Aalia Neelum, J. The appellant-Nadeem Arshad son of Muhammad Arshad, caste Kahlo Jatt, Temporary resident of 12-Ashton Gardens Rochdale, OL11354 Lares, U.K, permanent resident of E-25-7-A, Farooq Colony , Walton, Lahore, was involved in case F.I.R No.14 of 2012, dated 28.03.2012, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997 registered at Police Station A.N.F , District Lahore and was tried by the learned Judge, Special Court, C.N.A, Lahore. The learned trial court seized with the matter in terms of judgment dated 16.06.2015, convicted the appellant under section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo 14-years rigorous imprisonment with the direction to pay Rs.2,00,000/- as fine and in case of default in payment thereof, to further undergo 01-year simple imprisonment. 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 instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.P A) lodged on the complaint (Ex.PE) of Haroon Tariq Inspector/S.H.O (PW-4)-the complainant is that on 28.03.2012, high ups received secret information that Nadeem Arshad (the appellant), being involved in narcotics smuggling, would try to smuggle heroin abroad via Allama Iqbal International Airport from Main Bazar , Workshop Stop, at 01:00 a.m. (night). Upon this information, a raiding party comprising of the complainant (PW-4), Taqi Abbas Inspector (PW-3) and other officials of ANF was constituted under the supervision of Qadeer Ahmad Baig, D.D and they while boarding on official vehicle reached Workshop Stop, Walton Road at 12:30 a.m. (night) and after parking the vehicles, started secret surveillance. At 01:30 a.m.
(night), a person having brown suite case came from the side of Main Bazar Workshop stop and stopped at a drain near Walton road and on pointation of informer , said person was apprehended. On interrogation, he disclosed his name as Nadeem Arshad (the appellant). Upon search of his suite case, brown coloured heroin concealed beneath the suite case wrapped in double polythene was recovered and on weighing the same it was found 10.110 - kilograms, which the complainant (PW-4) took into possession through recovery memo (Ex.PB). Out of the recovered substance, 10-grams heroin was separated for chemical analysis. The complainant drafted complaint (Ex.PE) and sent the same through Muhammad Asif/C to the Police Station for registration of the formal FIR (Ex.P A).
3. After recording evidence and 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.
4. We have heard the arguments advanced by the learned counsel for the appellan t as well as the learned Special Prosecutor for ANF and have minutely perused the record available on the file.
5. To prove the nature of substance, the chemical analysis report (Exh.PF) was relied upon by the prosecution.
There is a serious defect in the report of the Chemical Analyst (Exh.PF) 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 applied. 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 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 existence of the report "with prescribed form".
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 the same were mentioned on the back of the chemical examiner report (Exh.PF).
6. In examining a "Heroin" sample in a criminal case, the primary necessity is, of course, to identify the heroin (diacetylmorphine) with complete certainty , or to identify the narcotic, whatever it may be. For the reasons that the statute insists on mentioning of the test applied for indication of the kind of contraband substance entire stuff analyzed. At the back of the chemical examiner report (Exh.PF) the following stamp having results was imposed:- (Heroin)
Report Form No.----------- Red No.------------------- Physical appearance--------------------- earthy powder Nitric Acid Test___________________ Marquis Test Positive---------------------- Macke test______________________ Frohde Test_____________________ H2 SO4 Pot. Fa. Cyanide Feel 3 Test_ TLC-------------------------------------------------- On perusal of the chemical examiner report (Exh.PF), it reveals that only Marquis Test was applied and expert expressed his opinion on its basis that the sample is positive. The analysts applied only Marquis reagent test.
Marquis Reagent is used for the presumptive identification of Opiates (Morphine, Codeine or Heroin), however , it does not give clear differentiation between morphine, codeine and heroin. Whereas, the Mecke reagent is used as a simple spot-test to presumptively identify alkaloids as well as other compounds. The specific spot test to determine the presence of heroin in a sample is Nitric Acid. The reaction of a substance with the concentrated nitric acid makes it possible to differentiate between morphine (orange red color), its derivate codeine (orange color) and heroin (yellow color). Since only one test has been performed, therefore it does not substantiate Heroin confirmation. For the evidence of heroin, it is necessary to get the other tests done as well i.e. Marquis, Mecke and Nitric Acid. Only Marquis positive test does not substantiate Heroin confirmation. Vide report (Exh.PF) Chemical Examiner opined that on analyzing the sample, the same gave positive report for Marquis test which only shows that sample contains Opiates (Morphine, Codeine or Heroin) but not nature or kind of Opiates (Morphine, Codeine or Heroin). Therefore, in a nut-shell in a case of recovery of Heroin, for presence of heroin in the sample Mecke and Nitric Acid test is required . The required test for analysis of heroin are Marquis' Reagent, Mecke and nitric acid. At the back of the chemical examine r report (Exh.PF) columns of stamp related to Mecke and Nitric Acid were left blank. Since, the patent infirmity has been noticed in the report (Exh.PF) which is found to be fatal to the prosecution case. The conclusion that possibly be drawn from the discussion hereinabove is that the court below has thoroughly failed to advert to the above aspects while passing the impugned judgment. The court below has not evaluated the evidence of the prosecution in a proper manner . In view of the inconsistencies that loom large in the evidence relied on by the prosecution and the legal flaws as existing, the case alleged by the prosecution against the accused is not sustainable and the accused would be entitled to the benefit of doubt. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant.
Accordingly , the findings of the learned trial court in this regard are required to be set aside and the same are set aside.
7. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused appellant, Nadeem Arshad for the offence under Section 9 (C) of The Control of Narcotic Substances Act, 1997. Thus, the findings of the learned Judge Special Court (CNS), Lahore qua conviction of the appellant-Nadeem Arshad for the above said offence are liable to be set aside and the same are set aside and as a consequence whereof, the appeal No.2008 of 2015 is accepted and the appellant-Nadeem Arshad is ordered to be acquitted of the charge in case F.I.R. No.14/2012, dated 28.03.2012, offence under Section 9(C) of The Control of Narcotic Substances Act, 1997, registered at Police Station, ANF, Lahore. The appellant- Nadeem Arshad is in jail and he (the appellant) is ordered to be released forthwith, if not required in any other case.