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 Narcotics 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 facts 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 SI, an FIR No. 65 of 2014, was lodged with ANF 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 $he boot of the car was recovered. The recovered material on weighing was found 90 kilograms, out of which one kilogram form each bag was separated for chemical- analysis and sealed in Parcel Nos. 1 to 3, while the remaining were scaled in Parcel 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.
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.
4. 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 sub-section (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 & others v.
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.
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 strongly opposed the appeal and urged for dismissal of the same.
8. Heard. Record perused.
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: "35. Government Analyst. The Federal Government or a Provincial Government may, by notification in 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 amid in respect of such narcotics drugs, psychotropic substances or controlled substances as may be specified in the notification.
36. Reports of Government 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.
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.
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 Narcotics Substances (Government Analysts) Rules, 2001 ("the Rules, 2001"). Rules 5 and 6 applicable in this case are reproduced herein below: "5. Receipt in the laboratory and examination of sample with reference to Test Memorandum. (1)
The sealed envelope, containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number.
(2) A separate register be maintained for narcotic drugs which may be further subdivided agency- wise and the laboratory numbers should form a continuous series for each year.
(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 lest 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.
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-II."
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: FORM I (See Rule 5) MEMORANDUM FOR THE FEDERAL NARCOTICS TESTING LABORATORY Serial No ......................
Form .........................
To the office incharge, Federal Narcotics Testing.
Laboratory.......................................
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.
The other details are as under:--
1. Description and drug and the weight of the sample(s)
2. Date and place of seizure ..................
3. Date of drawal and dispatch of sample.
4. No. of samples and marking on each of them for identification.
5. Description and number of seals put on sample.
Date _______ Name and Signature of forwarding officer FORM II (See Rule 6 CERTIFICATION OF TEST OR ANALYSIS BY FEDERAL NARCOTIC TESTING LABORATORY GOVERNMENT ANALYST
1. Certified that the sample bearing on........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;