impugned judgment dated 07.07.2015, passed by the learned Special Judge CNS, Quetta, is set aside and the appellant is acquitted of the charge in case FIR No, 65 of 2014 of ANF Station, Quetta, under Section 9(c) of the Act, 1997. The appellant is ordered to be released forthwith if not required in any other case.