AALIA NEELUM, J.---Appellant-Khalid Mehmood son of Abdul Sattar, Caste Arain, resident of Chak No.29, Bhayanwala Khurd Muridke, Tehsil Ferozewala, District Sheikhupura, was involved in case FIR No.38 of 2011, dated 27.07.2011, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore and was tried by the learned Judge, Special Court (CNS), Lahore. The learned trial court seized with the matter in terms of judgment dated 05.09.2013, convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for life with the direction to pay Rs.8,00,000/- as fine and in case of default in payment thereof, to further undergo simple imprisonment for 02-years. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant. Feeling aggrieved, the appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the FIR (Ex.PA) lodged on the complaint (Ex.PD) of Azhar Hamesh, S.I.
(PW-3) is that on 27.07.2011, the high-ups received information that the appellant was involved in National Gang of narcotics smuggling and that day on his motorcycle Honda CD-70 bearing No.880/LZU having red colour would come to his village situated at Chak No.29 Bhayanwala Khurd Muridke. On this information, the high-ups of ANF constituted a raiding party consisting upon he (PW-3) along with Qadeer Ahmad Baig, Asif (PW-2), Azhar, Hassan Raza, Umar Draz (given up PW), Munawar Constables, Abdul Majid Tahir HC, Munir, Khalid Shafqat, Gulzar, Sohail Sepoys, Sajid, Tariq, Shahid Drivers and Informer, under the supervision of Mubashar Deputy Director Operation Manager, while on official vehicle, reached the aforementioned place, started secret surveillance and at about 01:20 p.m, one person was coming while boarding on motorcycle Honda CD-70 having red colour towards Chak No.29 Bhayanwala. Khurd, who was having yellow colour Tora on the Tanki of his motorcycle. On the signal of the Informer, the appellant wag apprehended and during search of Tora 19-packets of Charas (P-1) were recovered. On weight, each packet was found 1200-grams, total weighing 22.800 kilograms. Out of the recovered substance 10/10 grams were separated from each packet for chemical analysis. The recovered Charas (P-1) and motorcycle 8807/LZU were taken into possession vide recovery Memo (Ex.PB). The complainant (PW-3) drafted complaint (Ex.PD) and sent the same through Munir Sepoy to the Police Station for registration of the formal FIR (Ex.PA).
3. Thereafter, the investigation was entrusted to Azhar Hamesh, S.I (PW-3), who being Investigating Officer of the case prepared the site plan (Ex.PE) of the place of recovery, recorded the statements of the prosecution witnesses under section 161, Cr.P.C and also sent the appellant to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty, the Investigating Officer (PW-3) prepared report under section 173, Cr.P.C., while placing his name in Column No.3 of the challan and sent the same to the court of competent jurisdiction.
4. The learned trial court formally charge sheeted the appellant on 22.09.2011, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as four witnesses.
Muhammad Shafiq, ASI (PW-1) drafted formal FIR (Ex.PA) without any addition or deletion, Muhammad Asif C(PW-2) is the recovery witness, Azhar Hamesh, S.I (PW-3) is the complainant as well as I.O of the case and Asif Iqbal C (PW-4) deposited 19 sealed parcels in the Office of Chemical Examiner, Lahore.
5. On 21.12.2012, the learned Special Prosecutor for ANF gave up PW-Umar Draz being unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PG).
6.The appellant was also examined under section 342, Cr.P.C, wherein he did not opt to appear as his own witness in terms of section 340(2), Cr.P.C but opted to produce defence evidence and while replying to a particular question that why PWs had deposed against him, the appellant made the following deposition:- "The alleged case has been registered against me with mala fide intention by the I.O. In fact, neither I was arrested from the spot nor any recovery of narcotic was effected from me. In fact, there is enmity between one Rana Munawar Ali and Haji Muhammad Ashraf resident of of the same village who has history of criminal cases against each other. Haji Muhammad Ashraf was arrested in the year 2011, in case FIR No.234/2011 under section 9-C and in fact, Haji Muhammad Ashraf and I.O have managed this case to implicate Rana Munawar Ali in the narcotic case and when I.O/Azhar Hamesh has failed to plant narcotics at the house of Rana Munawar Ali resident of Chaki No.29, then I.O has made me scapegoat and implicated me in the said case. I am also the complainant of the case FIR No.406/2009 at P.S Muridke, registered against Rana Munawar Ali. Regarding my innocence, I have moved application to the DG ANF, for independent inquiry but nothing has been done in this regard. As narrated above I.O is the architect of this case who prepared fabricated and false evidence against me, that is why he has not arrested any connected accused person nor he collected any data from the mobile company which implicated me in this case. I am innocent and prayed for justice and acquit me in this case."
7. In defence evidence, Ghulam Sarwar appeared as DW-1 and in documentary evidence the appellant has produced attested copy of FIR No.406/09 (Ex.DA), attested copy of FIR No.240 of PS Sadar Muridke (Ex.DB), attested copy of registration book of motorcycle (original seen and returned) (Ex.DC), copy of application dated 12.09.2011 Mark-B and closed the defence evidence.
8. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned Special Prosecutor for ANF, 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.
9. The learned counsel for the appellant has contended that the occurrence as narrated in the FIR had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellant and if any that is fake and fictitious; that the appellant has been involved in false case by the ANF police just to show their efficiency. Learned counsel for the appellant has further submitted that the prosecution has failed to prove the safe custody of the narcotics and lastly prayed that he may be acquitted from the charge being falsely implicated in this case.
10. On the other hand, learned Special Prosecutor for ANF has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellant and that the prosecution has proved its case by producing four witnesses beyond any shadow of doubt.
11. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Special Prosecutor for ANF and have minutely perused the record available on the file.
12. There is a serious defect in the report of the Chemical Analyst (Exh.PG) and it is that "report Form No and registered No" and "net weight and gross weight of the samples" were not mentioned therein. Besides, full protocols of the test are not supplied. The report is also not in the prescribed form and not fully answered. The report contains only the result of the test or analysis. When it does not state the protocols of the test are applied, it cannot be said to be a report "in the prescribed form." The omission to state either the result of the test or the protocols of the test applied is a substantial omission which goes to the root of the B existence of the report "with prescribed form". If the protocols of the test are not stated in the report, the report must be held to be not a report "in the prescribed form" within the meaning of Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001 and cannot be treated as evidence of the facts stated therein.
13. There is another aspect of the case, to prove the nature of substance, a chemical analysis report (Exh.PG) was relied upon by the prosecution. We are not in agreement with the. learned counsel for the Anti-Narcotic Force that in the instant case expert expressed his opinion after conducting the required tests and same were mentioned on the back of the chemical examiner report (Exh.PG). For the reasons that the statute insists .on mentioning of the test applied for indication of the kind of contraband substance which entire stuff is analyzed.
On perusal of the chemical examiner report (Exh.PG) it reveals that Duquenois test was applied and expert expressed his opinion on its basis that the sample is of charas. Whereas, Duquenois levine test is only used for detection of "drug" presence in sample but not nature or kind of "drug". For charas detection i.e. a resin of cannabis plant (cannabis saliva or canabis indica), the chemical report (Exh.PG) showing Tetrahydrocannabinol (Charas) positive is required. Only Duquenois positive test does not substantiate charas confirmation. Vide report (Exh.PG) Chemical Examiner opined that on analyzing the sample, the same gave positive test for Duquenois which only shows that sample contains "drug" but not nature or kind of "drug". Therefore, in a nut- shell in a case of recovery of charas, presence of Tetrahydrocannabinol (THC) in a sample reveals that the same contains charas. Since the patent infirmity has been noticed in the report (Exh.PG) 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 are required to be set aside and the same are set aside.
14. As a consequence whereof, the instant Criminal Appeal No.1023 of 2013 is accepted and the appellant- Khalid Mahmood is ordered to be acquitted of the charge in case FIR No.38 of 2011, dated 27.07.2011, offence under section 9-C of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore.
Khalid Mehmood, the appellant is in custody, he be released forthwith, if not required in any other case.