' SHEIKH ABDUR RAZZAQ, J.--- Briefly stated the facts are that on 15-4-1999 Muhammad Aslam, S.-1./S.H.O. Police Station Anti-Narcotics Force, Bahawalpur was present alongwith Rashid Ahmad H.C., Muhammad Ashraf, Faiz Muhammad, Akbar Ali, Muhammad Yasin, Muhammad Akram and Muhammad Naeem, Constables near City Hotel in connection with checking of narcotics. He received a secret information that a known peddler Tassawar Hussain of Khairpur Tamewali is about to enter Shandara Colony for the supply of heroin. On receipt of such information he arranged a raiding party and proceeded to the said place. As a result of his Nakabandi a person holding a shopper in his hand was caught who later on disclosed his name as Tassawar Hussain son of Mian Nawaz Hussain. His personal search was conducted and it was found that the said shopper contained heroin weighing 1 kilogram. As a result of his further personal search he was found in possession of Rs,50 lying in his front pocket. He separated 10 grams of heroin for sending the same to the Chemical Examiner and made a sealed parcel of the same as well as of the remaining heroin. He then secured the heroin vide memo. Exh.P.A. And lodged a complaint under section 9-B of Control of Narcotic Substances Act, 1997. He then sent the same through Muhammad Yasin constable for formal registration of case at Police Station A.N.F., Bahawalpur.
After usual investigation he submitted the challan in the Court.
2. A charge under section 9-B of Control of Narcotic Substances Act, 1997 was framed to which he pleaded not guilty and claimed trial.
3. In order to bring home guilt to the accused, the prosecution examined Muhammad Aslam, Inspector (complainant) P.W. 1 who reiterated his version as contained in complaint Exh.P.B. He further stated that he had prepared site plan Exh.P.C. Of the place of recovery and also recorded the statement of witnesses. He further stated that he had secured heroin as well as currency note of Rs,50 vide memo. Exh.P.A. Muhammad Hussain, Constable P.W.2 deposed that on 17-4-1999 Rahim Javaid H.C. Gave him one sealed parcel for onward transmission to the Chemical Examiner which he deposited there intact on the same date. Faiz Muhammad, Constable P.W.3 is a member of the raiding party who has corroborated the prosecution version which has come on record through the statement of Muhammad Aslam complainant. Rahim Javaid H.C. P.W.4 deposed that on 15-4-1999 he was posted as Moharrir/H.C. At Police Station Anti-Narcotics Force, Bahawalpur. On the same day he received complaint Exh.P.B. Sent by Muhammad Aslam, Inspector/S.H.O. Through Muhammad Yasin constable and he drafted a formal F.I.R. Exh.P.B./1 which bears his signatures. He further deposed that on the same day he was handed over two sealed parcels of heroin for keeping the same in Malkhana. On 17-4-1999 he handed over one sealed parcel to Muhammad Hussain, Constable for onward transmission to the office of the Chemical Examiner, Multan. He further submitted that he was given, five currency notes of Rs,10 each on 15-4-1999 by the S.H.O. For keeping the same in Malkhana. Thereafter, the learned Special Public Prosecutor produced report of the Chemical Examiner Exh.P.D. (subject to objection) and closed prosecution case vide his statement, dated 22-3-2000.
4. When examined under section 342, Cr.P.C. The accused/appellant denied the prosecution version and stated that he was taken into custody by Muhammad Aslam, Inspector/S.H.O. P.W.1 on 11-4-1999 from his shop situated within the local limits of Police Station Khairpur Tamewali, that he was neither produced before any local police nor before Magistrate. He also denied the factum of recovery and stated that the same has been planted upon him, that he was involved in this case due to local rivalry and hostility, that as a result of his personal search a sum of Rs,25,000 was secured by Muhammad Aslam, Inspector/S.H.O. On'11-4-1999, that Muhammad Aslam, Inspector/S.H.O. Agreed to release him provided he does not claim the aforesaid amount, that as he did not agree to his proposal so he was implicated in this case falsely. He further stated that no recovery of heroin was effected from him so the report of the Chemical Examiner does not concern him. He also questioned the report of Chemical Examiner having not been prepared by a Government Analyst as required by sections 34, 35 and 36 of the Control of Narcotic Substances Act, 1997. He further, stated that neither he would adduce the evidence in his defence nor record his own statement under section 340(2), Cr.P.C.
5. After going through the evidence of prosecution and hearing the learned counsel for the parties, the learned trial Court convicted the accused/appellant under section 9-B of Control of Narcotic Substances Act, 1997 and sentenced him to 7 years imprisonment and fine of Rs,50,000 or in default thereof to further undergo R.I. For one year. The accused/appellant has felt aggrieved of the said judgment and filed the instant appeal.
6. We have heard the learned counsel for the appellant as well as the Special Public Prosecutor and have gone through the record.
7. It is submitted by the learned counsel for the appellant that the prosecution evidence consists of solitary statement of Muhammad Aslam complainant P.W.1 as he admits that he had not recorded statements of Rashid Ahmad H.C., Muhammad Ashraf, Muhammad Yasin, Muhammad Akram and Muhammad Naeem Constables who were with him at the time of raid, that there being no corroboration of solitary statement of Muhammad Aslam complainant, the impugned judgment cannot be sustained, that there are also discrepancies regarding the very recovery of heroin as P.W.1 talks of shopper and further deposes that heroin was wrapped in a cloth in the said shopper whereas he stands contradicted by P.W.3 Faiz Muhammad who talks of only shopper but does not talk of cloth containing the said heroin, that similarly there are discrepancies regarding factum of recovery of Rs,50 from the accused, that as per complaint Exh.P.B. Five currency notes of Rs,10 were recovered, whereas only one currency note of Rs,50 was brought on record through the statement of complainant P.W.1, that the prosecution has tried to corroborate its case from the report of the Chemical Examiner Exh.P.D., but no reliance can be placed on such report as it has not been issued by a Government Analyst as contemplated by sections 34, 35 and 36 of Control of Narcotic Substances Act, 1997 and the said report does not refer to the tests on the basis of which such report has been prepared, that in absence of details of tests applied for coming to conclusion no reliance can be placed on such report and placed reliance upon Khalid Sultan v. The State 1985 PCr.LJ 241 (Lahore), that Chemical Expert is not Chemical Examiner as such said report is of no legal effect, that such document, being not a public document cannot be legally tendered in evidence except through primary evidence within the meaning of Articles 73, 75 and 59 of Order 1984 and placed reliance upon Abdul Rashid v. State 1998 PCr.LJ 451, that out of the alleged heroin recovered from the possession of accused/appellant only 10 grams heroin was sent to the Chemical Examiner so it will be presumed that only 10 grams of heroin was recovered and consequently case if at all, shall fall within the ambit of section 9-A of Narcotic Substances Act, 1997 and conviction and sentence under section 9(b), Control of Narcotic Substances Act is not warranted by law. He, thus, submitted that all these facts make the case of the prosecution highly doubtful, as such appeal be accepted and appellant be acquitted
8. Conversely the impugned judgment has been supported by the learned Special Public Prosecutor. To supplement his contention be submitted that no question regarding factum of recovery has been put to the Investigating Officer as such recovery of heroin stands proved, that report of the Chemical Examiner Exh.P.D. Has been prepared under section 36 of Control of Narcotic Substances Act, as such the same is admissible per se under section 510, Cr.P.C., that all P.Ws. Have been subjected to lengthy cross-examination but defence has failed to impeach their credibility, that there is no force in this appeal and the same be dismissed.
9. The allegation against the accused/appellant is that he was found carrying a shopper at the time of raid which contained heroin weighing 1 kilogram. This assertion of the prosecution stands corroborated not only from the statement of the complainant Muhammad Aslam, Inspector/S.H.O.
Who headed the raiding party and caught hold the appellant on the spot, but also by Faiz Muhammad Constable who was also a member of raiding party.
' Again it is admitted fact that P.W.1 was not cross-examined on the point of recovery of heroin from the appellant, as such recovery stands proved. The factum of recovery further stands proved from the fact that parcels of heroin were handed over to the Mohrarrir on the day of recovery and later on sample parcel was given by Rahim Javaid Moharrir H.C. To Muhammad Hussain, Constable for its transmission to the office of Chemical Examiner, Multan, that this very parcel was delivered in the said office on 17-4-1999, that all these facts prove that heroin was recovered from the appellant and was sent to the office of Chemical Examiner for its examination and report. Learned counsel for the appellant has referred to contradiction regarding shopper containing cloth and shopper simplicitor, but this contradiction is of no significance, as the question to be resolved is if heroin was recovered from the appellant or not. On this score there is no difference in the statements of P.W.1 and P.W.3. Thus, it is proved that heroin was recovered from the appellant.
10. Much emphasis has been laid on the report of Chemical Examiner Exh.P.D. The stand of learned counsel for the appellant is that report Exh.P.D. Is of no legal value as it does not contain the result of tests applied for coming to the conclusion that the substances recovered was heroin and has also placed reliance upon Khalid Sultan v. The State 1985 PCr.LJ 741 and Abdul Rashid v. State 1998 PCr.LJ 451. A perusal of report Exh.P.D. Reveals that on the basis of test mentioned therein it has been declared that the said parcel contained heroin, as such said authorities are not applicable to the facts in hand. Again in 1998 PCr.LJ 451, the sample was sent after lapse of two months of recovery, whereas in the instant case it has been sent after two days of the recovery. The report of the Chemical Examiner has also been assailed on the ground that it contravenes the provisions of sections 34 and 35 of Control of Narcotic Substances Act, 1997. This objection is also devoid of any force in view of the Notification No,SRO.596(1)/97 which is reproduced as follows:-- '"In exercise of the powers conferred by section 34 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleaded to notify the Pakistan Council of Scientific and Industrial Research Laboratories (PCSIR), Lahore, National Institute of Health Laboratory, Islamabad, Sindh Laboratory of Chemical Analysis Karachi, PCSIR Laboratory Karachi, PCSIR Laboratory , Peshawar and Central Drug Laboratory, 7th Central Street Defence Housing Authority, Karachi and all Narcotics Testing Laboratories set up by the Provincial Governments to be the Federal Narcotics Testing Laboratories for the purpose of the said Act."
11. A perusal of Notification reveals that all Narcotics Testing Laboratories set up by the Provincial Governments have been declared to be Federal Narcotics Testing Laboratories for the purpose of this Act. It is, thus, clear that the report of Chemical Examiner shall be a report as contemplated under section 34 of Control of Narcotic Substances Act, 1997 and similarly the Chemical Examiner and Assistant Chemical Examiner appointed therein shall be considered to be Government Analyst as stipulated by section 35 of Control of Narcotic Substances Act, 1997.
12. For what has been discussed above, it is proved that the impugned judgment has been passed after examining, analyzing and scrutinizing evidence adduced on record. Accordingly we do not find any force in the submissions of the learned counsel for the appellant and consequently dismiss the appeal.