TARIQ SALEEM SHEIKH, J.---The Appellants, Nasir Iqbal, Rashid and Danish Masih, were tried by the learned Additional Sessions Judge, Multan, in case FIR No.185/2013 dated 29-03-2013 registered at Police Station Seetal Mari, Multan, and vide judgment dated 13-08-2015 they were convicted under section 9(c) or the Control of Narcotic Substances Act, 1997 (the "CNSA "), and sentenced to imprisonment for life with fine of Rs.100,000/- and in default thereof to undergo simple imprisonment for a further period of one year each. Benefit of section 382-B, Cr.P.C. was, however , extended to them.
2. As per complaint Exh.PE submitted by Farrukh Khalil, Inspector Customs (PW-2) to the SHO, Police Station Seetal Mari, Multan, brief facts of the case are that on 09-04-201 1 the Collector Customs, Multan, received a secret information that Danish Masih and two others were transporting huge quantity of narcotics from Peshawar to Karachi via Lahore in Car No.LWR-5445 and they would pass Multan the same day. The Collector constituted a raiding party inter alia consisting of Haq Nawaz/Inspector (PW-1), Shaukat Ali/Driver (PW-3) and Saifullah Shah/Sepoy (PW-5) which set up a picket at Vehari Chowk in the morning. At about 11:00 a.m. the suspect car came that way with three persons on board. It was stopped and the travelers identified themselves as Danish Masih, Nasir Iqbal and Rashid Masih (the Appellants). Danish Masih was on the driving seat and he was asked to show the papers of the car which he did. Meanwhile, the vehicle was searched and packets of charas and opium and a pistol were recovered from the dickey and secret cavities of its seats. Haq Nawaz/ Inspector arrested the Appellants and took them to the Customs House 243 kilograms while opium weighed 11 kilograms. After that Haq Nawaz/Inspector issued notice to the Appellants under section 171 of the Customs Act, 1969 (Exh.P A), and prepared six sealed sample parcels of 10 grams each of charas and four sealed sample parcels of 10 grams each of opium for chemical analysis. Then he took into his possession all these parcels, the remaining bulk of the contraband and the car into his possession vide Recovery Memo Exh.PF . Durin g personal search CNIC, cash amount of Rs.26,000/- and a mobile phone were recovered from Appellant Rashid Masih. On the other hand, cash amounting to Rs.42,000/-, CNIC, a mobile phone, and a key of auto rickshaw were recovered from Appellant Danish Masih. A sum of Rs.47 000/- in cash, CNIC, two rings, a mobile phone and a wrist watch were recovered from Appellant Nasir Iqbal which Haq Nawaz/Inspector took into possession vide Recovery Memo Exh.PB. The contraband and all the other articles recovered from the Appellants as mentioned above were put in an iron box (jisti paiti) and deposited in the customs warehouse. In pursuance of the said complaint, case FIR No.1/201 1 dated 09.04-201 1 was registered for offences under sections 2(5), 3(1), 156(1), 1571 1), 178/16 of the Customs Act, 1969.
Later , section 9(c) of the CNSA and section 13 of the Punjab Arms Ordinance, 1965, were added. The Special Judge Customs, who was hearing the case, vide order dated 22-03-2013, directed the Customs Department to transfer this case to the ordinary police station for further proceedings under the CNSA. In compliance with the said order Farrukh Khalil/Inspector (PW-2) handed over the iron box containing narcotics and other articles to Muhammad Nawaz/SI (PW-6) who sent it to the police station along with relevant papers through Muhammad Ajmal 1750/C on the basis of which Irfan Muhammad 1716/HC (PW-7) registered FIR No.185/2013 (Exh.PE/1).
Muhammad Nawaz/SI (PW-6) investigat ed the case and found that the Appella nt had committed the offence.
Report under section 173, Cr .P.C. was submitted accordingly .
3. On 18-06-2013, the learned Additional Sessions Judge indicated the Appellants who pleaded not guilty and claimed trial. In order to prove its case the prosecution produced seven witnesses, namely , Haq Nawaz/Inspector (PW-1), Farrukh Khalil/Inspector (PW-2), Shaukat Ali/Driver (PW-3), Zahid Iqbal 1286/HC (PW-4), Saifullah Shah/Guard (PW-5), Muhammad Nawaz/SI (PW-6) and Muhammad Irfan 1716/HC (PW-7). In documentary evidence, the prosecution adduced reports of the Chemical Examiner Exh.PJ and Exh.PK.
4. After the close of prosecution evidence the learned trial Court recorded the statements of the Appellants under section 342, Cr.P.C. and confronted them with all the incriminating material that was brought against them during the trial. They refuted it and said that they were transporting electronic goods. The customs officials stopped them for checking, seized and misappropriated the merchandise and then booked them in a fake case. The Appellants neither opted to make statements on oath under section 340(2), Cr .P.C. nor examined any witness in their defence.
5. On the conclusion of the trial, vide impugned judgment dated 13-08-2015, the learned trial Court convicted and sentenced the Appellants as mentioned hereinabove.
6. The learned counsel for the Appellants contended that the prosecution had miserably failed to prove the charge against the Appellants. Contraband charas and opium were not recovered from them. The prosecution evidence lacked credibility as it was riddled with material contradictions. Even otherwise , all the witnesses were police personnel who could not be relied upon without independent corroboration which was not available. Lastly , the reports of the Chemical Examiner Exh.PJ and Exh.PK could not be used against the Appellants because the prosecution had failed to prove safe custody of the case property and safe transmission of the samples to the laboratory . Exh.PJ and Exh.PK were photocopies which were inadmissible. He prayed that this appeal be accepted and the Appellants may be acquitted of the charge.
7. On the other hand, the learned Deputy Prosecutor General opposed this appeal and controverted the above contentions. He argued that the Appellan ts were caught red-handed with 234 kilograms charas and 11 kilograms opium which was proved by Haq Nawaz/Inspector (PW-1), Shaukat Ali/Driver (PW-3) and Saifullah Shah (PW-5) who were corroborated by the Chemic al Examiner's Reports Exh.PJ and Exh.PK. He maintained that the prosecution evidence was coherent and the Appellants could not create any dent in it. He prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. The prosecution case is that on 09-04-201 1 at about 11:00 a.m. a team of the Customs Anti-Smuggling Staff headed by Haq Nawaz/Inspector (PW-1) apprehended the Appellants from Vehari Chowk, Multan, and recovered 234 kilograms charas and 11 kilograms opium from them. Haq Nawaz/Inspector (PW-1) and two members of his team, namely , Shaukat Ali/Driver (PW-3) and Saifullah Shah (PW-5) testified about the factum of recovery . They deposed in line with complaint Exh.PE. We have, however , noted that the prosecution evidence is conspicuously silent about the total number of packets that were recovered. Haq Nawaz/Inspector (PW -1) also conceded: "It is correct that I have not given any description of the charas .
Volunteered said that it was in the shape of packets. The details of the charas etc. was not given in examination in chief as well as statement under section 161 of Cr .P.C."
10. Furthermore, although it was the prosecution case that the Appellants were transporting narcotics in Car No.LWR-5445 and had concealed most of packets in its secret cavities, neither the said nor its registration book was produced at the trial.
11. Haq Nawaz/Inspector (PW-1) also deposed that he prepared six sealed sample parcels of 10 grams each of charas and four sealed sample parcels each of opium for chemical analysis. However , he did not make clear as to whether he made those parcels from a single packet or from different packets. Either way these samples cannot be considered as representative samples in view of the law laid down by the Hon'ble Supreme Court of Pakistan in "Ameer Zeb v . The State" (PLD 2012 SC 380 ).
12. Report of the Government Analyst under section 36(2) of the CNSA is of pivota l importance in narcotics cases.
In order to succeed the prosecution is required not only to prove the factum of recovery but also produce positive report of the Government Analyst drawn in accordance with law elucidated by the Hon'ble Supreme Court in The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ) and Khair-ul-Bashar v.
The State (2019 SCMR 930). In the instant case, the reports of the Chemical Examiner Exh.PJ and Exh.PK produced to prove that the recovered substances were contraband charas and opium lack credibility because safe transmission of sample parcels to the laboratory has not been established. Haq Nawaz/Inspector (PW-1) deposed in his examination-in-chief that he sent the samples to the Chemical Examiner's office through Nazir Ahmad while perusal of the reports Exh.PJ and Exh. PK reveal that they were received through Nadeem Ahmad/Inspector . The prosecution neither produced the said Nazir Ahmad nor Nadeem Ahmad/Inspector at the trial. Even otherwise, the reports Exh.PJ and Exh.PK are defective . They reflect that two sealed parcels of charas and two sealed parcels of opium were received in his office on 13-04-201 1. Instead of preparing separate reports for each sample containing details of the protocols applied, the Chemical Examiner drew up consolidated reports for the aforesaid samples.
This was a flagrant disregard of Rule 6 of the Control of Narcotic Substances (Gov ernment Analysts) Rules, 2001, which renders the reports nullity in the eye of law .
13. Under section 36 of the CNSA the report of the Government Analyst is admissible in evidence per se and is a conclusive proof of the facts stated therein. There is no cavil that photocopy of the report cannot be equated with the original. In this respect reference may be made to Muhammad Siddique alias Bheria v. The State (2005 PCr.LJ 726) with considerable advantage. In the instant case, reports Exh.PJ and Exh.PK were not produced in original and the prosecution did not even lead secondary evidence to prove them. Hence, they cannot be used against the Appellants.
14. This is not all. The prosecution failed to prove safe custody of the remaining case property which was also essential. According to Haq Nawaz/Inspector , he put the same in an iron box (P-6): and deposited it in the customs warehouse. Thereafter , on 29-03-2014, Farrukh Khalil/Inspector (PW-2) and he handed over the said iron box to Muhammad Nawaz/SI (PW-6). The prosecution did not examine any official from the warehouse who could testify about safe custody of the case property . The statement of Zahid Iqbal 1286/HC (PW-4), Moharrar of Police Station Seetal Mari, is also in conflict with that of Haq Nawaz/Inspector as he stated that he received the iron box from him and Farrukh Khalil/Inspector . Moreover , P-6 produced before the trial Court showed signs of tampering. Following I excerpt from the cross-examination of Haq Nawaz/Inspector is quite instructive: "I myself sealed Exh. P6. Six seals were affixed on P.6. P.6 is present in the court which is the same which was handed over to the I.O. At this stage, learned counsel for the accused submits that P.6 be examined by this Court.
The request being genuine one is allowed. P.6 was examined. It is observed that the iron box contains two locks.
Koonda of one lock is found slightly broken. There is no signatures and seal stamp on one Koonda of iron box.
There are locks wrapped with solution tape but sealed. There is no seal stamps and signatures on the lock."
15. For all the above reasons the conviction and sentence handed down to the Appellants by the learned trial Court cannot be sustained. Hence, we allow this appeal, set aside impugned judgment dated 13-08-2015 and acquit the Appellants of discharge. They shall be released from jail forthwith if not required to be detained in some other case.